Judge Michael P. Linfield, Case 22STCV18744 2023-01-31 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV18744, Date: 2023-01-31 Tentative Ruling

Case Number: 22STCV18744 Hearing Date: January 31, 2023 Dept: 34

SUBJECT: Motion to Compel Plaintiff’s Responses to Form Interrogatories and for Sanctions of $744

Moving Party: Defendants PHH Mortgage Corporation; Deutsche Bank National Trust Company as Trustee for IndyMac INDX Mortgage Loan Trust 2007-AR7, Mortgage Pass-Through Certificates Series 2007-AR7; Western Progressive; and Western Progressive, LLC

Resp. Party: None

SUBJECT: Motion to Compel Plaintiff’s Responses to Requests for Production and for Sanctions of $886.50

Resp. Party: None

Defendants’ FROGs Motion is GRANTED. Defendants’ RPDs Motion is GRANTED. Plaintiff is ordered to produce responses to within thirty (30) days. Monetary sanctions are awarded for Defendants and against Plaintiff in the total amount of $490.50.

PRELIMINARY COMMENT:

The Court previously noted in its Preliminary Comment to its Order dated October 6, 2022 (regarding Defendant’s Demurrer) that the Court was surprised that Plaintiff, who is representing himself, did not oppose the Demurrer.

The Court is again surprised that Plaintiff has not responded to Defendants’ requests for discovery. While the Court recognizes that to the pro per litigant, “law and motion proceedings” are “baffling devices,” that does not excuse Plaintiff from participating in the case that he initiated. (Bruno v. Superior Court (1990) 219 Cal.App.3d 1359, 1363, quoting Burley v. Stein (1974) 40 Cal.App.3d 752, 755, fn. 3.) The Court again reminds Plaintiff that he must comply with the rules of court, as well as with his statutory requirements regarding discovery.

BACKGROUND:

On June 8, 2022, Plaintiff Llewellyn C. Werner, in propria persona, filed his Verified Complaint against Defendants PHH Mortgage Corporation (“PHH”); Deutsche Bank National Trust Company as Trustee for IndyMac INDX Mortgage Loan Trust 2007-AR7, Mortgage Pass-Through Certificates Series 2007-AR7 (“Deutsche Bank as Trustee”); Western Progressive; and Western Progressive, LLC (“Western Progressive” and, collectively, “Defendants”).

On October 6, 2022, the Court: (1) sustained with leave to amend Defendants’ Demurrer as to the first cause of action listed in the Complaint; (2) sustained without leave to amend Defendants’ Demurrer as to the second, third, eighth, and ninth causes of action listed in the Complaint; and (3) overruled Defendants’ Demurrer as to the fourth, fifth, sixth, seventh, and tenth causes of action listed in the Complaint.

On October 25, 2022, Defendants filed their Verified Answer.

On December 27, 2022, Defendants filed: (1) Motion to Compel Plaintiff’s Responses to Form Interrogatories and for Sanctions of $744 (“FROGs Motion”); and (2) Motion to Compel Plaintiff’s Responses to Requests for Production and for Sanctions of $886.50 (“RPDs Motion”).

Plaintiff has not filed an opposition or other response to the motions, nor has Plaintiff filed an amended pleading.

ANALYSIS:

For ease of analysis, the Court considers the motions together.

I. Legal Standard for Motions to Compel Initial Responses to Form Interrogatories and Requests for Production

California Code of Civil Procedure requires a response from the party to whom form interrogatories, special interrogatories, and demand requests are propounded within 30 days after service of the requests, unless the time is extended by agreement of the parties. (Code Civ. Proc., §§ 2030.260, subd. (a), 2030.270, subd. (a), 2031.260, subd. (a), 2031.270, subd. (a).) If a party fails to serve timely responses, "the party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc., § 2030.300, subd. (b).) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc., § 2030.290, subd. (a).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905, 906.) Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial court had authority to grant [opposing party's] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations.¿ (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404 (emphasis in original).) ¿“If a party fails to serve a timely response, and the propounding party moves for and obtains a court order compelling a response, the trial court must impose a monetary sanction against the delinquent party unless that party acted with ‘substantial justification’ or the sanction would otherwise be unjust.” (Id. (quoting Code Civ. Proc., §§ 2030.290, subd. (c),¿2031.300, subd. (c).)

II. Discussion

A. Form Interrogatories

Defendants move the Court to compel Plaintiff to respond to the following form interrogatories (FROGs) within 14 days of the hearing: 1.1 and 2.1 through 2.12. (FROGs Motion, p. 4:12–14 and Ex. A.) Defense Counsel declares that Plaintiff never responded to Defendant’s service of form interrogatories. (FROGs Motion, Decl. Cooper, ¶¶ 4–5.)

The Court does not have any evidence before it that would indicate Plaintiff has served responses to the form interrogatories.

The Court GRANTS Defendants’ FROGs Motion. However, as Plaintiff is representing himself and Trial is still nearly six months away, the Court orders Plaintiff to provide responses within 30 days instead of the requested 14 days.

B. Requests for Production of Documents

1. Requests Propounded

Defendants have propounded the following requests for production of documents (RPDs) upon Plaintiff:

REQUEST FOR PRODUCTION NO. 1:

All DOCUMENTS and COMMUNICATIONS exchanged between YOU and DEFENDANTS.

REQUEST FOR PRODUCTION NO. 2:

All DOCUMENTS reflecting COMMUNICATIONS between YOU and DEFENDANTS, including but not limited to records of telephone calls.

REQUEST FOR PRODUCTION NO. 3:

All DOCUMENTS and COMMUNICATIONS exchanged between YOU and any other PERSON concerning the LOAN, PROPERTY, or DEFENDANTS.

REQUEST FOR PRODUCTION NO. 4:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR contention that “There were two (2) deaths and the banks and servicing company failed to properly serve the true owners, because you CANNOT SERVE DEAD PEOPLE unless it is done legally through Probate court,” including but not limited to death certificates, probate records, and statutes supporting said contention.

REQUEST FOR PRODUCTION NO. 5:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR contention that “none of the Defendants in this action had the right to declare default, cause notices of default to be issued or recorded or foreclose on Plaintiffs interest in the Subject Property.”

REQUEST FOR PRODUCTION NO. 6:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR contention that “none of the signatories to the NOD, SOT, First NOS, Second NOS, Assignment of DOT, and TDUS had the authority to execute said documents.”

REQUEST FOR PRODUCTION NO. 7:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR contention that DEFENDANTS “breached its obligation to Plaintiff to modify the loan by proceeding with a foreclosure of the Subject Property when U.S. BANK had agreed not to do so.”

REQUEST FOR PRODUCTION NO. 8:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR contention that DEFENDANTS “agreed to postpone any sale if Plaintiff applied for a modification of the Loan and even took agreed-upon monthly payments as consideration for such agreement,” including but not limited to any application, copies of cashed checks, and bank statements showing payments.

REQUEST FOR PRODUCTION NO. 9:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR contention that DEFENDANTS “received a substantial amount of TARP funds from the federal government.”

REQUEST FOR PRODUCTION NO. 10:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR contention that YOU paid off the LOAN on or by October 29, 2019, including but not limited to copies of any cancelled checks, wire transfer confirmations, and bank statements showing payment.

REQUEST FOR PRODUCTION NO. 11:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR contention that “Quality Loan, again purportedly but falsely acting as either the trustee or the agent of the beneficiary of the Deed of Trust, wrongfully and without privilege, caused two Notices of Trustee's Sales to be recorded against the Subject Property,” including but not limited to the Notices of Trustee’s Sale.

REQUEST FOR PRODUCTION NO. 12:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR contention that “Quality Loan, again purportedly but falsely acting as either the trustee or the agent of the beneficiary of the Deed of Trust, wrongfully and without privilege, caused a Trustee's Deed Upon Sale to be recorded against the Subject Property,” including but not limited to the Trustee’s Deed Upon Sale.

REQUEST FOR PRODUCTION NO. 13:

All DOCUMENTS CONCERNING title to the PROPERTY since March 1, 2007, including but not limited to copies of all deeds.

REQUEST FOR PRODUCTION NO. 14:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR income since January 1, 2016, including but not limited to copies of all W2s, tax returns, profit and loss statements, benefits statements, and bank statements.

REQUEST FOR PRODUCTION NO. 15:

All DOCUMENTS and COMMUNICATIONS CONCERNING the damages YOU claim to be owed as a result of DEFENDANTS’ alleged actions or inactions. (This request should be read broadly to refer to any and all types of alleged damages, whether monetary or non-monetary, including but not limited to actual damages, general damages, special damages, consequential damages, statutory damages, costs, expenses, attorneys’ fees, etc.)

(RPDs Motion, Ex. A.)

2. Analysis

Defense Counsel declares that Plaintiff never responded to Defendant’s service of RPDs. (RPDs Motion, Decl. Cooper, ¶¶ 4–5.)

The Court does not have any evidence before it that would indicate Plaintiff has served responses to the RPDs. Moreover, each of the RPDs is relevant and sufficiently narrow.

The Court GRANTS Defendants’ RPDs Motion. However, as Plaintiff is representing himself and Trial is still nearly six months away, the Court orders Plaintiff to provide responses within 30 days instead of the requested 14 days.

C. Sanctions

Plaintiff has failed to serve a timely response to the FROGs and RPDs. The Court does not have evidence before it that would indicate Plaintiff acted with substantial justification or that there are other circumstances that would make the imposition of a sanction unjust. Thus, the Court must impose a monetary sanction on Plaintiff. (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)

Defendants request $744.00 in monetary sanctions against Plaintiff for the FROGs Motion and $886.50 in monetary sanctions against Plaintiff for the RPDs Motion. Defense Counsel declares that he incurred a $60 filing fee for each of the motions, that he charges $285.00 per hour, that he spent 0.4 hours on the FROGs Motion and 0.9 hours on the RPDs Motion, and that he expects to spend two hours each regarding oppositions and replies. (FROGs Motion, Decl. Cooper, ¶ 6; RPDs Motion, Decl. Cooper, ¶ 6.)

The Court finds that the costs, hourly rate, and hours worked on the motion are all reasonable. However, as there has been no opposition or reply filed regarding these motions, the Court will not award attorney’s fees for hours that have not actually been expended.

The Court awards monetary sanctions for Defendants and against Plaintiff in the total amount of $490.50.

III. Conclusion