TENTATIVE RULING 

Calendar:    3

Date:          1/24/2024 

Case No: 20 GDCV00503  

Case Name: Swingle v. Laguna

MOTION TO COMPEL EXTENDED DISCOVERY OF FINANCIAL RECORDS

Moving Party:            Plaintiff Katheryn Andrea Swingle       

Responding Party: Defendant Geovanny D. Laguna      

RELIEF REQUESTED:

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Katheryn Andrea Swingle alleges that plaintiff entered into a written agreement with defendant Geovanny D. Laguna and that defendant breached the agreement by intentionally misrepresenting the nature of certain investments, and has refused to repay funds due.  The First Amended Complaint alleges causes of action for breach of contract, common counts, and fraud. 

The file shows that on February 2, 2020, defendant filed an answer to the complaint. 

On November 17, 2021, plaintiff filed a First Amended Complaint.  On December 16, 2021, defendant filed an Amended Answer to Amended Complaint.   

The court then held various hearings in this matter, at which defendant failed to appear.  On June 9, 2022, at the Final Status Conference in the matter, there was no appearance by either side.  The court set an OSC re: Why Sanctions Should Not BE Imposed Per 177.5 CCP Against the Defendant For His Failure to Appear on 04/21/2022, 05/25/2022, and 06/09/2022, and an OSC Why The Defendant’s Answer Should Not Be Stricken for His Failure to appear at the same hearings.  An OSC re Sanctions in connection with plaintiff’s failure to appear that date was also issued.  The OSC hearings were scheduled for June 16, 2022, with the FSC also continued to that date.   The clerk was ordered to give notice, and did so.    

On June 16, 2022, the matters were called for hearing.  There were no appearances for plaintiff or defendant.  The court conducted the OSC hearing, noted that defendant had again failed to appear after notice had been given, and ordered defendant’s answer stricken, “for non-compliance pursuant to Los Angeles Superior Court Local Rules 3.10 and 3.25(f)(1) and CCP 575.2(a).”   The remaining OSCs were ordered discharged.  The matter was set for an OSC Re: Entry of Default.  Notice of the order was served by the clerk.  The Amended Answer was stricken.

On August 25, 2022, defendant filed an Unverified Answer to Plaintiff’s Unverified Complaint.   

On September 14, 2022, the court conducted an OSC Re: Entry of Default Judgment/Default Prove-Up Pursuant to CCP section 585.  There was no appearance for defendant.  The court’s minute order states:

“The Court notes that the defendant filed a second Answer on 08/25/2022. The Court strikes the Answer filed on 08/25/2022. No motion for relief from stricken Answer ordered on 06/6/2022 has been filed by the defendant. The plaintiff may proceed with a Request for Default.”

ANALYSIS:

Plaintiff Katheryn Andrea Swingle, as judgment creditor, has evidently been attempting to collect the judgment entered by the court. 

Plaintiff has filed this amended motion to extend discovery of financial records from what plaintiff indicates is permitted under California’s Voidable Transactions Act, a period of four years, to a period of eight years.  Plaintiff argues this is necessary because there is reason to believe that defendant/judgment debtor has transferred assets into accounts under his spouse’s name, or taken other actions to shield assets from collection, thereby evading plaintiff’s ability to collect the judgment amount.  

The motion requests the court compel the production of financial records for both defendant and his spouse, who is not a party to this action, covering a period from June 2, 2016 through October 25, 2024, including bank statements, federal and state tax returns business income records, asset transfer documents and joint financial account records.  

There are several problems with this motion.  As an initial matter, there is no proof of service submitted showing that the moving papers, consisting of an amended motion and declaration in support of amended motion, have been served on the judgment debtor or his spouse.  This lack of notice gives rise to issues of due process. 

Under CCP §1010, notices must be in writing, and “may be served upon the party or attorney in the manner prescribed in this chapter...”

CCP § 1005 (a) provides that written notice “shall be given,” for specified motions, including, “(13) Any other proceeding under this code in which notice is required, and no other time or method is prescribed by law or by court or judge.”   

CCP § 1005(b) provides: “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” 

Under CRC Rule 3.1300 (a): “Unless otherwise ordered or specifically provided by law, all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005…”  Under subdivision (c):  “Proof of service of the moving papers must be filed no later than five calendar days before the time appointed for the hearing.”

Here, there is no proof of service showing that the motion was ever served on defendant/judgment debtor, or his spouse, which may explain why there is no opposition to the motion.  Unless proof of service can be shown at the hearing, the court may not consider the motion as it has not been served on the opposing party. 

In addition, the moving papers do not cite to any statutory authority authorizing the court to issue orders compelling defendant/judgment debtor or his spouse to produce financial records to plaintiff/judgment creditor.  

The motion references California’s Uniform Voidable Transactions Act (UVTA), but cites to no statutory citation under that Act or any other authority which would permit the court to ascertain what section of that Act is being invoked, or give notice to the responding parties under what authority the requested relief is being sought.  The motion accordingly is denied on this ground. 

In addition, to the extent the motion seeks the records of judgment debtor’s spouse, Maria Alexandra Gomez Laguna, this person is not a party to this action. The judgment creditor has not established that this court has personal jurisdiction over this person, and there is no proof of service showing service on this party. This party is required to be personally served, with any papers in order for the court to obtain personal jurisdiction over this third party.  No service on this party by any means has been submitted. 

Moreover, the motion is confusing with respect to the availability of an order compelling production of financial records from a judgment debtor when ordinarily such discovery would be conducted pursuant to CCP sections 708.020 and 708.030, which permit a judgment creditor to propound interrogatories and document demands on a judgment debtor to obtain “information to aid in enforcement of the money judgment.”   Under CCP section 708.020(c), “Interrogatories served pursuant to this section may be enforced, to the extent practicable, in the same manner as interrogatories in a civil action.”   A similar provision applies to document demands.  CCP section 708.030. 

Under CCP §§ 2030.290 and 2031.300, where a party fails to timely serve responses to interrogatories or document demands, the party propounding the discovery “may move for an order compelling responses….”  

There is no reference to the propounding of discovery on judgment debtor pursuant to sections 708.020 or 708.030, provisions which are intended to be self-executing. There also is no indication that discovery propounded to which there has been no response, giving rise to a right to enforce plaintiff/judgment creditor’s discovery rights under the statutes.   

Finally, to the extent the motion appears to be based on a factual argument that relief is warranted because defendant has represented limited assets and income, but evidence suggests that defendant may have transferred assets into accounts under his spouse’s name, or taken other actions to shield assets from collection, plaintiff/judgment creditor has submitted no evidence to support this argument.  The declaration submitted with the amended motion primarily addresses the reasons for the filing of the amended motion, and the way it differs from the original motion, and does not include any facts or evidence concerning the representations of defendant concerning his assets, or any need to expand the timeframe for discovery into financial information from four to eight years.   [See Declaration in Support of Amended Motion to Compel].  Discovery motions directed to judgment debtors concerning disclosure of financial information generally include evidence showing how such information is sought “to aid in enforcement of the money judgment,” and generally would include the text of the discovery, evidence showing to which such discovery there was no response and, where necessary, evidence, such as transcripts of judgment debtor examinations, showing why further information is believed to exist and should be compelled to be produced.  

  The motion suffers from numerous critical procedural failures, cannot be considered by the court must otherwise be denied.  

RULING:

[No Opposition]

Amended Motion to Compel Extended Discovery of Financial Record for 8 Years is DENIED.   There has been no proof of service filed showing service of the moving papers on defendant/judgment debtor or his spouse.  There is no proof of service showing how personal jurisdiction has been obtained with respect to the spouse, a third party to this action. 

Even if proof of service were submitted, the motion would be denied on several other procedural grounds.  The moving papers fail to provide sufficient notice of under what legal authority relief is being sought, as no statute is identified or case law cited.  It also does not appear that relief is properly sought under the discovery provisions pertaining to the enforcement of judgments.  Finally, no admissible evidence is submitted supporting any of the factual arguments made in the moving papers.   

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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