Judge Ronald F. Frank, Case Number: 22TRCV00444, Date: 2023-09-26 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00444, Date: 2023-09-26 Tentative Ruling

Case Number: 22TRCV00444 Hearing Date: September 26, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: September 26, 2023

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CASE NUMBER: 22TRCV00444

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CASE NAME: William Tyler Horn, Trustee of The William Tyler Horn Revocable Trust Dated May 18, 2009 v. Reverse Mortgage Solutions, Inc.; Bank of America, N.A.; American Home Mortgage Servicing Inc.; and Does 1-10, inclusive.

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MOVING PARTY: Defendant Reverse Mortgage Solutions, Inc.

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RESPONDING PARTY: None

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TRIAL DATE: February 13, 2024

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MOTION:¿ Motion for Terminating Sanctions

Tentative Rulings: (1) Motion for Terminating Sanctions is CONTINUED to October 12, 2023, at 8:30 a.m. in Dept. 8. The Court orders defense counsel to serve Plaintiff with Notice of this tentative ruling, with its WARNING TO PLAINTIFF that the Court will dismiss the lawsuit as a sanction for his failure to comply with the July 12, 2023 order of this Court that Plaintiff provide verified, full and complete answers without objection to the form and special interrogatories and to provide verified written responses and to produce the required documents without objection. If Plaintiff serves the verified responses and produces the documents on defense counsel at least 48 hours before the October 12 hearing, the Court will not dismiss the case.

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I. BACKGROUND¿¿

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A. Factual¿¿

Plaintiff William Tyler Horn, Trustee of The William Tyler Horn Revocable Trust Dated May 18, 2009 (“Plaintiff”) filed this action against Reverse Mortgage Solutions, Inc. (“RMS”) Bank of America, N.A. (“BofA”); American Home Mortgage Servicing Inc. (“AHMS”) on June 7, 2022. RMS filed an Answer on November 7, 2022.

On February 16, 2023, RMS served its first set of written discovery requests on Plaintiff, including Form Interrogatories, Set One; Request for Admissions, Set One; Special Interrogatories, Set One; and Request for Productions Documents, Set One. The responses were due March 23, 2023. The Court noted that RMS propounded this discovery on Plaintiff after Plaintiff’s no longer had a lawyer, i.e., after former counsel was granted relief from the representation on March 20, 2023. RMS’ motion papers on its motions to compel and for deemed admissions showed that Plaintiff did not provide any responses to the written discovery requests.

On July 12, 2023, the Court granted RMS’s Motions to Compel as to the first sets of Form Interrogatories, Special Interrogatories and Request or Production of Documents, and Ordered Plaintiff to provide verified responses, under oath and without objections, by August 11, 2023. As to RMS’s Motion to Deem Matters and Documents Admitted, the Court granted the motion deeming the requests admitted and that the attached documents are genuine.

On August 11, 2023, RMS sent correspondences to Plaintiff via U.S. Mail and email, indicating that RMS would be proceeding with a Motion for Terminating Sanctions if RMS did not hear back from Plaintiff by August 17, 2023. (Spaeder-Younkin Decl., ¶9, Exh. F.) RMS has not received any record that the letter was returned to their office via U.S. mail. (Spaeder-Younkin Decl., ¶ 9.) Additionally, the email bounced back as undeliverable. (Spaeder-Younkin Decl., ¶9.) RMS is not aware of any other email or address to which to send Plaintiff correspondence. (Spaeder-Younkin Decl., ¶9.) To date, Plaintiff has failed to provide any responses in direct violation of this Court’s order.

On August 22, 2023, RMS filed a motion for terminating sanctions and to dismiss Plaintiff’s lawsuit with prejudice due to Plaintiff’s failure to comply with court orders. In the alternative, RMS requests issue and evidence sanctions prohibiting Plaintiff from introducing testimony, witnesses, documents, or other evidence that Plaintiff failed to produce or explain in discovery. In addition, RMS seeks an award of monetary sanctions for $1,957.50 for the expense of this motion.

B. ¿ Procedural

On August 22, 2023, RMS filed a motion for terminating sanctions or in the alternative, issue and evidence sanctions.

No opposition was filed.

On September 14, 2023, RMS filed a “Reply” in support of their motion for terminating sanctions or in the alternative, issue and evidence sanctions, which is essentially a statement of non-opposition to the motion

¿II. MEET AND CONFER

There has been no meet and confer. It was attempted, unsuccessfully, by moving party.

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¿III. ANALYSIS¿

A. Legal Standard ¿

¿If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. Code Civ. Proc. § 2025.450, subd. (h) (depositions); § 2030.290, subd. (c) (interrogatories); § 2031.300, subd. (c) (demands for production of documents); § 2033.290, subd. (e) (requests for admission). Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . .¿ [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . .” Section 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . (g) Disobeying a court order to provide discovery. . .”¿¿

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“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 [citation omitted].)¿¿¿¿

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“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Id., citing Lang, supra, 77 Cal. App. 4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)¿¿

Issue sanctions may be imposed “ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Code of Civ. Proc. § 2030.030(b).)

Evidence sanctions may be imposed “by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code of Civ. Proc. § 2030.030(c).)

B. Discussion

¿On July 12, 2023, the Court issued an order requiring Plaintiff to provide verified responses to RMS’s Form Interrogatories, Special Interrogatories, and Request or Production of Documents under oath and without objections by August 11, 2023. Defendant BofA served a Notice of Ruling attaching the Court’s July 12, 2023 Order to Plaintiff’s home address. The Order mistakenly does not include the ruling on RMS’s discovery motions, which were all granted, as set forth in the Notice of Ruling. (Spaeder-Younkin Decl., ¶6, Exhs. D, E.)

RMS asserts Plaintiff did not provide verified responses by August 11, 2023. On August 11, 2023, RMS sent mail and email correspondences to Plaintiff indicating RMS would proceed with a Motion for Terminating Sanctions if RMS did not hear from Plaintiff by August 17, 2023. (Spaeder-Younkin Decl., ¶9.) RMS did not receive any response.

RMS has submitted evidence suggesting Plaintiff failed to obey the Court’s order compelling him to provide verified responses in a manner that warrants terminating sanctions. But because of Plaintiff’s self-represented status, and because of the drastic nature of a terminating sanction, the Court has determined to continue the hearing on this motion and to give Plaintiff a further opportunity to comply with the Court’s order requiring him to respond to the normal discovery a defendant asks of a plaintiff in civil litigation. In Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793-784, the Second District noted: “The sanction of dismissal or the rendition of a default judgment against the disobedient party is ordinarily a drastic measure which should be employed with caution. [Citation] However, there is no question that a court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations. [Citation] The refusal to reveal material evidence is deemed to be an admission that the claim or defense is without merit. [Citations]” Here, the only evidence of Plaintiff’s willfulness in failing to comply with the Court’s order is that he failed to respond to the Court’s order to provide verified responses. There is no direct evidence that Plaintiff’s failure to respond is willful. Plaintiff is given one last chance. Plaintiff is ordered to serve verified responses no later than 48 hours before the continued hearing date of October 12, 2023. Any further failure to provide verified responses will evidence that sanctions lesser than terminating sanctions would not bring about Plaintiff’s compliance.

Counsel for defendant is to give written notice of this ruling, attaching a copy of the tentative ruling to its notice to make sure Plaintiff understands the consequences of a continued failure to comply with the July 12 discovery order.