Judge: Sandy N. Leal, Case: 2021-01201431, Date: 2023-08-31 Tentative Ruling

1)   Motion to Compel Answers to Special Interrogatories

2)   Motion to Compel Further Responses to Special Interrogatories

3)   Motion to Compel Further Responses to Special Interrogatories

4)   Motion to Compel Production

5)   Motion to Compel Production

Motion 1: Motion to Compel Further Responses to Interrogatories

Defendant Newrez, LLC F/K/A New Penn Financial, LLC, D/B/A Shellpoint Mortgage Servicing’s (Defendant)’s Motion to Compel Further Responses to Interrogatories, filed 2-17-23 under ROA No. 279 is GRANTED in part and DENIED in part.

Defendant moves for an order compelling Plaintiff Michael Pierce (Plaintiff) to provide further responses to Defendants’ Form Interrogatories, Set One, numbers 2.7(d), 2.12, 6.1, 6.3, 6.4, 6.7, 7.2, 8.8, 9.1, 9.2,  11.2, 12.1, 14.1, 17.1, 50.1, 50.5 and Special Interrogatories, Set One, numbers 9, 12, 17, 19, 22-26, 33 and for an order imposing monetary sanctions in the amount of $2,652.50.

1.       Timeliness

Pursuant to Code of Civil Procedure section 2030.300, subdivision (c), a motion to compel further responses to interrogatories must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service.  (Code Civ. Proc., §§ 1013, subd. (a); 2030.300, subd. (c).)  The 45-day requirement of Code of Civil Procedure, section 2030.300, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (Sexton).)

Here, defense counsel Jonathan Cahill attests that the parties agreed to extend Defendant’s motion to compel deadline to 2-17-23. (Cahill Decl., ¶ 7.) The motion was filed on 2-17-23, and Plaintiff did not oppose on the grounds that it was untimely.

Because Mr. Cahill attests under penalty of perjury that Defendant’s motion to compel deadline was extended to 2-17-23 and Plaintiff does not oppose on the grounds that the motion is untimely, the Court finds that the motion is timely.

2.       Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., §; 2030.300, subd. (b)(1).)  The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., § 2016.040.)

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a reasonable and good faith attempt to obtain an informal resolution of each issue. This rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order. This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.)

To qualify as “reasonable and in good faith,” counsel’s meet and confer attempt must be a “serious effort” at negotiation and informal resolution, which “entails something more than bickering” with opposing counsel.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438.) It is “more than the mere attempt by the discovery proponent to persuade the objector of the error of his ways … the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clemente, supra, 177 Cal.App.4th at 1294.)

Here, Cahill attests that on 9-9-22, his office sent Plaintiff a meet and confer letter regarding why Defendant finds Plaintiff’s responses to discovery deficient. (Cahill Decl., Exhibit 3.) Cahill attests that Plaintiff did not respond to this letter. (Cahill Decl., ¶ 6.)

However, a review of Exhibit 3 demonstrates that it only addresses Plaintiff’s responses to Form Interrogatories and does not touch on Plaintiff’s responses to Special Interrogatories at all, even though some are at issue in this motion.

Based on the above, the Court finds that Defendant has met and conferred as required by Code of Civil Procedure section 2030.300 as to Plaintiff’s responses to Form Interrogatories. Although Defendant did not demonstrate that the parties engaged in a discussion about the sufficiency of Plaintiff’s responses, the meet and confer letter discusses Defendant’s arguments as to Form Interrogatories at some length and Plaintiff does not object that it is insufficient.

However, the Court finds that Defendant has not met and conferred as to Special Interrogatories because there was no mention of same in the 9-9-22 letter. Therefore, the Court DENIES the motion as to the request for order compelling further responses to Special Interrogatories due to failure to meet and confer.

3.       Merits

Because the Court DENIES the motion as to the Special Interrogatories at issue for failure to meet and confer, the Court will only consider the sufficiency of Plaintiff’s responses to Form Interrogatories.

No. 2.7(d): State: (d) the degrees received.

Plaintiff’s response is deficient and only states the institutions he attended and dates attended and makes no mention of degrees. (Separate Statement (ROA 268), 9:27-28.) Therefore, the Court grants the motion as to this interrogatory.

No. 2.12:  At the time of the INCIDENT did you or any other person have any physical, emotional, or mental disability or condition that may have contributed to the occurrence of the INCIDENT? If so, for each person state; (a) the name, ADDRESS, and telephone number; (b) the nature of the disability or condition; and (c) the manner in which the disability or condition contributed to the occurrence of the INCIDENT.

Plaintiff’s response states only that the incident is “an on-going endeavor” and that a description cannot be provided. (Separate Statement, 10:13-14.) This response is nonresponsive and does not answer all parts of the interrogatory. The Court grants the motion as to this interrogatory.

No. 6.1: Do you attribute any physical, mental, or emotional injuries to the INCIDENT? (If your answer is "no," do not answer interrogatories 6.2 through 6.7).

Plaintiff’s response is identical to the response to 2.12 and states that it is “on-going.” This does not respond to the call of this interrogatory. The Court grants the motion as to this interrogatory.

No. 6.3: Do you still have any complaints that you attribute to the INCIDENT? If so, for each complaint state: (a) a description; (b) whether the complaint is subsiding, remaining the same, or becoming worse; and (c) the frequency and duration.

Plaintiff’s response to this interrogatory also only states that the INCIDENT is ongoing. (Separate Statement, 11:22.) This response is nonresponsive as it does not respond to the call of the question. The Court grants the motion as to this interrogatory.

No. 6.4: Did you receive any consultation or examination (except from expert witnesses covered by Code of Civil Procedure section 2034.210-2034.310) or treatment from a HEALTH CARE PROVIDER for any injury you attribute to the INCIDENT? If so, for each HEALTH CARE PROVIDER state: (a) the name, ADDRESS, and telephone number; (b) the type of consultation, examination, or treatment provided; (c) the dates you received consultation, examination, or treatment; and (d) the charges to date.

Plaintiff’s response states: “Doctor’s office of Michael Morris 26732 Crown Valley Parkway #151 Mission Viejo CA 92691 949-347-6044. Full work up including labs, scans and physical exams. Most recent was June 2022.” (Separate Statement, 12:13-15.) This response does not respond to the portion asking for dates of treatment or costs to date. Therefore, the Court grants the motion as to this interrogatory.

No. 6.7: Has any HEALTH CARE PROVIDER advised that you may require future or additional treatment for any injuries that you attribute to the INCIDENT? If so, for each injury state: (a) the name and ADDRESS of each HEALTH CARE PROVIDER; (b) the complaints for which the treatment was advised; and (c) the nature, duration, and estimated cost of the treatment.

Plaintiff’s response states only that it is “to be determined.” (Separate Statement, 13:2.) This response is nonresponsive and must be supplemented. The Court grants the motion as to this interrogatory.

No. 7.2: Has a written estimate or evaluation been made for any item of property referred to in your answer to the preceding interrogatory? If so, for each estimate or evaluation state: (a) the name, ADDRESS, and telephone number of the PERSON who prepared it and the date prepared; (b) the name, ADDRESS, and telephone number of each PERSON who has a copy of it; and (c) the amount of damage stated.

Plaintiff’s response states: “Your client performed an inspection and evaluation of the property located at 46 Downing Street, Ladera Ranch, CA 92694 in 2020.” (Separate Statement, 12:20-21.) This response is incomplete as it does not provide information such as the name and telephone number for person(s) who have copy(s) of the estimate or evaluation. Therefore, the Court grants the motion as to this interrogatory.

No. 8.8: Will you lose income in the future as a result of the INCIDENT? If so, state: (a) the facts upon which you base this contention; (b) an estimate of the amount; (c) an estimate of how long you will be unable to work; and (d) how the claim for future income is calculated.

Plaintiff’s response is nonresponsive because Plaintiff merely states that it is “possible.” (Separate Statement, 14:8.) The Court grants the motion as to this interrogatory.

No. 9.1: Are there any other damages that you attribute to the INCIDENT? If so, for each item of damage state: (a) the nature; (b) the date it occurred; (c) the amount; and (d) the name, ADDRESS, and telephone number of each PERSON to whom an obligation was incurred.

Plaintiff’s response states: “N/A/” (Separate Statement, 14:25.) It is not clear from this statement whether Plaintiff means that he claims no other damages, or whether N/A refers to any of the subparts of this interrogatory. The Court therefore grants the motion as to this interrogatory.

No. 9.2: Do any DOCUMENTS support the existence or amount of any item of damages claimed in interrogatory 9.1? If so, describe each document and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.

Plaintiff’s response to this interrogatory is evasive as Plaintiff states that the documents have not been requested. (Separate Statement, 15:9.) This does not respond to the call of the interrogatory. The Court therefore grants the motion as to this interrogatory.

No. 11.2: In the past 10 years have you made a written claim or demand for workers' compensation benefits? If so, for each claim or demand state: (a) the date, time, and place of the INCIDENT giving rise to the claim; (b) the name, ADDRESS, and telephone number of your employer at the time of the injury; (c) the name, ADDRESS, and telephone number of the workers' compensation insurer and the claim number; (d) the period of time during which you received workers' compensation benefits; (e) a description of the injury (f) the name, ADDRESS, and telephone number of any HEALTH CARE PROVIDER who provided services; and (g) the case number at the Workers' Compensation Appeals Board.

Plaintiff did not respond to this interrogatory. Therefore, the Court grants the motion as to this interrogatory.

No. 12.1: State the name, ADDRESS, and telephone number of each individual: (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).

Plaintiff’s responses identified a few individuals but provided contact information for none of the individuals identified. (Separate Statement, 16:20-24.) The response also identifies certain groups, such as “Employees of the Law Offices of Adela Ulloa.” (Id.) Further, a statement identifying “employees” is also nonresponsive because it does not identify any specific individuals, as this interrogatory asked.

Thus, the Court grants the motion as to this interrogatory.

No. 14.1: Do YOU OR ANYONE ACTING ON YOUR BEHALF contend that any PERSON involved in the INCIDENT violated any statute, ordinance, or regulation and that the violation was a legal (proximate) cause of the INCIDENT? If so, identify the name, ADDRESS, and telephone number of each PERSON and the statute, ordinance, or regulation that was violated.

Plaintiff’s response to this interrogatory is incomplete because it only states that Plaintiff identified “multiple employees, agents and vendors” who have violated “plaintiff’s rights.” (Separate Statement,18:11-12.) This does not respond to the call of this interrogatory, which asked Plaintiff to identify specific names and specific laws violated. Thus, the Court grants the motion as to this interrogatory.

No. 17.1: Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.

Plaintiff did not respond to this interrogatory. According to Defendant’s Motion to Compel Further Responses to Request for Admission (ROA 278), Plaintiff denied at least a few of the requests for admission at issue (ROA 278, 6:7) and should have responded to form interrogatory 17.1.

Thus, the Court grants motion as to this interrogatory.

No. 50.1: For each agreement alleged in the pleadings: (a) identify each DOCUMENT that is part of the agreement and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT; (b) state each part of the agreement not in writing, the name, ADDRESS, and telephone number of each PERSON agreeing to that provision, and the date that part of the agreement was made; (c) identify all DOCUMENTS that evidence any part of the agreement not in writing and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT; (d) identify all DOCUMENTS that are part of any modification to the agreement, and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT; (e) state each modification not in writing, the date, and the name, ADDRESS and telephone number of each PERSON agreeing to the modification, and the date the modification was made; (f) identify all DOCUMENTS that evidence any modification of the agreement not in writing and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT.

Plaintiff responded with the following for each subpart: “All contracts/agreements in this matter are on file with the defendants, as provided during the escrow of the sale of the property located at 46 Downing Street Ladera Ranch CA 92694.” (Separate Statement, 19:2-4.)

This response is not complete and straightforward, as required by Code of Civil Procedure section 2030.220. No specific contracts or agreements are identified. Therefore, the Court grants the motion as to this interrogatory.

No. 50.2: Was there a breach of any agreement alleged in the pleadings? If so, for each breach describe and give the date of every act or omission that you claim is the breach of the agreement.

Plaintiff’s response is evasive and nonresponsive, because it merely refers back to Plaintiff’s Complaint and states that Defendant “breached its’ duties.” (Separate Statement, 20:8.) Plaintiff does not identify which act(s) he considers a breach of an agreement, and which agreements were allegedly breached. Therefore, the Court grants the motion as to this interrogatory.

Based on the above, Defendant’s Motion is granted as to the request for order compelling further responses to form interrogatories, numbers 2.7(d), 2.12, 6.1, 6.3, 6.4, 6.7, 7.2, 8.8, 9.1, 9.2,  11.2, 12.1, 14.1, 17.1, 50.1, 50.5

4.       Monetary Sanctions

Defendant moves for monetary sanctions against Plaintiff in the amount of $2,652.50 pursuant to Code of Civil Procedure section 2030.300. This amount compromises of 4.5 hours to prepare the motion, an anticipated 4 hours to review Plaintiff’s opposition and to appear at the hearing on the motion, at an hourly rate of $305. (Cahill Decl., ¶ 8.) Defendant also incurred a $60 filing fee.

Plaintiff’s responses, as described above, are woefully deficient. Plaintiff also failed to oppose despite potentially being served with several iterations of this motion. Therefore, the Court is inclined to grant sanctions against Plaintiff as such conduct does not serve as substantial justification which would make imposing sanctions unjust.

However, the Court reduces the amount of sanctions requested by 2.5 hours, or slightly over half, because there was no opposition filed to this motion and the amount requested includes estimated time for reviewing the opposition.

Therefore, Defendants’ request for monetary sanction sis granted in reduced amount of $1,890.

Plaintiff is to serve verified supplemental responses and pay monetary sanctions within 30 days of notice of this ruling.

Defendants are to give notice.

Motion 2: Motion to Compel Responses to Interrogatories (ROA 305)

Defendant Newrez, LLC F/K/A New Penn Financial, LLC, D/B/A Shellpoint Mortgage Servicing’s (Defendant)’s Motion for an Order Compelling Plaintiff’s Responses to Form Interrogatories, Special Interrogatories and Request for Monetary Sanctions is CONTINUED to ____ at 10:00 a.m. in Dept C33.

1.       Merits

Defendant moves to compel a further response to Form Interrogatories and Special Interrogatories, Sets One from Plaintiff Seana Pierce.

Here, Defendant served Plaintiff Seana Pierce with Form Interrogatories, Set One and Special Interrogatories, Set One on 2-28-23 by email. (Cahill Decl., ¶ 3, Exhibit 1.) There is no indication that Ms. Pierce had given consent to be served with documents electronically as is required by California Rules of Court, rule 2.251(c).

Pursuant to California Rules of Court, rule 2.251(c):

“(3)  Except when personal service is otherwise required by statute or rule, a party or other person that is required to file documents electronically in an action must also serve documents and accept service of documents electronically from all other parties or persons, unless:

(A)  The court orders otherwise, or

(B)  The action includes parties or persons that are not required to file or serve documents electronically, including self-represented parties or other self-represented persons; those parties or other persons are to be served by non-electronic methods unless they affirmatively consent to electronic service.”

Therefore, because there is no indication that Plaintiff agreed to be served by email, the Court CONTINUES Defendant’s Motion.

Defendant is ORDERED to serve Plaintiff, Seana Pierce with Form Interrogatories, Set One and Special Interrogatories, Set One by mail. Defendant is also ordered to file and serve a proof of service and an amended notice of hearing per Code.

Clerk to give notice of ruling.

Motion 3: Motion to Compel Further Responses to Request for Production (ROA 346)

Defendant Newrez, LLC F/K/A New Penn Financial, LLC, D/B/A Shellpoint Mortgage Servicing’s (Defendant)’s Motion to Compel Further Request for Production, filed 2-17-23 under ROA No. 280 is DENIED.

Defendant moves for an order compelling Plaintiff Michael Pierce to provide responses without objections to Defendant’s Requests for Production, Set One, numbers 1-42 and for an order imposing monetary sanctions in the amount of $2,652.50 against Plaintiff.

Timeliness Pursuant to Code of Civil Procedure section 2031.310, subdivision (c), a motion to compel further responses to inspection demands must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service.  (Code Civ. Proc., §§ 1013, subd. (a); 2031.310, subd. (c).)  The 45-day requirement of Code of Civil Procedure, section 2031.310, subdivision (c) “to make a motion to compel production of documents is mandatory and jurisdictional.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Here, Defense counsel Jonathan Cahill attests that the parties agreed to extend Defendant’s motion to compel deadline to 2-17-23. (Cahill Decl., ¶ 7.) The motion was filed on 2-17-23 and Plaintiff has not opposed the motion or argued that it is untimely. Therefore, the Court finds that the motion is timely.

Meet and Confer Efforts A motion to compel further responses “shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., §; 2031.310, subd. (b)(2).)  The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., § 2016.040.)

Here, Defense counsel Jonathan Cahill attests that his office sent a meet and confer letter on 9-9-22 addressing the deficiencies in Plaintiff’s responses to Request for Production, Set One and that Plaintiff failed to respond. (Cahill Decl., ¶ 6, Exhibit 3.) Based on the 9-9-22 meet and confer letter, the Court finds that Defendant has met and conferred as required by Code of Civil Procedure section 2031.310.

Good Cause A motion to compel further responses to request for production is required to set forth “specific facts good cause justifying the discovery sought by the demand.” (Code Civ. Proc. § 2031.310(b)(1).) “[A]bsent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance. Once good cause is shown, the burden shifts to the objecting party, to justify his objections.” (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

Here, neither the motion nor the separate statement in support of motion contains a discussion about good cause.  Although good cause is briefly mentioned in the motion, it only a citation to Code of Civil Procedure section 2031.310 which states that good cause is required. (Motion, 5:18-6:9.) The motion and supporting Cahill Declaration otherwise only discuss why Plaintiff’s responses are deficient, and not why there is good cause to compel responses to these requests or why these requests are generally relevant.

Because Defendant has not made a showing of good cause as required, the Court DENIES the motion based on Defendant’s failure to demonstrate good cause as required by Code of Civil Procedure section 2031.310(b)(1).

Based on the foregoing, Defendant’s motion is DENIED.

Clerk is to give notice of ruling.

Motion 4: Motion to Compel Further Responses to Request for Production (ROA 372)

Defendant Newrez, LLC F/K/A New Penn Financial, LLC, D/B/A Shellpoint Mortgage Servicing’s (Defendant)’s Motion to Compel Further Request for Production, filed 6-6-23 under ROA No. 346 is DENIED.

Defendant’s Motion Number 4 is identical to its Motion Number 3. Having denied Motion Number 3, the Court now denies Motion number 4 for the same reasons stated.

Clerk is to give notice of ruling.