Judge: Stephen P. Pfahler, Case: 19CHCV00654, Date: 2023-08-15 Tentative Ruling

Case Number: 19CHCV00654    Hearing Date: August 15, 2023    Dept: F49

Dept. F-49

Date: 8-15-23

Case # 19CHCV00654

Trial Date: 9-25-23 c/f 8-14-23 c/f 5-1-23 c/f 1-17-23

SANCTIONS

MOVING PARTY: Defendant, Mortgage Management Consultants, Inc.

RESPONDING PARTY: Unopposed/Plaintiff, Nicole Mays, Pro Per

RELIEF REQUESTED

Motion for Issue, Evidentiary, or Terminating Sanctions

Joinder of Magnum Property Investment, LLC

SUMMARY OF ACTION

In 2010, Plaintiff acquired certain real property, 20003 Egret Place, Canyon Country. Plaintiff fell into arrears on the mortgage in 2018, thereby leading to a June 18, 2018, recorded Notice of Default and October 9, 2018 recorded Notice of Trustee Sale by Defendant Mortgage Management Consultants, Inc. The sale date was set for October 30, 2018, but was apparently not conducted.

In February to March 2019, Plaintiff began submitted a loan modification with Mortgage Management Consultants, Inc. In a March 12, 2019 letter, Mortgage Management Consultants, Inc. acknowledged receipt and acceptance of the loan modification application, and that no foreclosure was pending. [First Amend. Comp., Ex. 4.] Notwithstanding the representation, a trustee sale on the property occurred on April 2, 2019. On April 9, 2019, Plaintiff was served with a three-day notice to quit. Defendant Magnum Property Investments, Inc. purchased the property at the trustee sale.

Plaintiff alleges that her personal property remained on the premises after she vacated, which was subsequently auctioned, with the rest disposed in the trash.

Plaintiff retained defendants Martha Rodriguez, Maria Torrero, and Metu Ogike following the foreclosure. Plaintiff alleges Defendants negligently represented her in defense of the unlawful detainer proceeding and/or challenging the foreclosure.

On August 13, 2019, Plaintiff in pro per filed a verified complaint for quiet title, negligence and trespass to land. Plaintiff recorded a lis pendens on August 15, 2019. Counsel substituted into the case for Plaintiff on October 15, 2019.

On January 2, 2019, plaintiff dismissed the prior lis pendens and filed a new lis pendens. On January 29, 2020, the court granted the motion of Magnum Property Investments, LLC to expunge the lis pendens.

Meanwhile, on January 14, 2020, the parties executed a stipulation for the filing of a first amended complaint. On February 5, 2020, Plaintiff filed the unverified 12 cause of action first amended complaint for wrongful foreclosure, fraudulent misrepresentation, negligent misrepresentation, negligence (fourth cause of action), unfair business practices, promissory estoppel, cancellation of instruments, conversion, negligence (ninth cause of action), negligence (tenth cause of action), professional negligence (eleventh cause of action), and breach of fiduciary duty.

Strategic Magnum Holdings, Inc. was not a named defendant in any cause of action.

On April 23, 2020, the clerk entered defaults against Martha Rodriguez and Maria Torrero. On May 26, 2020, the clerk entered a default against Metu Ogike. The default was entered two days prior to a motion for judgment on the pleadings to the first amended complaint.

On October 1, 2020, the court sustained the demurrer in part and overruled the demurrer in part of Defendants Magnum Property Investments, LLC, Strategic Magnum Holdings, Inc., and Forethought Life Insurance Company. The court also denied the motion to strike.

On October 13 and 14, 2020, the court granted the motions to set aside the defaults as to Defendants Martha Rodriguez and Maria Torrero.

On October 28, 2020, Plaintiff filed the second amended complaint for wrongful foreclosure, fraudulent misrepresentation, negligent misrepresentation, negligence (fourth cause of action), unfair business practices, promissory estoppel, cancellation of instruments, conversion, negligence (ninth cause of action), negligence (tenth cause of action), professional negligence (eleventh cause of action), and breach of fiduciary duty.

On November 5, 2020, the court granted the motion to set aside the default against Metu Ogike. Ogike answered on November 16, 2020. Mortgage Management Consultants, Inc. answered on November 20, 2020. On November 23, 2020, Plaintiff substituted in Dovenmuehle Mortgage, Inc. for Doe 1.

On February 5, 2021, the court granted the motion to be relieved as counsel of record for Plaintiff.

On April 16, 2021, the court sustained the demurrer of Mangum Property Investments, LLC, Forethought Life Insurance Company, and Strategic Magnum Holdings, Inc. to the second and seventh causes of action for fraud and cancellation of instruments, without leave to amend. Mangum Property Investments, LLC and Strategic Magnum Holdings, Inc. answered the remaining causes of action in the second amended complaint on April 19, 2021. On June 21, 2021, the court sustained the demurrer of Dovenmuehle Mortgage, Inc. with 30 days leave to amend. On August 20, 2021, the court entered the judgment of dismissal in favor of Dovenmuehle Mortgage, Inc.

On February 23, 2022, defendants Martha Rodriguez, in pro per, and Marie Torrero, in pro per, separately answered the second amended complaint.

On January 23, 2023, the court granted the unopposed motion for judgment on the pleadings by defendant Metu Ogike. On March 17, 2023, the court entered a dismissal in favor of Metu Ogike.

RULING: Granted as to Moving Party/Denied as to Joinder.

Defendant Mortgage Management Consultants, Inc. (MMC) moves for issue, evidentiary, or terminating sanctions following the order to compel the deposition of plaintiff Nicole Mays, and the failure to appear for the ordered deposition. The motion is unopposed. The court electronic filing system shows no reply at the time of the tentative ruling publication cutoff.

In the June 5, 2023, order compelling the deposition of Mays, the court ordered the parties to meet and confer for a date. If Mays refused to cooperate, MMC was given leave to unilaterally pick a date. MMC picked a date of June 26, 2023, following the lack of any agreement from Mays. [Declarations of Brandon Klock & Christine Lyden.] Mays failed to appear for the deposition, and subsequently communicated with counsel regarding the “miscalendared” date of the deposition on June 27, 2023. [Lyden Decl., Ex. D.]

“Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective.  (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326; Department of Forestry & Fire Protection v. Howell¿(2017) 18 Cal.App.5th 154, 191 [“Terminating sanctions are to be used sparingly because of the drastic effect of their application.”].) “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.)  

A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective.  (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.)

Evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1428.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.) 

The underlying motion to compel was unopposed, and the subject motion remains unopposed. Notwithstanding the purported phone call two days after the missed deposition date, Mays demonstrates no effort continue with the prosecution of the action, especially given the impending trial date. The court therefore finds Mays effectively abandoned the action.  The motion for terminating sanctions is therefore granted as to MMC only.

The joinder in the motion lacks any support for terminating sanctions. Nothing in the joinder in any way establishes a nexus to the motion to compel, such as an intention to jointly appear or any other violated discovery order. The joinder is therefore denied.

The court grants additional monetary sanctions to compensate for the costs associated with the court reporter to take the non-appearance and the subject motion. Sanctions in the amount of $750. (Code Civ. Proc., §2025.450, subd. (h).) Payable within 30 days.

Trial remains set for September 25, 2023.

Moving party to give notice.