Judge: Virginia Keeny, Case: 23VECV01125, Date: 2025-05-12 Tentative Ruling
Case Number: 23VECV01125 Hearing Date: May 12, 2025 Dept: 45
KIMBERLY
DAVIS, et al. vs NATIONSTAR MORTGAGE LLC, et al.
plaintiffs’ motion to compel the
deposition of paige kristina huff-hemmis or in the alternative, to re-open
discovery to take ms. hemmis’ deposition
Date
of Hearing: May
12, 2025 Trial Date: June 2, 2025
Department: 45 Case
No.: 23VECV01125
Moving
Party: Plaintiffs Kimberly
Davis and Jonathan M. Davis
Responding
Party: Non Party Page Hemmis
BACKGROUND
Plaintiffs Kimberly Davis and Jonathan
M. Davis (collectively, “Plaintiffs”) allege that between the years of 2008 and
2011, Mr. Davis was an active-duty member of the United States Navy, entitling
him and Mrs. Davis to four years of forbearance periods related to making
mortgage payments on Plaintiffs home. Despite the forbearance periods, Defendants
initiated foreclosure proceedings against Plaintiffs as early as 2009 and repeatedly
over the next several years.
Plaintiffs filed a Complaint on March
14, 2023. On April 25, 2024, Plaintiff filed the operative Second Amended
Complaint (“SAC”), alleging the following causes of action: (1) Breach of Contract;
(2) Breach of the Implied Covenant of Good Faith and Fair Dealing; (3) Violations
of the Rosenthal Act; (4) Violations of the Military and Veterans Code Sections
400 et seq. and 800 et. seq.; (5) Violation of the California Consumer Credit
Reporting Agencies Act, Calif. Civ. Code § 1785.25(a); (6) Violations of the
Unfair Competition Law (Cal. Bus. Prof. Code § 17200, et seq.); (7) Violations
of Civil Code § 3273.10; and (8) Violation of Civil Code § 2924.17.
[Tentative] Ruling
Plaintiffs’
Motion to Compel the Deposition of Paige Kristina Huff-Hemmis or in the
Alternative, to Re-Open Discovery to take Ms. Hemmis’ Deposition is GRANTED.
REQUEST FOR JUDICIAL NOTICE
Plaintiffs request this court take
judicial notice of several court documents as well as a Corporation Statement
of Information filed with the Secretary of State. In reply, Plaintiffs further request the court
take judicial notice of a court document. The court GRANTS Plaintiffs’ request
for judicial notice as to the existence of these documents. (Evid. Code
§452(c), (d).)
EVIDENTIARY OBJECTIONS
In reply, Plaintiffs object to the
declaration of Ms. Hemmis, Mr. Short and Mr. Ring.
Hemmis Decl. – The court OVERRULES Objections 1 – 16
Ring Decl. – The court OVERRULES Objections 1 – 10
Short Decl. – The court
OVERRULEs Objections 1 - 3
discussion
Plaintiffs Kimberly Davis and Jonathan
Davis move this court for an order compelling the deposition testimony and
production of documents of Paige Kristina Huff-Hemmis. Alternatively, if the court
deems service on Ms. Hemmis not proper, Plaintiff moves to reopen discovery for
the limited purpose of taking her deposition, pursuant to Code of Civil
Procedure section 2024.050.[1]
A party seeking discovery from a person
who is not a party to the action may obtain discovery by oral deposition,
written deposition, or deposition subpoena for production of business
records. (CCP § 2020.010.) A deposition subpoena may command: (1)
only the attendance and testimony of the deponent, (2) only the production of
business records for copying, or (3) the attendance and testimony of the
deponent, as well as the production of business records, other documents,
electronically stored information, and tangible things. (CCP §
2020.020.) Personal service of any deposition subpoena is effective to
require a deponent who is a resident of California to: personally appear and
testify, if the subpoena so specifies; to produce any specified documents; and
to appear at a court session if the subpoena so specifies.¿ (CCP §
2020.220(c).)¿
Plaintiffs seek to depose Ms. Hemmis. The
parties seem to dispute whether Ms. Hemmis was properly served and whether Ms.
Hemmis’ deposition is even relevant to the instant action. First, Plaintiffs
argue service of the deposition was proper. On April 7, 2025, a process server
attempted to serve Ms. Hemmis at her home located on Clear Sky Way. (Goodell
Decl. ¶16; Kumar Decl.) There was no answer at the door, but a neighbor
confirmed that a female blonde resident lived there. (Kumar Decl. ¶5.) The next
day, the process server attempted to serve Ms. Hemmis again. (Kumar Decl. ¶5.) The
process server spoke to Ms. Hemmis’ husband, Jason Short, through the Ring
doorbell camera. (Kumar Decl. ¶5.) Mr. Short informed the process server that
all legal documents for Ms. Hemmis should be sent to Ms. Hemmis’ attorney, Bart
Ring, per her directions. (Kumar Decl. ¶5.) According to the process server,
Mr. Short did not limit the instruction to the Davis v. Hemmis matter in
which Mr. Ring represents Ms. Hemmis nor did he limit the instruction in any
other manner. (Kumar Decl. ¶5.) Thereafter, Plaintiffs’ counsel contacted Mr.
Ring to confirm the subpoenas should be served on Mr. Ring. (Goodell Decl.
¶24.) Plaintiffs’ counsel received no response and subsequently directed the
process server to personally serve Mr. Ring at his office pursuant to Mr.
Short’s instruction. (Goodell Decl. ¶¶17-19, Exh. 11.) When the process server
went to serve Mr. Ring on April 10, 2025, she notified Mr. Ring that Mr. Short
notified her to serve the documents to Mr. Ring’s office and Mr. Ring accepted
service and did not object to service. (Kumar Decl. ¶ 5.) When Plaintiffs’
counsel followed up with Mr. Ring regarding setting up the deposition for Ms.
Hemmis, Mr. Ring stated that he had “never been authorized to accept service of
any deposition subpoena. I have no idea if service has been effectuated
personally on anyone. If you have information regarding personal service please
provide it to me.” (Goodell Decl. ¶¶25-26, Exh. 11.) On April 16, 2025, Mr.
Ring confirmed that he was not representing Ms. Hemmis in this matter, Davis
v. Nationstar, LASC Case No. 23VECV01125, and was not authorized to accept
service on Ms. Hemmis and not representing her in this matter. (Goodell Decl.
Exh. 11.) When Plaintiffs’ counsel spoke with Ms. Hemmis, she claimed she was
not properly served and Mr. Ring does not represent her in the instant matter
but “as my family is instructed to do, they gave Bart’s information and
address.” (Goodell Decl. ¶33, Exh. 16.) Plaintiffs’
counsel notes they requested the process server re-attempt service at Ms.
Hemmis’ registered address, which was successful. (Gonzalez Decl. Exhs. 1 and
2.)
To support their contention that this
type of service was proper, Plaintiffs cite several cases. While none of the
facts are directly on point, many of those cases have similarly concluded:
service cannot be avoided by either denying service or claiming lack of
delivery when it is obvious to a reasonable person that personal service is
being attempted. (See In re Ball (1934) 2 Cal.App.2d 578; Crescendo
Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 212.) As such, Plaintiffs
argue Ms. Hemmis cannot avoid service after having instructing her family,
including her husband, to direct all process servers and others to serve legal
papers for her on Mr. Ring. As a result, Ms. Hemmis has also provided Mr. Ring
ostensible agency to accept her legal documents.
In opposition, Ms. Hemmis argues her
husband never told the process server to “serve” Mr. Ring with any legal
documents, especially not “all legal documents”. Mr. Short told the process
server he could give the name of a lawyer and could drop the documents to them.
(Short Decl. ¶2.)
As for the relevance of Ms. Hemmis’
testimony, Plaintiffs argue Defendants have listed her as a witness in their
verified discovery responses; Ms. Hemmis’ alleged unauthorized occupation of
Plaintiff's home also interfered with their ability to sell or refinance their
home during this time-period; and moreover, Ms. Hemmis herself has never
claimed that Plaintiff is not entitled to take her deposition.
In opposition, Ms. Hemmis argues that
the instant deposition is to skirt around the stay in the Davis v. Hemmis
action. Ms. Hemmis maintains that she has responded to all discovery in the Davis
v. Hemmis action and has had no communications with Nationstar or U.S.
Bank. Therefore, this deposition would violate the stay.
The court disagrees. “[A]ny party may
obtain discovery regarding any matter, not privileged, that is relevant to the
subject matter involved in the pending action ... if the matter either is
itself admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence.” (CCP §2017.010.) As noted by Plaintiffs,
they are entitled to question Ms. Hemmis regarding Defendants’ attempts to sell
the Plaintiffs' home to Ms. Hemmis at trial. Defendants themselves have listed
Ms. Hemmis as a witness for trial. Therefore, her deposition testimony may be
relevant. Moreover, the deposition testimony would not violate the stay in the Davis
v. Hemmis proceedings.
Lastly, Ms. Hemmis asserts she is in ill
health and cannot attend any deposition or legal proceedings for at least the
next 60 days. In reply, Plaintiffs agree to take Ms. Hemmis’ deposition by
Zoom. Plaintiffs’ counsel believes the deposition should be no more than 4 -5
hours and Plaintiff would be willing to break up the deposition into 1 -2 hour
sessions to accommodate Ms. Hemmis.
The court orders the deposition to be
taken within 15 days. In addition, the deposition is to be taken via Zoom and
in sessions.