Order After Hearing POSCal. Super. - 6th Dist.August 13, 2020SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA DEPARTMENT 20 161 North First Street, San lose, CA 95113 408.882.2320 - 408.882.2296 (fax) smanoukian@scscourt.org http://www.scscourt.org CASE NO.: 20CV369368 Rabindra Chakraborty, Ruma Chakraborty v. Mortgage Lender Services, Inc. DATE: 21 January 2021 TIME: 9:00 am LINE NUMBER: 4, 5, 6 This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808.6855 and the opposing party no later than 4:00 PM on 20 January 2021. Please specify the issue to be contested when calling the Court and Counsel. Orders on Motions of Defendant Milestone Financial, LLC to Compel Plaintiff Ruma Chakraborty to Respond to Special Interrogatories, Request forAdmissions of Documents, and to Deem Requests forAdmissions to Be Admitted; Request for Monetary Sanctions. l. Statement of Facts. Plaintiffs filed this complaint on 13 August 2020.1 Plaintiffs allege that they are the rightful owners of real property known as 1298 Pumpkin Terrace, Sunnyvale. [t was their personal residence. They claim that a foreclosure sale of the property for which a trustee’s deed upon s_ale was issued to a third-party was wrongful and asserted several causes of action for the violations of Civil Code. §§ 2924, 2924.9, Business & Professions Code, § 17200, wrongful foreclosure, negligence and cancellation of written instruments. On 9 September 2020 moving pany Milestone sewed request for admissions, request for production of documents. and special interrogatories. Responses were due on or before 12 October 2020 but none were forthcoming. ~ On 25 October 2020, Milestone sent an email confirming that all objections were waived and requested responses t0 the discovery requests. Counsel for plaintiffs responded that the clients were not cooperating and that he was going to file a motion to withdraw. ll. Motion to Compel Responses to Discovery Requests. On 19 January 2021 this Coun granted similar motions brought by Milestone against Praintiff Rabindra Chakraborty. Milestone has now filed motions to compel plaintiff Ruma Ckarabofiy to provide responses to the foregoing discovery and seeks monetary sanctions. 1 Th'is Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600-68620). The California Rules of Court state that the goal of each tria! court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months‘ (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C). 21 January 2021 Orders on Motions 0f Defendant Milestone Financial, LLC to Page 1 of 6 Compel Plaintiffs to Respond to Special Interrogatories, Request for Admissions of Documents, and to Deem Requests for Admissions to Be Admitted; Request for Monetary Sanctions. lll. Analysis. A. Introduction. The purpose of the civil discovery act was to do away with the sporting theory 0f fitigation. to take the game element out of trial preparation, and eliminate surprise at trial by enabling the parties to obtain the evidence necessary to evaluate and solve their disputes beforehand. Each of these purposes was generally expressed in the Case of Hickman v. Taylor, 329 U.S., which interpreted the federal rules of discovery in 1947, and of which the California Legislature is deemed to have been cognizant when adopting those rules. (Greyhound Corp. v. Superior Court (1961) 56 Ca|.2d 355, 376.)? B. lnterrogatories. 1. Service of lnterrogatories. The rules and procedures governing interrogatories is set foflh in Code of Civil Procedure, § 2030.010 et seq. Interrogatories may be served without leave of coun any time during the action, with a few exceptions which include: (1) during the first 10 days after service of summons or defendant’s appearance in the action (whichever is first); and (2) cutoff on discovery before trial (Code of Civil Procedure, § 203020).) Interrogatories may be sent to any other pany to the action (Code of Civil Procedure, § 2030.01 0(a).) The party to whom Interrogatories are directed may promptly move for a protective order (Code of Civil Procedure. § 2030.090(a).) 2. Responses To Interrogatories. Unless excused by protective order, the party to whom the interrogatories are directed is under a duty to respond to each question separately, under oath, and within the time iimits. (Code of Civil Procedure, § 2030.210(a).) The response may be: (1) an answer; (2) an objection; or (3) an election to allow inspection and copying of records. 0d.) A response that indicates an inability to respond is insufficient. If the responding party lacks personal knowledge sufficient to respond, he or she may state such only after making a reasonable good faith effon t0 obtain the information through other persons or organizations (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007') 148 Cal App 4‘11 390, 406).) The response to the interrogatories is due within 30 days from the date the interrogatories were sewed. (Code of Civil Procedure, §2030.260(a).) The court may shorten or extend time for response by motion from one of the parties Id. Similarly, the parties may stipulate to an extension 0f time for responding, which must be in writing. (Code of Civil Procedure, § 2030.270). 3. Waiver of Privilege if not Timely. Failing to respond within the time limit descn‘bed above waives most objections to the interrogatories, which includes claims of privilege and work product. (Code of Civil Procedure, § § 2030.290(a); (see Leach v. Superior Court (Markum) (1980) 111 Ca! App 3d 902, 905-906).) The delay in responding atso waives the option t0 produce writings in under Code of Civil Procedure, § 2030.230 in lieu of the information contained within them (Code of Civil Procedure, § 2030.290(a).) 4. Motion to Compel Responseleurther Responses. [f a party fails to respond at all or responds with objections or incomplete answers, the propounding party‘s remedy is t0 seek a coud order compelling answers or further answers (Code of Civil Procedure, § 2030290).) 2 Absent contrary precedent under state law, California courts haVe found federal decisions “persuasive” in interpreting similar provisions of the California Act. (SeelGreyhound Com. v. Superior Court ofMerced County (1961) 56 Cal.2d 355. 401; Nagfe v. Superior Court (1994) 28 Cal.AppAm 1465, 1468; Vasquez v. Catifomia School of CulinaryArts, Inc. (2014) 230 Cal.AppAm 35. 42-43; Weil & Brown, Civil Procedure Before Tn'a! (The Rutter Group 2019) § 8:19, p. 8A-10.) 21 January 2021 Orders 0n Motions 0f Defendant Milestone Financial, LLC to Page 2 of 6 Compel Plaintiffs to Respond to Special Interrogatories, Request for Admissions 0f Documents, and to Deem Requests for Admissions to Be Admitted; Request for Monetary Sanctions. The burden to enforce discovery is 0n the propounding party. otherwise no penalty attaches to the responding failures inadequate responses. (Saxena v. Goffney(2008) 159 Cal.AppA‘h 31 6. 334).) The motion of Milestone to compel responses to lhe special interrogatories is GRANTED. Plaintiffs are to provide code compliant responses within 30 days of the date of the filing and service of this Order. C. Requests for Admissions 1. Service of Requests for Admissions. The rules and procedures governing requests for admissions is set forth in Code of Civil Procedure, § 2033.01 0 et seq. The primary purpose of RFAs is t0 set at rest triabfe issues so that they will not have to be tried, and the trial may be expedited. (Orange County Water District. v. The Arnold Eng. Co. (201 8) 31 Cal App.5"‘ 96, 115). RFAs may be served at any time dun‘ng the lawsuit with a few exceptions including: (1) the first 10 days after service of summons or defendant's appearance in the action (whichever is first); and (2) cutoff on discovery before trial (Code of Civil Procedure, § 2033.20). RFAs may be served on any other party to the action (Code of Civil Procedure, 2033.010). Instead of responding to the RFAs, the party whom was served may promptly move for a protective order (Code of Civi! Procedure, § 2033.080). 2. Responses to Requests for Admissions. The time limit for responding to Requests for Admissions ("RFAs") is 30 days from the date the RFAs were sewed. (Code of Civil Procedure, § 2033.250). The Court has the power to extend 0r shorten the time allowed for response Id. Additionally, the parties may agree to extend the time allowed to respond to some or all of the RFAs, but it must be confirmed in writing. (Code of Civil Procedure, § 2033.260.) The response to the RFAS must contain either an answer or an objection to the panicular RFA'(Code of Civil Procedure. § 2033.210(b).) If there is n0 objection to a particular RFA, the response must be one 0f the following: (1) an admission; (2) a denial; or (3) a statement claiming an inability t0 admit 0r deny. (Code of Civil Procedure, § 2033.220(b).) 3. Waiver of Privilege if not Timely. Failure to timely respond to RFAs results in a waiver of all objections to the requests, including claims of privilege or work product protection (Code of Civil Procedure, § 2033.280(a).) _The court may relieve a party who fails to file a timely response before ordering the matters to be "deemed admitted” if the court finds: (1) the party failed to serve timely responses due to mistake, inadvedence or excusable neglect; and (2) the patty has subsequently served a response with i5 substantially compliant. (Code of Civil Procedure, § 2033.280(a).) Relief may even be granted by the court if no responses were served. (Wilcox v. Binwhistie (1999) 21 Cal.App.4”‘ 973. 983). Once the court orders the RFAs “deemed admitted“ the party in default may file a motion to withdraw the deemed admission (Code of Civil Procedure, § 2033.300). 4. Motion to Deem RFAs to Be Admitted. Code of Civil Procedure, § 2033.280(a) provides that if a party to whom requests for admissions have been directed fails to serve a timely response, that party thereby waives any objection to the requests, including one based on privilege or on the protection for work product under Code of Civil Procedure, § 2018.010 et seq. Code of Civil Procedure, § 203328003) provides that the requesting party may move for an order that the truth of any facts specified in the requests be deemed admitted. The Coun shall make this order unless it finds that the party to whom the requests for admission have been direct and has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with Code of Civil Procedure. §§ Sections 2033.210, 2033.220, and 2033.230. (Code of Civil Procedure, § 2033.280(c).) Failing to timely respond to RFAs does not result in automatic admissions. The propounder of the RFAs must move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code of Civil Procedure, § 2033.280(b).) There is no time limit on a motion to have matters 21 January 2021 Orders on Motions 0f Defendant Milestone Financial, LLC to Page 3 0f 6 Compel Plaintiffs to Respond to Special Interrogatories, Request for Admissions of Documents, and to Deem Requests for Admissions to Be Admitted; Request for Monetary Sanctions. deemed admitted. however if the motion is delayed too tong, the responding party may object or seek a protective order. (Brigante v. Huang (1993) 20 Cal.AppAm 1569, 1584). There are n0 specific timing restrictions in Code of Civil Procedure, § 2033.280(b) for the bringing 0f a motion deeming matters admitted, unlike the 45-day limitation for compelling further responses under Code of Civil Procedure, § 2033.290. Generally a party must make a reasonable and good faith attempt at an informal resolution of any discovery dispute before bringing a motion to compel responses. However, this provision does not apply if the propounding party has received no responses whatsoever to the discovery requests. (Leach v. Superior Court of Shasta County(1980) 111 Ca1.App.3d 902, 905-906.) 5. Effect of Serving Responses. The Court shall grant the motion unless it finds that the party to whom the requests for admissions have been directed has sewed, before the hearing on the motion, a proposed response In substantial compliance with Code of Civil Procedure, § 2033.220. (See Code of Civil Procedure, § 2033.280(o); St. Mary v. Superior Court (Schelienberger) (2014) 223 Cal.App.4th 762, 778; see Weil & Brown, California Practice Guide, Civil Procedure before Triaf, § 821374 (2019).) The request of Milestone to deem the requests for admissions t0 be admitted is GRANTED. D. Requests for Production. 1. Service of Requests for Productionllnspection. The rules and procedures governing requests for production (also referred to as inspection demands) are governed by Code of Civil Procedure, § 2031 .010 et. seq. A demand may be served 0n any other party t0 the action (Code of Civil Procedure, § 2031.010). A demand may be used to obtain inspection, copying, testing or sampling of: (1) documents, (2) tangible things, (3) land, and (4) electronicalty stored information in the possession, custody or control 0f another party. (Id) These demands are limited t0 matters within the permissible scope 0f discovery. (ld.) A demand may be served at any time during the lawsuit with a few exceptions including: (1) the first 10 days after service 0f summons 0r defendant’s appearance In the action (whichever is first); and (2) cutoff on discovery before trial (Code of Civil Procedure, § 2031 .020). The party seeking discovery serves a demand for inspection 0n the party believed to be in possession, custody or control of the documents or property to be inspected (Code of Civil Procedure. § 2031 040).) Uniike interrogatories and RFAs, there is no limit on the number ofdemands that can be served. Instead 0f responding to the demand, the party t0 whom it is directed, 0r a third party whose privacy would be infringed by disclosure of the documents, may seek a protective order (Code of Civil Procedure, § 2031 .060). 2. Responses to Requests for Productionllnspection. The party to whom a demand is sewed must respond within 30 days after service, unless excused by protective order. (Code of Civil Procedure, § 2031 .260.) The court has the power t0 extend or shorten the time allowed for response. Id. Additionalty, the parties may agree t0 extend the time allowed to respond, but it must be confirmed I'n writing. (Code of Cfvfl Procedure, § 2031 .270.) 3. Waiver-of Privilege lf Responses Are Not Timely. Failure to timely respond to a demand results In a waiver of all objections to the requests, including claims of privilege 0r work product protection (Code of Civil Procedure, § 2031 .300(a).) The court has the authority to grant relief from such waiver if (1) the party belatedly served a response that is in substantial compliance; and (2) the party filed a noticed motion supported by declaration showing that the delay resulted from mistake, inadvenence or excusable neglect. (Code of Civil Procedure, § 2031 300(3).) 21 January 2021 Orders on Motions of Defendant Milestone Financial, LLC to Page 4 of 6 Compel Plaintiffs to Respond to Special Interrogatories, Request for Admissions 0f Documents, and to Deem Requests for Admissions to Be Admitted; Request for Monetary Sanctions. 4. Motion to Compel Responseleurther Responses. A motion to compel may be made if: (1) there is no response at all; (2) the responses have been made but they are not satisfactory lo the demanding party; or (3) where an agreement to compty has been, but compliance is not forthcoming. (COP § 2031 .300-2031 .320). 1n ruling 0n a motion to compel, the court may require the party who objects to a request. on the ground of privilege, to prepare and serve a privilege log. (Best Products, Inc. v. Superior Court (Granatefli Motorsports, Inc.) (2004) 119 Cal.AppAm 1181, 1188-1 189).) The motion 0f Milestone to compel responses to the request for production is GRANTED. Plaintiffs are to provide code compliant responses within 30 days of the date 0f the filing and service 0f this Order. E. Waiver of Priviiege if Responses Are Not Timely. Failing to respond within the time limit described above waives most objections to the interrogatories, which includes claims 0f privilege and work product (Code of Civil Procedure, § 2030.290(a); (see Leach v. Superior Court (Markum) (1980) 111 Cal.App.3d 902, 905-906).) The delay in responding also waives the option to produce writings in under Code of Civil Procedure, § 2030.230 in lieu 0f the information contained within them (Code of Civil Procedure, § 2030.290(a).) There are some case law exceptions to waiver. One case holds that a party may obtain a protective order limiting discovery of objectionable information even after they have waived their right to object. (Starfish v. Superior Court (Southern Calif. Gas Co.) (1999) 71 Cal.App.4"‘ 1130,1144). Further, courts seem reluctant to find waiver where privacy rights are at issue. (Heda v. Superior Court (Davis) (1 990) 225 Cal.App.3d 525, 530). F. Sanctions. Code of Civil Procedure. § 2023.040 states: “A request for a sanction shall. in the notice of motion, Identify every person, party, and attorney against whom the sanction is sought, and specify the type 0f sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought." . It is mandatory that a monetary sanction be imposed on the party, or attorney, or both, whose failure to serve a timely response necessitated the filing of the deemed-admitted motion unless the court finds ”substantial. justification” for that pany's position or other circumstances making the sanction “unjust.“ (Code of Civil Procedure, §§ 2030.290(c); 2031 .300(c); 2033.280(c).) Sanctions can be avoided by serving responses before the motion is filed, which eliminates the ground for the motion. (St. Mary v. Superior Court (Schellenberg) (2014) 223 Cal.App.4"‘ 762, 784). The costs and expenses award is limited to reascgnable expenses incurred which includes reasonable attorney's fees in proving matters unreasonably denied. If the motion t0 compel responses to proper discovery requests is granted, the court shall order the party to whom the discovery was directed to pay the propounding party's reasonable expenses, including attorney fees, in enforcing discovery “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition 0f the sanction unjust." (Code of Civil Procedure, §§ 2030.300(d); 2031 300(0); 2023.010(d); 2023.030(a).) Further, Code of Civil Procedure, § 2023.050, effective January 1, 2020, imposes mandatory sanctions 0n motions involving request for production of documents. Sanctions under this provision are mandatory should the court find, in relevant part, that the party, person, or éttorney did not respond in good faith to a request for production of documents. The request of Milestone Financial LLC for monetary sanctions is code compliant and GRANTED. Plaintiffs shall jointly pay the sum 0f $3,060.00 to counsel for Milestone Financial LLC within 3O days 0f the date 0f the filing of service 0f this Order. 21 January 2021 Orders on Motions of Defendant Milestone Financial, LLC to Page 5 of 6 Compel Plaintiffs to Respond t0 Special Interrogatories, Request for Admissions of Documents, and to Deem Requests for Admissions t0 Be Admitted; Request for Monetary Sanctions. IV. Tentative Ruling. The tentative ruling in this matter was duly posted. There were no challenges t0 the posted tentative ruling. Ms. Lau appeared on behalf of defendant Milestone Financial, LLC dba MERS Fund I only as a precautionary matter. Mr. Chakrabony appeared. Both parties appeared via Zoom. Mr. Chakraborty stated he was injured in a motor vehicle accident and unable to attend to this matter. The - Coun advised Mr. Chakraborty of the rulings of 19 January 2021 on the similar motions filed by Ms. Lau. The Court advised that the tentative ruling would be the final order. V. Conclusion and Order. The motion of Milestone Financial LLC to compet plaintiff Ruma Chakrabody to respond to specia1 interrogatories and request for production of documents is GRANTED. Plaintiff is to provide code compliant responses within 3O days of the date of the filing and service of this Order. The motion of Milestone Financial LLC to deem requests for admissions served upon plaintiff Ruma Chakraborty t0 be admitted is GRANTED. The request of Milestone Financial LLC for monetary sanctions is code compliant and GRANTED. Plaintiff Ruma Chakrabony shall jointly pay along with plaintiff Rabindra Chakraborty the sum of $3,060.00 to counsel for Milestone Financial LLC within 30 days of the date of the fiiing of service of this Order. 11 January 2021 WWW“? “kw“- I-u-u un-n .- DATED: HON. SOCRATES PETER MANOUKIAN Iudge of the Superior Court County ofSanta Clara 21 January 2021 Orders on Motions of Defendant Milestone Financial, LLC to Page 6 of 6 Compel Plaintiffs to Respond to Special Interrogatories, Request for Admissions of Documents, and t0 Deem Requests for Admissions to Be Admitted; Request for Monetary Sanctions. COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SANJOSE. CALIFORNIA 95113 SUPERIOR COURT OF CALIFORNIA g: g L E W CIVIL DIVISION unty o! Santa Clara B DEPUTY RE: Rabindra Chakraborty et al vs MORTGAGE LENDER SERVICERS, INC et a] Case Number: 200V369368 PROOF OF SERVICE ORDER ON MOTION 0F DEFENDANT MILESTONE FINANCIAL. LLC TO COMPELPLAINTIFF CHAKRABORTY TO RESPOND T0 SPECIAL INTERROGATORIES, REQUEST FOR ADMISSIONS OF DOCUMENTS, AND T0 DEEN REQUESTS FOR ADMISSIONS T0 BE ADMITTED, REQUEST FOR MONETARY SANCTIONS was delivered to the parties listed below the above entitled case as set forth In the sworn declaration below. 1f you‘ a party represented by you. or a witness to be called on behalf of that party need an accommodation under the American with Disabllitles Act. please contact the Court Administrator’s office at (408) 882-2700. or use the Court's TDD line (408) 882-2690 0r the VolcefTDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope. addressed to each person whose name Is shown below. and by depositing the envelope with postage fu1ly prepaid, In the United States Mail at San Jose. CA on January 26. 2021. CLERK OF THE COURT. by Donna O'Hara. Deputy. - cc: Anthony Paul Cara 2973 Harbor Blvd Ste 594 COSTA MESA CA 92626 Harris Lindley Cohen 5305 Andasol Ave Encino CA 91316-2504 Jonathan Seigel 155 N Redwood Dr Ste 100 San Rafael CA 94903 cw-9027 REV 12/oal16 PROOF OF SERVICE