Case Number: BC558325 Hearing Date: May 05, 2016 Dept: 78

Superior Court of California
County of Los Angeles
Department 78

RONALD HILLS,
Plaintiff,
v.
ALAW, et al.
Defendants. Case No.: BC558325
Hearing Date: May 5, 2016
[TENTATIVE] RULING RE:
Defendant Ivan Moore’s Motion to Compel Deposition of Keith Rouster.

Defendant Ivan Moore’s Motion to Compel Deposition of Keith Rouster is DENIED.

FACTUAL BACKGROUND

This is a wrongful foreclosure case. Plaintiff Ronald Hills (“Hills”) alleges in his First Amended Complaint (“FAC”) that he, in his position as Secretary of Rene Moore Music Inc., and Radio Multi-Media, Inc., transferred the subject property located at 1236–38 South Redondo Blvd, Los Angeles, CA 90019 (the “subject property”) from Ivan Rene Moore and Ima Moore to defendant Kimberly Martin-Bragg (“Martin-Bregg”) to hold in trust for the benefit of Hill and for the benefit of defendant Ivan Rene Moore (“Moore”) and his corporations. (FAC ¶ 39, 40.)

Hill then alleges that Martin-Bragg transferred the property to defendant Keith A. Rouster (“Rouster”), similarly to hold in trust for Hill and Moore and his corporations. (FAC ¶ 42.) The FAC then alleges that a quitclaim deed was executed transferring the subject property to Hills, Moore, and the corporations. (FAC ¶ 43.) In May 2005, the subject property was then transferred again to Rouster without any consideration. (FAC ¶ 44.) The FAC alleges that Rouster now claims that he purchased the subject property from Martin-Bragg. (FAC at p. 13, ¶ 28.)

The FAC alleges that defendants Rouster, Martin-Bragg, and bank defendants JP Morgan Chase Bank, Chase Home Finance LLC, Chase Manhattan Mortgage Corporation, and California Reconveyance Company caused the publication of a Notice of Trustee Sale of the subject property in order to permanently deprive Hills and Moore of the beneficial interest and enjoyment of the property. (FAC at p. 16, ¶ 36.)
On August 20, 2014, Defendant ALAW is alleged to have been unlawfully substituted as trustee under Hills’ property interest in the subject property by JP Morgan Chase Bank, Lawrence Howard and Long Beach Mortgage. (FAC ¶ 55.) On August 29, 2014, ALAW allegedly unlawfully published a Notice of Trustee’s Sale of the subject property, setting a sale date of September 25, 2014. (FAC ¶ 60.) This Notice of Trustee’s sale is allegedly invalid because ALAW is not the duly appointed trustee under the note that secured the deed of trust on the subject property. (Id.)

The complaint alleges that defendant ALAW claims to be the beneficiary and debt collector under the deed of trust, and that ALAW is not the duly appointed trustee of the subject property. (FAC ¶ 6.) ALAW is alleged to have participated in the “fraudulent, wrongful and unlawful execution of the Assignment of Deed of Trust, Substitution of Trustee, Notice of Default And Election To Sell Under Deed of Trust And The Notice of Trustee’s Sale” of the subject property, which was scheduled for September 25, 2014. (FAC ¶ 7.)

PROCEDURAL HISTORY

Hills filed his FAC on June 23, 2015, which alleges eleven causes of action:
1. VIOLATION OF CALIFORNIA HOMEOWNER BILL OF RIGHTS (HBOR) (against all defendants except Ivan Rene Moore)
2. VIOLATION OF CALIFORNIA CIVIL CODE § 2923.5 (against all defendants except Ivan Rene Moore)
3. LACK OF STANDING TO FORECLOSE (against all defendants except Ivan Rene Moore)
4. INJUNCTIVE RELIEF (against all defendants except Ivan Rene Moore)
5. CONSTRUCTIVE FRAUD (against all defendants except Ivan Rene Moore)
6. SLANDER OF TITLE (against all defendants except Ivan Rene Moore)
7. QUIET TITLE (against all defendants except Ivan Rene Moore)
8. DECLARATORY RELIEF (against all defendants except Ivan Rene Moore)
9. VIOLATION OF CALIFORNIA B&P CODE § 17200 ET SEQ (against all defendants except Ivan Rene Moore)
10. NEGLIGENCE (against all defendants)
11. FRAUD IN THE INDUCEMENT (against Rouster)

On December 21, 2015, this court sustained JP Morgan’s demurrer to the FAC without leave to amend as to all causes of action except the seventh cause of action for quiet title.

On April 19, 2016, this court set an OSC re: Status of Defendant Ivan Moore. The issue of whether Ivan Moore is a proper defendant in this case was previously raised by another party, and if Moore were more properly a plaintiff in this matter, he would have to comply with Code Civ. Proc. section 391.7 subdivision (b) requiring advanced approval from the Presiding Judge before becoming a plaintiff.
The court invited any party to file a brief of up to ten pages. Moore and Hills both filed short briefs on April 28, 2016.

DISCUSSION

I. MOTION TO COMPEL

“If, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).) A Motion to Compel Attendance must be accompanied by a meet and confer declaration or, “when the deponent fails to attend the deposition . . . a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.250, subd. (b)(2).)

On March 18, 2016, Moore made an ex parte application for an order shortening time for a hearing on a Motion to Compel the deposition of Rouster. The Motion to Compel itself was attached as an exhibit to the ex parte application. On March 21, 2016, this court denied the ex parte application but set the hearing on the Motion to Compel Deposition for April 29, 2016. This hearing was later continued until May 5, 2016.

At a hearing in this matter on April 19, 2016, this court stated that the Proof of Service for the Motion to Compel was defective because it was not signed, did not provide the names of the individuals who were served or the addresses at which they were served, and appeared to be signed by Moore himself in contravention of Code Civ. Proc. section 1013a, subdivision (1), requiring a person making service be “not a party to the causes . . . .” The court therefore stated that the motion would be taken off calendar until Moore provided the court with a compliance proof of service of the Motion to Compel.
On April 25, 2016, Moore filed an additional proof of service. This Proof of Service includes a declaration by Brenda Fuller that provides that on March 21, 2016, she went to the post office with Moore, and while Moore was on a phone call, handled the postal transaction whereby she served the ex-parte application, a Motion to compel documents from Chase bank and request for admissions from Chase Bank, as well as a notice for deposition of a PMK from Chase Bank. (Fuller Decl. ¶ 9.)

As an initial matter, the court finds that this additional proof of service is not sufficient. Moore provided only a proof of service of his ex parte application that contained the Motion to Compel, but not a proof of service for the Motion to Compel itself. Absent that, there is no proof that the Motion to Compel was ever served on Rouster.
Additionally, the court is concerned that the Fuller declaration is inconsistent with the proof of service signed by Moore attached to the ex parte application. Moore attached a proof of service of the ex parte application on March 18, 2016, signed under penalty of perjury, that he himself mailed the ex parte application. This is inconsistent with the declaration signed under penalty of perjury by Fuller than she was the person who in fact served the ex parte application by mail.

Rouster filed an Opposition to the Motion to Compel on April 29, 2016, in which he states that he never received any notices of depositions, and the first time he heard about the depositions was when he received a package on March 24, 2016 that contained a Notice of Motion and Motion to Compel Depositions. (Rouster Decl. ¶¶ 2–6.) The court notes that the proofs of service of the Notice of Deposition attached to the Motion to Compel is signed by Stan Bethel and properly contains addresses. (See Ex Parte Application Ex. A.) However, in light of the above inconsistencies, the court finds that there is reason to believe that Rouster was, in fact, not actually served with the Notice of Deposition. Additionally, Stan Bethel was the process server who signed the Proofs of Service for discovery requests at issue in plaintiff Hills’ Motion to Compel responses from JP Morgan Chase heard on April 19, 2016, in which the court found that despite containing proper proofs of service, JP Morgan Chase had rebutted the presumption of good service due to a host of inconsistencies and evidence that service was improper. Therefore, the court also finds that service of the Notice of Deposition on Rouster was improper based on Rouster’s declaration that he never received it.

Moore filed an Opposition to Rouster’s Opposition on the basis that it is untimely. The court finds that because of the above improper service, Rouster could not have timely opposed this motion due to lack of knowledge.

Because the Motion to Compel was not properly served on Rouster, nor was the Notice of Deposition that is at issue in the Motion, the Motion to Compel is DENIED. If Moore wants to depose Rouster, he must properly serve a new Notice of Deposition. The court notes that if Moore wishes to file adequate proofs of service, he must comply with all statutory requirements, and it would be prudent to attached USPS receipts and tracking numbers.

Defendant Rouster to give notice.

Dated: May 5, 2016

__________________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court