Case Name: Merritt, et al. v. Mozilo, et al.

Case No.: 1-09-CV-159993

I. Defendants’ Request for Sanctions

The request by defendants Countrywide Financial Corporation, Countrywide Home Loans, Inc., Bank of America, N.A., Angelo Mozilo, David Sambol, Kenneth Lewis and Michael Colyer for evidentiary, issue, contempt and terminating sanctions against Plaintiffs David Merritt and Salma Merritt was continued from April 29, 2014, and Defendants were given leave to provide supplemental information concerning Plaintiffs’ late attempt at compliance. Defendants timely filed a memorandum and declaration on May 19, 2014. Without leave of court, Plaintiffs filed a Response on May 28, 2014. The Court has considered all filings.

Defendants’ request is granted as follows. Plaintiffs may not offer into evidence at trial any document in their possession, custody or control, which is responsive to any document request propounded by Defendants and which Plaintiffs have not produced as of April 29, 2014. Plaintiffs may not offer any argument that suggests the existence of documents excluded by this order. Defendants may argue any inference arising from Plaintiffs’ failure to produce responsive documents.

II. Plaintiffs’ Motion to Compel Further Responses to Third Request for Production of Documents and for Sanctions

A motion to compel further responses must set forth specific facts show good cause justifying the discovery sought. Code of Civil Procedure section 2013.310 (b)(1).

A showing of good cause requires evidence, not just argument:

“In law and motion practice, factual evidence is supplied to the court by way of declarations. [The moving party] provided argument but no evidence at all to permit the court to conclude the material sought was “admissible in evidence or appear [ed] reasonably calculated to lead to the discovery of admissible evidence.” The only justification for the request is contained in [the moving party]’s “Statement Pursuant to Rule 335(a)” and in [an opposition points and authorities]…. Neither document is verified, and thus they do not constitute evidence.” Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224; Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435-1439.

Plaintiffs purport to show good cause by directing the Court to read the Fourth Amended Complaint. (Memorandum in Support, at 11:19-23.) The allegations are not evidence. The unauthenticated attachments to the memorandum are not evidence. Plaintiffs’ good cause argument on this motion makes no reference to evidence. (Id., at 11:18-12:20.) The Declaration of David Merritt in support of the motion (“Merritt Declaration”) does not set forth facts showing good cause. Plaintiffs have failed to establish good cause as required by section 2031.

Defendants present record evidence and argument that the demands in question on this motion duplicate previous demands by Plaintiffs as to which the Court has already denied motions to compel. Plaintiffs do not dispute this, but instead respond to this evidence with an assertion, essentially, that the Court was wrong before. (Merritt Declaration, at 2:9-11.) Plaintiffs are not entitled to propound and enforce duplicative requests. Professional Career Colleges v. Superior Court (1989) 207 Cal.App.3d 490. Moreover, Defendants’ overbreadth objections are well taken, and the requests relating to other borrowers violate their privacy rights without direct relevance.

The motion is denied. Plaintiffs are not entitled to sanctions.

For the reasons stated above, the Court finds that the motion was filed without substantial justification. Accordingly, Defendants’ request for monetary sanctions is granted. On or before June 16, 2014, Plaintiffs are ordered to pay Defendants the sum of $3,500 as and for reasonable attorney fees incurred in opposing this motion.

III. Case Status

It has come to the Court’s attention that there is currently no status date set in this case.
The Court has reviewed the memoranda filed by the parties concerning whether and to what extent this case, filed on December 22, 2009, has been stayed. A Trial Setting Conference is set for August 19, 2014, at 11 a.m. in Department 2. The parties are ordered to meet and confer as to a trial date no later than December 8, 2014, that will accommodate the schedules of all persons involved in the trial.