Case Number: BC524202    Hearing Date: July 09, 2014    Dept: 46

Posted 7-8-2014 at 10:15 a.m.

Case Number: BC524202
EQUABLE ASCENT FINANCIAL LLC VS. SHOSHANA E SEIDMAN
Filing Date: 11/22/2013
Case Type: Collections Case-Seller Plaintiff (General Jurisdiction)

7/09/2014

Defendant and Cross-Complainant, Shoshana Seidman’s Motions (1) To compel further responses to Special Interrogatories, Set One and (2) To compel further responses to requests for production.

1. Seidman’s motion is unopposed. Motion is granted pursuant to CCP §§2030.300 and 2030.230.

1.a. Special Interrogatory No. 14 reads as follows: “Describe any procedures performed by YOU during the RELEVANT TIME PERIOD to prevent violations of the Fair Debt Collection Practices Act and/or California’s Rosenthal Fair Debt Collection Practices Act.”

1.b. The response to the interrogatory by Plaintiff/Cross-defendant states that “EAF has produced its available Procedures in response to the Request for Production, Set One.”

1.c. The response is insufficient. It lacks compliance with Section 2030.230. Additionally, as Seidman points out, “it is unclear from Equable’s response whether it has other relevant policies and procedures that are communicated to its agents and employees, but are not included in the written policies it produced.” (Separate Statement, 2:14-16). Additionally, “Equable represented that it was producing only what was ‘available,’ and not all responsive documents in its possession, custody, and/or control.” (Id., 2:17-18).

1.d. Section 2030.230 states as follows:

“If the answer to an interrogatory would necessitate the preparation
or the making of a compilation, abstract, audit, or summary of or from
the documents of the party to whom the interrogatory is directed, and
if the burden or expense of preparing or making it would be
substantially the same for the party propounding the interrogatory as
for the responding party, it is a sufficient answer to that interrogatory to
refer to this section and to specify the writings from which the answer
may be derived or ascertained. This specification shall be in sufficient
detail to permit the propounding party to locate and to identify, as readily
as the responding party can, the documents from which the answer
may be ascertained. The responding party shall then afford to the
propounding party a reasonable opportunity to examine, audit, or
inspect these documents and to make copies, compilations, abstracts,
or summaries of them.”

1.e. Plaintiff/Cross-defendant is ordered to provide a full and complete and further response to the interrogatory that is also compliant with CCP 2030.230.

1.f. Plaintiff/Cross-defendant has provided no basis for the failure to adequately respond to the interrogatory. Sanctions are awarded but in the reduced amount of $660.00 (i.e., 2 hrs. preparing mtn. + 1 hr. attending hearing @ $200/hr. + $60 filing fee).

2. Seidman’s motion to compel further responses to requests for production is DENIED in part (i.e., as to Nos. 8-11) and GRANTED in part (i.e., as to Nos. 16-18) pursuant to CCP 2031.310.

2.a. Regarding Requests 8 and 9: No further responses are warranted to the above requests, inasmuch as the opt-out procedure set forth in this court’s 4/22/14 minute order is still being completed. Further response is denied.

2.b. Regarding Requests 10 and 11: P/X-D’s verified amended 2nd supplemental responses thereto to RFP numbers 10 and 11 are adequate. The answers in part state that “EAF acted as a Passive Debt Buyer. EAF did not send any letters in its own name. All letters sent on behalf of EAF were sent by licensed collection agencies or law firms familiar with federal and state collection laws. EAF has provided the ‘DOE’ list of consumers that were sent a stipulation. This document states the number of consumers that were sent a stipulation. Additionally, EAF has provided the redacted ‘DOE’ stipulations…”) This response is found to be appropriate. Further response is denied.

2.c. No. 16 asks for “[a]ny and all DOCUMENTS including, but not limited to, COMMUNICATIONS, manuals, guidelines, policies, and internal memorandums that RELATE TO YOUR efforts to comply with the Fair Debt Collection Practices Act and/or California’s Rosenthal Fair Debt Collection Practices Act.” No. 17 asks for “[a]ny and all DOCUMENTS including, but not limited to, COMMUNICATIONS that evidence, describe, discuss, or otherwise reflect, any procedures performed by YOU to prevent violations of the Fair Debt Collection Practices Act and/or California’s Rosenthal Fair Debt Collection Practices Act.” P/X-D’s response thereto, that it “has produced its available procedures as it relates to compliance with laws and regulations,” is insufficient; as this request does not only seek procedures. Also, P/X-D is required to produce more than what is “available;” rather, it must produce all responsive documents in its possession, custody and/or control. Plaintiff/Cross-Defendant is ordered to provide a verified further response to this request for production and produce responsive documents within 20 days.

2.d. No. 18 asks for “DOCUMENTS sufficient to demonstrate YOUR net worth.” P/X-
D’s representation that it does not have documents responsive to this request is belied by its 6/19/14 balance sheet. Additionally, as D/X-Complainant Seidman points out, “[g]iven that Equable states that its ‘assets and obligations have been placed in a Delaware Liquidating Trust,’ such information and documents likely would have been required by the trustee and any creditors.” (Reply, 5:22-24). This response is inadequate – a further response is warranted. Plaintiff/Cross-Defendant is ordered to provide a verified further response to this request for production and produce responsive documents within 20 days.

2.e. Sanctions are declined as the motion was not entirely successful.

IT IS SO ORDERED:

Frederick C. Shaller, Judge