Case Number: KC067103 Hearing Date: January 26, 2015 Dept: J
Re: Amada Guerrero v. Bank of America, N.A., et al. (KC067103)

MOTION TO COMPEL FURTHER PRODUCTION OF DOCUEMNTS

Moving Party: Defendant Seterus, Inc.

Respondent: Plaintiff Amada Guerrero

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c); Reply OK

Plaintiff commenced this action on 8/29/14. The First Amended Complaint filed on 1/14/15 asserts causes of action for:

1. Violation of Homeowner Bill of Rights – CC § 2923.7
2. Negligent Misrepresentation
3. Violation of B&P C § 17200
4. Breach of the Implied Covenant of Good Faith and Fair Dealing

The Case Management Conference is set for 1/27/15.

Defendant Seterus, Inc. (“Defendant”) moves for an order compelling Plaintiff Amada Guerrero to serve further verified responses, without objections, to Defendant’s first set of Request for Production of Documents along with the responsive documents. Defendant also moves for an order imposing monetary sanctions against Plaintiff and/or her attorneys of record in the amount of $1,050.00.

MOTION TO COMPEL FURTHER RESPONSES:

CCP § 2031.310 allows a party to file a motion to compel further responses to document requests if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP § 2031.310(b).)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP § 2031.310(b)(1); Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98.) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup.Ct. (National Union Fire Ins. Co. of Pittsburgh, Pa.) (1997) 53 Cal.App.4th 1113, 1117.) If “good cause” is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure. (Kirkland v. Sup.Ct. (Guess?, Inc.), supra, 95 Cal.App.4th at 98.)

RELEVANCY & PRIVACY:

“Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence . . .” (CCP § 2017.010.) For discovery purposes, information should be regarded as “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Sup.Ct. (City of San Fernando) (1995) 33 Cal.App.4th 1539, 1546; Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013.)

Even highly relevant, non-privileged information may be shielded from discovery if its disclosure would impair a person’s “inalienable right of privacy” provided by Calif. Const. Art. 1, § 1. (Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 855–856.) Unlike a privilege, the protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. Disclosure may be ordered if a “compelling public interest” would be served thereby. (Ibid.)

A right of privacy exists as to a party’s confidential financial affairs, even when the information sought is admittedly relevant to the litigation. (Cobb v. Sup.Ct. (1979) 99 Cal.App.3d 543, 550 — privacy as a limit on discovery of defendant’s net worth where punitive damages sought; and see CC § 3295(c).)

DOCUMENTS SOUGHT:

Defendant, through its Requests for Production of Documents, sought documents in support of Plaintiff’s allegations that “[i]n January 2013, Plaintiff suffered economic hardship due to changes in Plaintiff’s interest rate and higher repayment. Plaintiff used her savings and has undergone extreme budget cuts within her household to remain current with her mortgage payment,” as alleged in the Complaint (No. 2); all documents that evidence, demonstrate, or otherwise reflect Plaintiff’s income between September 2006 and the date of filing her Complaint (No. 11); and all documents that evidence, demonstrate, or otherwise reflect Plaintiff’s financial situation between September 2006 and the date of filing her Complaint (No. 12).

Plaintiff objected to the requests on the grounds of relevance and financial privacy. Plaintiff contends that the information concerning Plaintiff’s financial condition is not relevant because her ability to qualify for a loan modification is not at issue in this action.

[In this action, Plaintiff alleges that Defendants misrepresented to Plaintiff that they would review and processes Plaintiff’s loan modification application pursuant to the timelines and guidelines of the California HBOR; Defendants failed to give Plaintiff a timely review for HAMP assistance despite the fact that Plaintiff performed every term required for modification; Defendants failed to provide Plaintiff with a single point of contact that was readily familiar with her file and circumstances; and that Defendants attempted to foreclose on Plaintiff’s home while Plaintiff’s loan modification application was pending. (See First Amended Complaint.)]

However, Defendant, in its reply, submits evidence that Plaintiff’s loan was previously modified on May 7, 2010. (Reply, Exh. 1.)

To protect lenders against borrowers who submit multiple first lien loan applications for the purpose of delay, HBOR excuses servicers from evaluating applications from borrowers who have already been evaluated or were afforded a fair opportunity to be evaluated prior to January 1, 2013, or who have been evaluated or afforded a fair opportunity to be evaluated consistent with the statute’s requirements. (See CC § 2923.6(g).) However, these exceptions do not apply if the borrower provides the servicer with documentation evidencing a “material change” in the borrower’s financial circumstances since the previous application. (CC § 2923.6(g).)

Thus, Defendant would have been excused from evaluating Plaintiff’s application unless Plaintiff provided documentation evidencing a material change in her financial circumstances since the previous application.

Accordingly, it appears that the information sought is relevant, and that Plaintiff’s privacy interest in her finances is outweighed by the relevance of the information sought to the subject matter in the pending action. However, it appears that the information sought should be limited in time, i.e., from January 2010 to August 2014 (from around the time of the last modification to when Plaintiff commenced this action). As so limited, Plaintiff is ordered to serve further verified responses and to produce the relevant documents within 10 days.

REQUEST FOR SANCTIONS:

It appears that Plaintiff acted with substantial justification in objecting to the requests based on privacy. Thus, the court declines to award monetary sanctions against Defendant.