Inanoria v. JP Morgan Chase Bank, N.A., et al.		CASE NO. 113CV239793
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 9

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 21 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 4 October 2013, the motion of Defendant JP Morgan Chase Bank (“Defendant” or “Chase”) to compel further responses to requests for production of documents, to compel attendance at a deposition and for monetary sanctions was argued and submitted.  Plaintiff Angelo Inanoria did not file formal opposition to the motion.[1]

Defendant filed a “Reply”. The Court will not consider any arguments made in this reply. The Court will and does note facts that Plaintiff has not filed any supplemental responses, nor has he sat for deposition since the initial filing.

Background

This matter arises out of Plaintiff’s allegation that he entered into a loan modification agreement with Defendant and that Defendant later breached that agreement by foreclosing on Plaintiff’s property. After Defendant’s demurrers were sustained in part, and Plaintiff’s Complaint was amended, Defendant began discovery.

On 18 April 2014, Defendant served, via overnight mail, Requests for the Production of Documents on Plaintiff. Plaintiff personally served responses on 23 May 2014 which included objections. Chase corresponded with Plaintiff indicating it believed Plaintiff’s responses were deficient. On 7 July 2014, Chase filed the instant motion to compel further responses.

On 16 May 2014, Defendant served a notice of Deposition on Plaintiff, setting the date for 17 June 2014. On the morning of 17 June 2014, Plaintiff sent Defendant’s counsel an e-mail to the effect that he would not attend due to illness. Chase sent Plaintiff several e-mails attempting to reschedule, but Plaintiff indicated he would not be available until near the end of July. Chase filed the instant motion to compel Plaintiff to sit for deposition on 7 July 2014.

As of the date of the hearing, Plaintiff has not served any additional responses, nor has he sat for deposition.

Motion to Compel Further Responses to Document Requests

A valid motion to compel further responses requires showing specific facts demonstrating good cause justifying the discovery sought. CCP § 2031.310(b)(1); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2d Dist. 2007) 148 Cal.App.4th 390, 403. Good cause is demonstrated by the moving party showing 1) relevance to the subject matter, for example how the information in the documents tends to prove or disprove an issue in the case; and 2) specific facts justifying discovery, for example, why the information is necessary for trial preparation or would prevent surprise at trial. Brown & Weil, Civil Procedure Before Trial, § 8:1495.6 [citing Kirkland v. Superior Ct. (2002) 95 Cal.App.4th 92, 98]. Additional facts demonstrating there is no alternative source for the information is important, but not essential in every case to demonstrate good cause. Brown & Weil at § 8:1495.6.

Upon a showing of good cause, the burden falls on the responding party to justify any objections made to the document disclosure. Brown & Weil at §8:1496 [citing Kirkland 95 Cal.App.4th at 98] If only an item or category of an inspection demand is objectionable, the response shall contain a statement of compliance, or representation of inability to comply with respect to the remainder of that item or category  Code Civ. Proc. § 2031.240 (a). When objecting to a request for production, either in full or in part, the grounds for that objection must be fully set forth. CCP § 2031.240(b)(2). If the objection is based on a privilege, or based on the attorney work-product rule, the specific privilege invoked, or the work-product rule must be expressly asserted. Code Civ. Proc. § 2031.240(b)(2). Additionally, for any demand deemed partly or fully objectionable, the response shall identify, with particularity, any document, thing, tangible land or electronically stored information within the objectionable category that would be responsive to the request. Code Civ. Proc. § 2031.240(b)(1). This identification is the so-called “privilege log”. Code Civ. Proc. § 2031.240(b)(1); see also Hernandez v. Superior Ct. (2003) 112 Cal.App.4th 285, 291. A “privilege log” is used to provide parties and the Court a means to evaluate the merits of the objection. Hernandez, 112 Cal.App.4th at 292.

The motion must also include a meet and confer declaration that meets the requirements of Code Civ. Proc. § 2016.040; Code Civ. Proc. § 2031.310(b)(2). A meet and confer declaration must show a reasonable and good faith attempt at an informal resolution as to each issue addressed in the motion. Code Civ. Proc. § 2016.040. The standards to determine whether a declaration demonstrates a reasonable and good faith attempt at informal resolution include the size and complexity of the litigation, the history of the litigation, the nature of the dispute, and the nature of the discovery requested. See Stewart v. Colonial W. Agency, Inc. (2d Dist. 2001) 87 Cal.App.4th 1006, 1016

Finally, the motion must include a separate statement. Cal. Rules of Court, rule 3.1345(a)(3). This statement must include the text of the demand to be further compelled, the text of each response offered by the responding party, and sufficient legal and factual reasoning to identify to the Court the basis to compel a party to respond further. Cal. Rules of Court, rule 3.1345(c).

Upon serving a proper request for the production of documents, the responding party has 30 days to serve a response. Code Civ. Proc. §2031.260(a). This time is extended based on the method of service if the request was not personally served. See Code Civ. Proc. §1013; Code Civ. Proc. §2016.050. All objections in the response are waived if the response is not timely served. Code Civ. Proc. §2031.300(a).

A proper response to a discovery request will indicate that the responding party 1) agrees to comply fully with all conditions of the demand and that the party will produce what is demanded, that the items are in the custody of the responding party and there is no objection. Code Civ. Proc. §2031.220; 2) The party will partially comply, identifying what will be produced and that they are in the custody or control of the party, that the party is unable to comply with a portion of the demand, and state the reasons why full compliance is impossible. Ibid; or 3) Provide an objection and state that compliance is not possible, provide the grounds for the objection, and if privilege is the ground for objection, provide a log of documents that are being withheld on the ground of privilege. Code Civ. Proc. §2031.240(a).

The Court notes at the outset that Chase has submitted no documents and made no arguments that demonstrate good cause. Chase’s argument hinges on the premise that Chase propounded Requests for the Production of Documents, but did not receive compliant, nor timely, responses. Chase’s Separate Statement also does not address the relevance of its requests. While the Court might look to the discovery requests and determine relevance for itself, that is not the Court’s burden. That burden falls on the moving party. On the one hand, it might be argued that Chase has not met its burden.  But that argument was not made here.[2]

The Court, on review of the requests themselves, can see they are facially relevant to the case at hand. Chase met its obligations to meet and confer, and provided a Separate Statement. Chase met its burden to make the instant motion.

Chase makes a request to compel compliance with Plaintiff’s responses, noting that Plaintiff has produced no documents. Because of the disposition of the motion, the request is moot, but the Court notes that Chase has not cited authority for the proposition that the Court can order such compliance. Chase’s cited authority, as it relates to the requests for production of documents, is limited solely to the matter of compelling further responses. The Court will, therefore, not consider Chase’s request to compel compliance.

Therefore, the burden falls on Plaintiff to justify any objections to document disclosure. Chase served its Request on 18 April 2014 via overnight mail. Overnight mail adds two court days to the available response time. Plaintiff’s responses were due on 20 May 2014. Plaintiff personally served responses on 23 May 2014. Plaintiff did not serve timely responses and therefore all objections are waived.[3] Plaintiff indicated that it may withhold documents subject to his waived objections. This is not a proper response. Therefore, an order to compel is appropriate.

Defendant’s motion to Compel Further Responses to JP Morgan Chase Bank, N.A.’s Request for Production of Documents, Set One is GRANTED. Plaintiff will serve verified, code-compliant responses, without objection, on Defendant within 20 days of the date of this order.

Motion to Compel Deposition Attendance

To compel attendance at a deposition, after a party failed to appear, the moving party must show that the deponent was properly served with a deposition notice. Code Civ. Proc. §2025.280(a). The moving party must then show that the deponent did not appear for the deposition. Code Civ. Proc. §2025.450(a). Finally, the moving party must show that follow-up contact was made. Code Civ. Proc. §2025.450(b)(2); Leko v. Cornerstone Home Inspection (2d Dist. 2001) 86 Cal.App.4th 1109, 1124. While not as formal as a meet-and-confer requirement, the moving party still must make a good-faith attempt to resolve the issue before bringing the matter before the Court. See Code Civ. Proc. §2025.450(b)(2); Leko, supra, 86 Cal.App.4th at 1124; Sears, Roebuck & Co. v. National Un. Fire Ins. Co. (2d Dist. 2005) 131 Cal.App.4th 1342, 1351-52.

Here, Chase demonstrates that it properly served Plaintiff with a deposition notice. A notice of non-appearance confirms that Plaintiff did not appear to sit for deposition. Chase provided the Court with numerous e-mail communications demonstrating a follow-up contact was made. Chase’s “Reply”, which the Court is considering only for the facts that it provides, demonstrates that Plaintiff still has not sat for deposition, in spite of Plaintiff claiming availability in the third or fourth week of July.

Chase provided documents from Plaintiff purporting to be two letters from Plaintiff’s physicians stating that Plaintiff is too ill to appear. However, these letters do not excuse Plaintiff’s non-appearance. Plaintiff could have sought a protective order from the Court or otherwise justified Plaintiff’s non-appearance himself. He did not.

Defendant’s motion to Compel Plaintiff Angelo Inanoria to sit for a Deposition is GRANTED. Defendant and Plaintiff will agree to a time within 20 days of the date of this order for Plaintiff Inanoria to sit for deposition. Deposition will take place at Defendant’s counsel’s office.

Request for Monetary Sanctions

Chase makes a request for monetary sanctions in its “Reply” citing Code of Civil Procedure Sections 2023.010(d) and 2023.030(a). Without addressing any other potential defects with Chase’s request for sanctions, the Court notes that Chase did not make a request for monetary sanctions in the original Notice of Motion. See Code Civ. Proc. §2023.040. The Court will decline sanctions.

Defendant’s request for monetary sanctions is DENIED.

Conclusion and Order

Defendant’s motion to compel further responses to JP Morgan Chase, N.A.’s Request for Production of Documents, Set One is GRANTED. Plaintiff will serve verified, code-compliant responses without objections on Defendant within 20 days of the date of this order.

Defendant’s motion to Compel Plaintiff Angelo Inanoria to sit for a Deposition is GRANTED. Defendant and Plaintiff will agree to a time within 20 days of the date of this order for Plaintiff Inanoria to sit for deposition. Deposition will take place at Defendant’s counsel’s office or at some other code compliant location or by agreement of counsel.

Defendant’s request for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] See Shoemaker v. County of Los Angeles (1995) 37 Cal. App. 4th 618, 634, n.17, citing Cox Cable San Diego, Inc. v. City of San Diego (1987) 188 Cal. App. 3d 952, 968 stands for the proposition that ordinarily, if an argument is not presented, it will not be considered.

[3] The Court notes that Plaintiff, appearing in pro per, made purportedly boilerplate objections including those of withholding documents due to attorney-client privilege, or attorney work-product. Because there is no attorney of record for Plaintiff, the Court is skeptical of, but does not decide, the merits of those objections.