Case Number: 18STCV07007 Hearing Date: March 17, 2020 Dept: 17

County of Los Angeles

DEPARTMENT 17

ASSADULLAH SHAHAND; SABAITIP SHAHAND

vs.

NATIONSTAR MORTGAGE, LLC dba MR.COOPER, et al.

Case No.: 18STCV07007

Hearing Date: March 17, 2020, advanced to March 16, 2020

AND RELATED CROSS-ACTIONS

Nationstar’s motion is GRANTED in part, CONTINUED in part to April 15, 2020, at 8:30 a.m.. Sanctions in the amount of $500 are imposed on Mr. Osmena’s counsel.

Plaintiffs Assadullah Shahand and Sabaitip Shahand (Plaintiffs) filed suit against Nationstar Mortgage, LLC, dba Mr. Cooper (Nationstar), U.S. Bank, as trustee for Structured Adjustable Rate Mortgage Loan Trust, Mortgage Pass-Through Certificates, Series 2005-9 (U.S. Bank); and Clear Recon Corp. (Clear).

On March 12, 2019, Nationstar and U.S. Bank, as Cross-Complainants, filed a cross-complaint (XC) against the Shahands, Sionita C. Angeles, Manual Osmena (Mr.Osmena), and Tip Top Merchandizing, Inc. (Tip Top), setting forth claims for 1) unjust enrichment; 2) Penal Code section 496; 3) fraud; and 4) declaratory relief.

Cross-Complainant Nationstar moves to compel further responses from Tip Top (set for 3/17/20) and Mr.Osmena (set for 3/16/20) to its Requests for Production (RFP) (Set One).

Nationstar’s motions are for both March 16 and 17 unopposed, and consolidated into a single analysis.

Legal Standard

In responding to a demand for production of documents, a party must provide one of the following: (1) a legally adequate statement of compliance; (2) a statement of inability to comply; or (3) an objection to the particular demand. (See Code Civ. Proc., § 2031.210, subd. (a).) If any objections are made, they must: (1) “[i]dentify with particularity any document … falling within any category of item in the demand to which an objection is being made”; and (2) “[s]et forth clearly the extent of, and the specific ground for, the objection.” (Id., § 2031.240, subd. (b).)

To prevail, a party moving for an order compelling further responses to a document production demand must first offer facts demonstrating “good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.) If “good cause” is shown by the moving party, the burden shifts to the responding party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

Meet-and-Confer History

Nationstar served both Tip Top and Mr. Osmena (the parties) with its RFPs (Set One) on May 24, 2019. Tip-Top’s and Mr. Osmena’s responses were due on June 28, 2019, but responses were not forthcoming by that deadline. After notifying the parties that any objections had thereby been waived, Nationstar granted an extension until July 22, 2019. The parties served their document production to Nationstar on July 29, 2019, which consisted of seven documents filed with the Los Angeles County Recorder and three documents filed with the California Secretary of State. When Nationstar sent a meet-and-confer letter on September 12, 2019 informing the parties that it deemed their responses inadequate and would offer an extension until October 1, 2019, the parties agreed to supplement their responses and later agreed to a further extension until November 22, 2019. While Mr. Osmena provided supplemental responses on November 13, 2019, no supplemental responses were received from Tip Top. Nationstar notified the parties that their discovery responses remained inadequate and offered an extension until January 3, 2020 which the parties accepted. To date, Nationstar has not received additional responses from either Tip Top or Mr. Osmena.

Discussion

I. RFPs Propounded on Mr. Osmena

Nationstar moves to compel further responses from Mr. Osmena to RFP Nos. 1, 3, 4, 6, 11, 12 on the grounds that Mr. Osmena’s responses are inadequate. Specifically, Nationstar contends that Mr. Osmena’s has failed to produce responsive documents in keeping with his representation in his supplemental responses that he would do so.

Mr. Osmena issued the following supplemental responses to each of the disputed RFPS:

Responding parties will comply with this demand of all documents in responding party’s possession, custody, or control.

Since issuing this supplemental response, Mr. Osmena has failed to produce any additional responsive documents. Mr. Osmena submitted no opposition to justify this failure.

Thus, the Court orders Mr. Osmena to provide supplemental responses within 15 days of this order.

I. RFPs Propounded on Tip Top

Nationstar moves to compel further responses from Tip Top to RFP Nos. 1, 3, 4, 6, 11, 12 on the grounds that Tip Top’s responses are inadequate.

CCP section 2031.230 provides:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

In response to each of the disputed RFPs, Tip Top issued a more or less identical response which differed in the party it identified as being likely to have possession or control of the documents, but generally stated:

After engaging in diligent search and reasonable inquiry, responding party is unable to comply with this demand because such documents are not in the possession or control of responding party.

Nationstar argues that these responses are inadequate because “Tip-Top has failed to produce documents responsive to Cross-Complainant’s Requests for Production.” (Motion 5:11-13.) However, Tip Top’s responses comply with all the requirements stipulated by CCP section 2031.230: they affirm that a diligent search was made to locate the requested documents, state that the party is unable to comply, and provides a reason why (in this case, because they are not in the possession or control of the responding party). Unlike the separate statement submitted for the motion to compel further responses from Mr. Osmena, the separate statement submitted to this Court for RFPs propounded on Tip Top did not included any supplemental response by Tip Top representing that it would agree to produce additional responsive documents. In its separate statement, Nationstar contends that Tip Top’s statement of its inability to comply “defies reason”, given Tip Top’s “close involvement in the transactions surrounding the Property.” (Separate Statement 5:19-21.) However, the only evidence submitted by Nationstar to suggest Tip Top has responsive documents in its possession is a single assertion that “Cross-Defendant OSMENA admitted that he did not complete a diligent search.” (Separate Statement, 5:18.) However, this assertion is not substantiated by a signed declaration or copy of the relevant deposition testimony. More importantly, this assertion speaks to Mr. Osmena’s compliance with propounded RFPs, not Tip Top’s.

Nationstar must advance a fact-specific argument as to why there must be additional documents in Tip Top’s possession. Nationstar’s evidentiary support, as submitted here, is inadequate, and Tip Top’s RFP responses are otherwise code-complaint. (See CCP §2031.230.) The Court will continue this motion to April 15, 2020, at 8:30 a.m. with respect to the RFP propounded on Tip Top, to allow the opportunity to submit additional evidence.

Sanctions

Nationstar seeks $4,950.00 in sanctions for Tip Top’s and Mr. Osmena’s counsel’s misuse of the discovery process.

Under Code of Civil Procedure section 2023.030, the court is empowered to impose monetary, issue, evidence, or terminating sanctions for misuse of the discovery process, which includes, but is not limited to, the following:

(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(b) Using a discovery method in a manner that does not comply with its specified procedures.

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(d) Failing to respond or to submit to an authorized method of discovery.

(e) Making, without substantial justification, an unmeritorious objection to discovery.

(f) Making an evasive response to discovery.

(g) Disobeying a court order to provide discovery.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made. (Code Civ. Proc., § 2023.010.)

The discovery statutes are meant to help move discovery along in a timely and orderly fashion, and, although Nationstar was lenient in granting opposing counsel multiple extensions to serve supplemental responses, counsel has submitted no explanation for why, by January 3, 2020, Nationstar was still left without supplemental responses, despite multiple promises to provide them. The Court notes, however, that it is unclear from the moving papers whether counsel made representations conceding that Tip Top’s discovery responses were inadequate (while Nationstar asserts that counsel did so, the separate statement submitted does not contain any such representation). In light of these considerations, sanctions in the amount of $500 are imposed on Mr. Osmena’s counsel for failing to oppose this motion, and for causing unnecessary delay in the discovery process.

It is so ordered.

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.

Dated: March ___, 2020

Hon. Jon R. Takasugi

Judge of the Superior Court