Case Name: Azzam Abdo v. Nationstar Mortgage LLC, et al.
Case No.: 2014-1-CV-266123

Currently before the Court is plaintiff Azzam A. Abdo’s (“Plaintiff”) motion for an order deeming admitted requests for admission (“RFA”) and to compel defendant Deutsche Bank (“DB”) to provide initial responses to special interrogatories (“SI”).

I. Factual Background

This is an action arising from the refinance of Plaintiff’s home. Plaintiff, a self-represented litigant, and his wife, Pearl Abdo (collectively, the “Abdos”), owned and resided at 1580 Aldrich Way, San Jose, California 95121 (the “San Jose Property”) for 35 years. (Second Amended Complaint (“SAC”), ¶¶ 4, 17.) In 2004, they refinanced the San Jose Property and agreed to an adjustable interest rate loan. (SAC, ¶ 17.) Three years later, without Plaintiff’s knowledge or consent, defendant Avo Oughourlian refinanced the 2004 loan and forged Plaintiff’s signature on several loan documents. (SAC, ¶ 28.)

In mid-2010, Plaintiff and his child became ill. (SAC, ¶ 18.) As a result, Plaintiff began to face difficulties making his loan payments for the San Jose Property and another property in Cupertino, California (the “Cupertino Property”). (SAC, ¶ 18.) To avoid a potential default on the Cupertino Property, he contacted his loan servicer to renegotiate the terms of his loan on the San Jose Property. (SAC, ¶ 18.) Plaintiff, however, was unable to modify the loan because it was reassigned to no less than six different loan servicers. (SAC, ¶¶ 128, 20.)

On April 27, 2015, Plaintiff filed the operative SAC against DB and several other banks and loan servicers asserting fourteen causes of action for: (1) fraud; (2) intentional interference with prospective economic advantage; (3) interference with contractual relations; (4) negligent misrepresentation; (5) breach of the covenant of good faith and fair dealing; (6) unfair and unlawful business practices; (7) defamation; (8) breach of fiduciary duty; (9) negligent training; (10) quiet title; (11) declaratory relief; (12) injunctive relief; (13) violation of privacy; and (14) fraud.

II. Procedural Background and Discovery Dispute

On October 28, 2015 and November 4, 2015, Plaintiff served DB with the RFA and SI. (Plaintiff Decl., ¶¶ 1, 5.) Plaintiff agreed to extend the time to provide responses to these requests until December 21, 2015. (Plaintiff Decl., Ex. 1.) On December 9, 2015, DB served Plaintiff with unverified responses to the RFA and SI, consisting of both objections and substantive responses. (Plaintiff Decl., Exs. 2, 5.) DB provided Plaintiff with verifications to these responses on January 8, 2016. (Medeiros Decl., Ex. A.)

Dissatisfied with the responses, Plaintiff sent meet and confer letters to opposing counsel on December 17 and 26, 2015, in which he requested supplemental responses. (Plaintiff Decl., Exs. 3-4, 6.) The parties continued to meet and confer until the end of January, but it appears that DB did not serve supplemental responses to the discovery requests.

On April 5, 2016, Plaintiff filed the instant motion for an order deeming the RFA admitted and to compel initial responses to the SI. DB filed its opposition to the motion on April 27, 2016. Plaintiff filed his reply on May 2, 2016.

III. Motion for an Order Deeming RFA Admitted

Pursuant to Code of Civil Procedure section 2033.280, Plaintiff moves for an order to deem the RFA admitted on the ground that DB failed to verify its responses.

The party to whom requests for admissions have been propounded is required to serve a response within 30 days, or at any later date to which the parties have agreed. (Code Civ. Proc., §§ 2033.250, 2033.260.) Where a verification to a response is required, service of an unverified response is tantamount to no response at all. (Appleton v. Sup. Ct. (1988) 206 Cal.App.3d 632, 635-636.) Substantive responses to requests for admission must be verified. (Code Civ. Proc., § 2033.240, subd. (b).) Objections need not be verified. (Food 4 Less Supermarkets, Inc. v. Sup. Ct. (1995) 40 Cal.App.4th 651, 657-658 [stating that there is no need to verify the portion of a discovery response containing objections].)

If the party to whom requests for admissions are directed fails to serve a timely response, the propounding party may move for an order that the truth of any matter specified therein be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The moving party need only show that the discovery was propounded and a timely response was not served. (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, disapproved of on another point by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973.) The court shall make this order unless it finds that the responding party served a proposed response before the hearing on the motion that is substantially code-compliant. (Code Civ. Proc., § 2033.280, subd. (c).)

As previously noted, Plaintiff agreed to extend DB’s time to provide responses to the RFA until December 21, 2015, and DB provided unverified responses consisting of both objections and substantive responses on December 9, 2015.

Plaintiff argues that an order deeming the RFA admitted is warranted because DB’s responses were not verified and, therefore, should be treated as no responses at all. (Appleton, supra, 206 Cal.App.3d at p. 636.) This argument lacks merit. A party need not verify the portion of a response containing objections. (Food 4 Less Supermarkets, Inc., supra, 40 Cal.App.4th at p. 657.) As such, “if the response is served within the statutory time period, that portion of the response must be considered timely notwithstanding the lack of verification.” (Ibid.) Here, DB served responses containing objections within the time frame agreed by the parties. (Plaintiff Decl., Ex. 2.) Accordingly, since the responses are timely, the motion for an order deeming the RFA admitted is DENIED. (See Demyer, supra, 36 Cal.App.4th at p. 395.)

IV. Motion to Compel Initial Responses to the SI

Pursuant to Code of Civil Procedure section 2030.290, Plaintiff moves to compel DB to provide initial responses to the SI on the ground that DB failed to verify its responses.

The party to whom interrogatories have been propounded is required to serve a response within 30 days, or at any later date to which the parties have agreed. (Code Civ. Proc., §§ 2030.260, 2030.270.) If the party to whom the discovery is directed fails to serve a timely response, the propounding party may move for an order compelling a response. (Code Civ. Proc., § 2030.290, subd. (b).) The moving party need only show that the discovery was propounded and a response was not served. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-906.)

Plaintiff argues that his motion to compel initial responses should be granted because DB’s responses to the SI were not verified and, therefore, should be treated as no responses at all. (See Appleton, supra, 206 Cal.App.3d at p. 636.) This argument is not well-taken. First, DB timely served Plaintiff with responses containing objections to the SI, which did not require verifications. As such, these objections were timely served. (See Food 4 Less Supermarkets, Inc., supra, 40 Cal.App.4th at p. 657.) Second, DB subsequently served Plaintiff with a verification of the responses and provides the Court with a proof of service attesting to that fact. (See Medeiros Decl., Ex. A.)

In reply, Plaintiff states that DB did not properly serve this verification because he never received it in the mail. A valid proof of service creates a rebuttable presumption that papers were properly served by mail and therefore received. (Dill v. Berquist Construction Co., Inc. (1994) 24 Cal.App.4th 1426, 1441-1442.) The rebuttable presumption can only be dispelled by contradictory evidence. (Craig v. Brown & Root (2000) 84 Cal.App.4th 416, 421.) Once the presumption is dispelled, the trier of fact shall determine the existence or non-existence of the fact from the evidence and any appropriate inferences that may be drawn from it. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1479.)

Here, DB provides the Court with a signed proof of service dated January 8, 2016, in which Sylvia Coleman declares that she is over eighteen years; is not a party to the action; and served Plaintiff with the verifications to the SI by U.S. Mail at his address of record on January 8, 2016. This proof of service is valid because it contains all of the elements required by Code of Civil Procedure section 1013a, which sets forth the requirements for service by mail. Therefore, the proof of service creates a rebuttable presumption that the verification was properly served by mail and received by Plaintiff.

While Plaintiff declares that he never received the verification, his declaration does not constitute contradictory evidence sufficient to rebut the presumption because it is not signed under penalty of perjury and, thus, does not constitute admissible evidence. (See Code Civ. Proc., § 2015.5 [stating the requirements for an admissible declaration]; see also Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606-611 [providing that a declaration must include a certification that the statement is “true under penalty of perjury”].) Since Plaintiff does not rebut the presumption, the Court finds that the verification to the SI was properly served on January 8, 2016. Accordingly, Plaintiff fails to demonstrate that DB did not serve verified responses to the SI.

In light of the foregoing, Plaintiff’s motion to compel initial responses to the SI is DENIED.

V. Requests for Monetary Sanctions

Both Plaintiff and DB request monetary sanctions in connection with the instant motion.

A. Plaintiff’s Request

Plaintiff requests $250 in monetary sanctions against DB and its counsel under two different statutes.

First, Plaintiff seeks monetary sanctions under Code of Civil Procedure section 2030.290, subdivision (c), which states that the court shall impose a monetary sanction against any party, person or attorney who unsuccessfully makes or opposes a motion to compel an initial response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust. Here, DB successfully opposed the motion. Accordingly, Plaintiff is not entitled to monetary sanctions under this statute.

Second, Plaintiff requests monetary sanctions under Code of Civil Procedure section 2033.280, subdivision (c), which provides that “[i]t is mandatory that the court impose a monetary sanction … on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” Here, the instant motion was not necessary because DB served timely responses to the RFA. Therefore, Plaintiff is not entitled to monetary sanctions under this statute.

In light of the foregoing, Plaintiff’s request for monetary sanctions is DENIED.

B. DB’s Request

DB requests monetary sanctions against Plaintiff in the amount of $2,419 under Code of Civil Procedure sections 2031.300, subdivision (d) and 2033.290, subdivision (d), which provide that the court shall impose a monetary sanction against any party, person or attorney who unsuccessfully makes or opposes a motion to compel further responses to requests for admissions or initial responses to requests for production of documents unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust. Here, Plaintiff did not bring a motion to compel further responses to requests for admissions or initial responses to requests for production of documents. As such, DB is not entitled to monetary sanctions under these statutes. Accordingly, DB’s request for monetary sanctions is DENIED.