BANK OF AMERICA, N.A. VS WILLIAM J. SHEA

Case Number: EC061838    Hearing Date: November 07, 2014    Dept: NCG

TENTATIVE RULING (11/7/14)
#9
EC 061838
BANK OF AMERICA, N.A. v. SHEA

Defendant William Shea’s Motion to Compel Further Response to Demand for Production of Documents

TENTATIVE:
UNOPPOSED Motion to compel further responses to Demand for Production of Documents is GRANTED on the grounds stated in the moving papers and separate statement.

Plaintiff has waived objections, has failed to oppose the motion to meet its burden to justify its objections, and has failed to provide all of the material requested. Plaintiff is ORDERED to provide further responses, without objection, to Requests Nos. 4, 5, and 6, and to permit copying and inspection within ten days. Plaintiff is ordered to provide further response to Request No. 18 which provide all responsive documents, and fully complies with CCP §§ 2031.220 and 2031.280(a).

Monetary sanctions in the amount of ___________[ $2,460 requested] are awarded in favor of defendant William J. Shea and against plaintiff Bank of America, NA, and its counsel of record, jointly and severally, payable within 30 days.

FACTUAL BACKGROUND:
Plaintiff Bank of America, N.A. brings this action alleging that it entered into a written loan agreement/note with defendant William Shea, which was charged off as a loss after defendant defaulted on the terms of the note. The complaint alleges that in March of 2012, plaintiff’s deed of trust lien interest against property securing the debt was eliminated by virtue of a tax sale, making the subject note unsecured.

ANALYSIS:
Procedural
Waiver of Objections
Under CCP § 2031.300, “if a party to whom a demand for inspection, copying, testing or sampling is directed fails to serve a timely response to it,” that party “waives any objection to the demand, including one based on privilege or on the protection for work product…”

Under CCP § 2031.260(a):
“(a) Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other
parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response.”

Here, the demand was served on June 5, 2014. [Ex. A]. The parties agreed to an extension of time to respond to August 15, 2014. [Ex. B]. Responses were served on August 25, 2014, ten days late. [Ex. C]. Accordingly, all objections have been waived. There is no opposition to this motion, and no request for relief from the waiver of objections pursuant to CCP § 2031.300, which requires the court to make certain specific findings it cannot make here. The motion is therefore granted to the extent responses without objection are requested.

Substantive
The burden is on the moving party to show both relevance to the subject matter and
specific facts justifying discovery. Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168.

The Separate Statement involves four requests for production.

Requests Nos. 4, 5, 6
Requests Nos. 4-6 request documents concerning appraisals of the subject property, broker opinions of the value of the property and photographs depicting the subject property.

The response to each is “Objection, this Request for Production calls for information that is not relevant to the subject matter of the case and is not calculated to lead to the discovery of admissible evidence.”

Defendant explains that these documents are discoverable as they relate to defendant’s defense that plaintiff failed to mitigate its damages by failing to foreclose on the property while it was a secured lienholder, and evidently, although it had notice of the tax sale, as a junior lienholder failed to participate in the sale.

These documents accordingly appear relevant, and discoverable, shifting the burden to plaintiff to justify any objections or failure to comply with the demand. There is no opposition here, so plaintiff has failed to meet this burden. In addition, as noted above, objections have been waived. Further responses without objection are therefore ordered to be provided.

Requests No. 18
This request seeks notes, writings and other documents which evidence the reasons defendant’s loan was charged off in August 2010.

The response is “responding party has provided the document bates stamped as number 1 to 136.”

Defendant argues that defendant has no way to ascertain which documents are responsive to this request, as none of those produced appear to be.

Under CCP section 2031.210, a response shall either be a statement of compliance, a representation that the party lacks the ability to comply, or an objection.

To the extent this response is supposed to be a statement of compliance, CCP section 2031.220 requires:
“A statement that a party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being make will be included in the production.”

This statement is not made here.

In addition, under CCP section 2031.280(a), “Any documents produced in response to an inspection demand shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.”

It is not clear if the documents are produced as kept in the usual course of business, or, if not, that the documents have been appropriately organized to correspond to what is asked in this demand, rather than in other demands. A further response is ordered to be provided.

Sanctions
Moving party seeks sanctions.

In this case, plaintiff has made improper objection, and evasive responses, and made the motion necessary. The sanctions sought are $2,460.

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