2015-00181475-CU-BT

Brian Spears vs. Lauren Spears

Nature of Proceeding: Motion to Compel 1) Form 2) Special 3) Production 4) Admissions

Filed By: Spears, Brian

Appearance required.

This matter will be heard by Judge Brown.

This matter is set for oral argument on the tentative ruling issued for the December 20, 2017 hearing date.

The tentative ruling is set forth below:

Plaintiff Brian Spears’ Motion to Compel Defendant PLM Loan Management Services, Inc. for Further Discovery Responses (Form Interrogatories, Requests for Production of Documents, Requests for Admission, and Special Interrogatories) is denied.

This motion is continued to January 4, 2018 at 2:00 p.m. in this department to allow for the in-custody plaintiff to receive a copy of the tentative ruling.

The Clerk shall fax a copy of this minute order to the litigation coordinator, who shall deliver a copy to plaintiff forthwith.

An appearance is required by all parties for the January 4, 2018 hearing.

On or around September 6, 2017, Plaintiff served Requests for Admissions, Requests for Production of Documents, Form and Special Interrogatories (“Discovery Requests”) on PLM’s counsel, Wright, Finlay, & Zak, LLP (“WFZ”). (Declaration of Joshua R.

Hernandez ¶2. Because PLM was a non-party at the time Plaintiff served his Discovery Requests, PLM served objections on September 28, 2017. (Id. ¶3).

PLM filed and served a Declaration of Non-Monetary Status (“DNMS”) in response to Plaintiffs Second Amended Complaint (“SAC”). The document was served a plaintiff’s address of record. No timely objection was filed, and therefore PLM is now a nonparty to the action by statute. The Civil Discovery Act (“CDA”) provides specific methods and procedures to obtain discovery against non-parties in pending lawsuits. Plaintiff served PLM as if it were still a party, with Requests for Admission, Form Interrogatories, Special Interrogatories, and Requests for Production. These discovery methods are not proper for a nonparty to a lawsuit under the California Discovery Act. (See Request for Judicial Notice, Exhibits 1-5.)

PLM is the foreclosure trustee pursuant to the Deed of Trust that is the subject of this action. (See SAC, 16). Accordingly, in response to Plaintiff’s SAC, PLM was entitled to file its Declaration of Non-Monetary Status (DNMS) Civil Code § 2924l(a), as the trustee: In the event that a trustee under a deed of trust is named in an action or proceeding in which that deed of trust is the subject, and in the event that the trustee maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee, and not arising out of any wrongful acts or omissions on its part in the performance of its duties as trustee, then, at any time, the trustee may file a declaration of nonmonetary status.

PLM filed and served the DNMS on March 16, 2017, in response to the SAC. Pursuant to Civ. Code § 2924l(c), Plaintiff had 15 days from service of the DNMS to file an objection. However, no objection was filed; therefore, PLM is now a nonparty to this action Pursuant to Civ. Code § 2924l (d): “In the event that no objection is served within the 15-day objection period, the trustee shall not be required to participate any further in the action or proceeding….” Accordingly, because there was no timely

objection filed in response to PLM’s DNMS, by statute, PLM is now a nonparty and is not required to participate any further in this action or proceeding.

Plaintiff filed a late opposition on December 13 stating that he had not received notice of the Declaration of Non-Monetary Status. Plaintiff’s declaration supporting his non-receipt is vague, including his address of record at the time of service. Plaintiff filed his Complaint on July 7, 2015. The DNMS was served on plaintiff at his address of record on September 11, 2015. It appears plaintiff was transferred to another facility sometime before July 31, 2015, (See ROA 17 letter from plaintiff to clerk stating he had been transferred and providing a new address) However, plaintiff never filed a change of address form with the Court. (See Bethlahmy v. Customcraft Industries, Inc. (1961) 192 Cal.App.2d 308, 310 [person “to be served” has the burden of notifying the court of any change of address, and failure to do so does not enable him to claim improper service.]; Westervelt v. Robertson, (1981) 122 Cal. App. 3d Supp. 1, 8) Thus, it appears that the DNMS was properly served on plaintiff at his address of record. Therefore, the Court rejects plaintiff’s argument that PLM should be treated as a party and ordered to answer the discovery.

This does not, however, preclude discovery by subpoena, directed to PLM Loan Management Services, Inc. for documents; nonetheless such is not before the court on this motion.