Case Name: Merritt, et al. v. Mozilo, et al.

Case No.: 1-09-CV-159993

Defendants Countrywide Financial Corporation, Countrywide Home Loans, Inc., Bank of America, N.A., Angelo Mozilo, David Sambol, Kenneth Lewis and Michael Colyer move against Plaintiffs David Merritt and Salma Merritt for evidentiary, issue, contempt, and monetary sanctions, as well as a stay of discovery until monetary sanctions are paid.

The “certificate of service” on Plaintiff’s opposition is not under oath and does not reference the “CD of Bate Docs Serve” attached to the original opposition memorandum. The “certificate of service” refers only to service by email, which is proper only if there is an agreement between or among the parties therefor.

I. Failure to Pay Monetary Sanctions

Although Plaintiffs dispute almost all of Defendants’ factual assertions, they concede failure to pay monetary sanctions required to be paid by two separate court orders. (Opposition Memorandum, at 5:15-16: Plaintiffs misstate the total as $5,600, when it is in fact $5,620.)

Defendants have requested that the Court stay discovery until full payment is made. However, given all the circumstances of this case including the time since filing, the Court does not deem stay relief appropriate. The orders imposing monetary sanctions are enforceable as judgments. Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.

II. Failure to Comply with the Court’s February 28, 2012 Order

Defendants’ moving papers establish that Plaintiffs had failed to comply with the Court’s February 28, 2012 Order by serving code-compliant responses and producing documents.

Attached as Exhibit K to the Declaration of David Merritt in opposition to this motion, but not referenced or authenticated in the Declaration, is a document entitled “Plaintiffs David & Salma Merritt Amended Responses to Countrywide Home Loans Requests for Production of Documents, Set One, Third Amended”, dated April 14, 2014. Exhibit K appears to be an original, so it is not known to the Court whether Defendants have been served with an original, as the Code of Civil Procedure requires. Apparently, after this motion was filed, Plaintiffs prepared these unverified responses which do not comply with Code of Civil Procedure section 2031.

Even if these responses were served on Defendants after the motion was filed, that fact does not preclude the Court from ruling on the motion. Once a discovery motion is filed, the Court has discretion to make an order appropriate under the circumstances and consistent with the purposes of the Discovery Act. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407-408.

Defendants are entitled to, but do not yet have, a statement under oath from each Plaintiff that they have produced all responsive documents in their possession, custody or control.

Defendants are also entitled to a production of documents organized in the manner set forth in Code of Civil Procedure section 2031.280. Given the circumstances of this case, including the delay in producing the documents, the Court orders that Plaintiffs produce the documents in accordance with the second-stated option: i.e., “labeled to correspond with the categories in the demand.” Plaintiffs may comply with this requirement by serving an inventory that lists under each demand the production numbers of the documents responsive to each demand.

Plaintiffs’ code-compliant verified responses and the inventory by demand number must be served on Defendants and all responsive documents produced no later than May 15, 2014.

Defendants’ request for evidentiary, issue, contempt and monetary sanctions is continued to June 5, 2014. On or before May 19, 2014, Defendants may file and serve a supplemental declaration and a memorandum not exceeding three pages.