Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
People of the State of California vs $29.690.90 U.S. Currency and Kevin Cogan
Case No: 18CV06015
Hearing Date: Fri Nov 22, 2019 9:30

Nature of Proceedings: Motion: Strike Claim Opposing Forfeiture

TENTATIVE RULING: Should the People be able to provide a corrected Proof of Service to the Court, truthfully reflecting a timely October 2019 service date for the Motion to Strike, as well as a declaration of counsel reflecting and explaining how it was that the Proof of Service accompanying the motion did not accurately reflect the correct service date, the Court will grant the motion.

Background: On September 10, 2018, funds totaling $29,690.90 in three bank accounts belonging to Kevin John Cogan were seized by the Santa Barbara County Sheriff’s Department, including $14,637.75 from Wells Fargo Bank, and $11,314.46 and $3,738.69 both from Malaga Bank. The funds were seized pursuant to Health & Safety Code section 11470, based upon the Sheriff’s Department’s belief that they were used as an instrument to facilitate the manufacture of, possession for sale or sale of a controlled substance, or were exchanged or intended to be exchanged for a controlled substance, or were proceeds traceable to an exchange or were intended to be used to facilitate the illegal marijuana cultivation, sale, possession for sale, or conspiracy to commit one of those offenses, at 1825 Tepusquet Road and 7930 Blazing Saddle Road, both in Santa Maria.

The People of the State of California (People) filed their petition for forfeiture of the seized funds under Health and Safety Code Section 11469, on December 7, 2018. On January 22, 2019, claimant Kevin Cogan (Cogan) filed a claim opposing forfeiture of the property. Cogan alleges that he is the owner of the property and requests that the property not be forfeited. Cogan is represented by counsel.

The parties have engaged in discovery in this action. After Cogan failed to appear for a noticed deposition, and failed to respond to a request for alternative dates for the deposition, the People on September 20, 2019, obtained an order compelling Cogan to appear for a deposition at the District Attorney’s Santa Barbara office, on or before October 11, 2019. The People thereafter noticed the deposition for October 8, 2019, serving the Notice of Deposition along with the court’s Minute Order from the September 20, 2019 hearing, and a letter from counsel requesting that Cogan’s counsel advise if the scheduled date was not convenient and if he wished to schedule it for an alternate date. Cogan did not serve and objection to the deposition notice. Cogan failed to appear on October 8, and an Affidavit of Nonappearance was obtained from the Court reporter, reflecting that neither Cogan nor his attorneys appeared for the noticed deposition. Cogan’s counsel has not made further contact with the District Attorney’s Office.

The People have now filed a motion to strike Cogan’s Claim Opposing Forfeiture, as a terminating discovery sanction, arising from his failure to comply with the court order compelling him to appear for deposition. (Code Civ. Proc., § 2025.450, subd. (h).)

The motion was served on Cogan, through his counsel, as reflected on a Proof of Service signed on October 17, 2019. However, the Proof of Service appears to contain a typographical error, likely resulting from the reuse of an earlier proof of service from the case, in stating that the motion was served on March 16, 2015.

Cogan has not opposed the motion.

ANALYSIS: The Court suspects that the Proof of Service attached to the Motion to Strike, reflecting a 2015 service date of the motion, arose from counsel’s reuse of a Proof of Service form which he did not completely edit to reflect the accurate information for this case, including the actual service date.

Such errors are not unusual, in this Court’s experience, even on documents executed under penalty of perjury. Should the People be able to provide a corrected Proof of Service to the Court, truthfully reflecting a timely October 2019 service date for the Motion to Strike, as well as a declaration of counsel reflecting and explaining how it was that the Proof of Service accompanying the motion did not accurately reflect the correct service date, the Court will grant the motion.

Pursuant to Code of Civil Procedure section 2023.010(d) and (g), misuses of the discovery process include failing to respond or to submit to an authorized method of discovery, and disobeying a court order to provide discovery. Pursuant to Code of Civil Procedure section 2023.030(d)(1), to the extent authorized by the chapter governing any particular discovery method, the court, after notice to the affected party, and after opportunity for hearing, may impose a terminating sanction by, among other possible orders, an order striking out the pleadings of any party engaging in the misuse of the discovery process. The chapter governing depositions authorizes the imposition of a terminating sanction against a party who fails to obey an order compelling attendance and testimony at a deposition. (Code Civ. Proc., § 2025.450, subd. (h).)

Mr. Cogan was ordered by this Court to appear for deposition prior to October 11, 2019. The People properly noticed his deposition for October 8, and provided Mr. Cogan with the opportunity to suggest an alternate date, should he not be available on October 8. Mr. Cogan did not object to the Notice of Deposition, or advise of any unavailability on that date. He failed to appear for or submit to the deposition, in violation of this Court’s order compelling such an appearance. He has failed to respond to the Motion to Strike. Assuming that the Court is provided with a corrected proof of timely service of the motion, the Court can infer from Mr. Cogan’s failure to appear for the deposition, and his failure to respond to the motion, that his violation of the Court’s order compelling the deposition was willful. Consequently, and again assuming that this Court is provided with evidence that the current motion was properly and timely served upon Mr. Cogan, through his counsel, the motion to strike his Claim Opposing Forfeiture will be granted.