Case Number: BC672040 Hearing Date: May 31, 2018 Dept: 47

Rupert Julien v. The Bank of New York Mellon, fka The Bank of New York, etc., et al.

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED; REQUEST FOR SANCTIONS

MOVING PARTY: Defendants Bank of America, N.A. and The Bank of New York Mellon, fka, The Bank of New York, as Successor Indenture Trustee to JP Morgan Chase Bank, N.A., as Indenture Trustee for the CWABS Revolving Home Equity Loan Trust, Series 2004-L

RESPONDING PARTY(S): No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff seeks to enjoin a non-judicial foreclosure due to Defendants’ failure to contact Plaintiff to assess his financial situation or to explore his foreclosure prevention alternatives.

Defendants Bank of America, N.A. and The Bank of New York Mellon, fka, The Bank of New York, as Successor Indenture Trustee to JP Morgan Chase Bank, N.A., as Indenture Trustee for the CWABS Revolving Home Equity Loan Trust, Series 2004-L moves for an order deeming requests for admission admitted and request for sanctions.

TENTATIVE RULING:

If not mooted prior to the hearing as a result of service of code-complaint responses, Defendants Bank of America, N.A. and The Bank of New York Mellon, fka, The Bank of New York, as Successor Indenture Trustee to JP Morgan Chase Bank, N.A., as Indenture Trustee for the CWABS Revolving Home Equity Loan Trust, Series 2004-L motion to deem admitted requests for admission is GRANTED. Defendant’s request for monetary sanctions against Plaintiff Rupert Julien in connection with the motion to deem matters admitted is DENIED.

DISCUSSION:

Motion To Deem Admitted Requests For Admission

When a party to whom a request for admissions are directed fails to respond, under CCP § 2033.280(b) a party propounding the request for admission may move for an order that the truth of any matters specified in the request be deemed admitted. “The court shall make this order [deem admitted], unless it finds that the party to whom the request for admissions have been directed has served, before the hearing on the motion, a proposed responses to the request for admission that is in substantial compliance with section 2033.220.” CCP § 2033.280(c).

Although Plaintiff served responses to RFAs Nos. 1-12, Plaintiff did not serve any responses to RFAs Nos. 13-19 as of the date of the filing of this motion. See Declaration of

Douglas C. Stastny, ¶¶ 5 – 10. 4. As such, the motion to deem admitted is GRANTED.

In a motion to deem RFAs admitted, “it is mandatory that the court impose a monetary sanction on the party or attorney whose failure to serve a timely response to requests for admission necessitated this motion.” CCP § 2033.280(c). (Emphasis added.)

As to the sanctions request, there is no showing that the plaintiff himself has necessarily done anything wrong. In reading the email correspondence, it clearly appears that his attorney is the person who should be sanctioned, not the plaintiff. The attorney has simply failed to adequately respond to any inquiry except as to essentially state that “we are working on it,” and moreover, the attorney has even failed to respond to this motion. As far as we know, the plaintiff may not even know of the existence of this discovery or the discovery motion.

Unfortunately, the notice of motion seeks only monetary sanctions against “the plaintiff” and not his attorney, and as such, this Court lacks the power to award such sanctions against the attorney, despite the fact that an award of such sanctions are warranted. CCP section 2023.040. [A request for monetary sanction must expressly “identify each person, party, and attorney against whom the sanction is sought.”]

Accordingly, the request for monetary sanctions against the Plaintiff is DENIED.

Defendant/moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: May 31, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court