On 14 March 2014, the motion of plaintiffs Thu Hoang and Dung Truong (“Plaintiffs”) to compel compliance with Plaintiffs’ Request for Production of Documents and for monetary sanctions was argued and submitted. Defendant Bank of America (“Defendant”) filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

This action arises from Defendant’s alleged unlawful conduct concerning a residential mortgage loan for the property located at 4148 Littleworth Way, San Jose, CA 95135. Plaintiffs allege that Defendant began foreclosure proceedings against them on or about October 2011 while Plaintiffs remained current on their monthly loan payments. After Defendant filed a Notice of Default, Defendant stopped accepting Plaintiffs’ payments. Defendant then sold Plaintiffs’ property at a Trustee’s sale in June 2012.

Shortly thereafter, Plaintiffs filed a lawsuit against Defendant in the Superior Court of the County of Santa Clara (Case No. 1-12-CV-228431) to rescind the Trustee’s sale. On or about August 2012, Plaintiffs and Defendant entered into an agreement to rescind the Trustee’s sale and stay the litigation. Plaintiffs allege that, after signing the agreement, Defendants still refused to accept Plaintiffs’ payments. Therefore, Plaintiffs immediately began efforts to retain their home through a loan modification. On 4 October 2012, Plaintiffs’ loan modification was denied. After the denial, Plaintiffs began efforts to reinstate the loan and filed a second lawsuit in the Superior Court of the County of Santa Clara (Case No. 1-12-CV-235351) to stop any further foreclosure proceedings.

On or about 7 January 2013, Plaintiffs received a reinstatement quote from Defendant in the amount of $129,504.19. In response, Plaintiffs filed the present lawsuit (Case No. 1-12-CV-245975). Plaintiffs contend that Defendant overstated the arrearages necessary to reinstate the loan by over $80,000, failed to provide a single point of contact responsible for aiding Plaintiffs in the foreclosure prevention alternative process, and breached the agreement to rescind the Trustee’s sale. In June 2013, this case was consolidated with Case No. 1-12-CV-235351.

Discovery Dispute

On 16 May 2013, Plaintiffs served Request for Production of Documents, Set One (“RPD”), on Defendant. On 10 June 2013, Plaintiffs agreed to extend Defendant’s response deadline to 11 July 2013. On 10 July 2013, Plaintiffs agreed, once again, to extend Defendant’s response deadline to 29 July 2013. On 31 July 2013, defense counsel contacted Plaintiffs’ counsel by telephone and requested a further extension. Plaintiffs’ counsel informed defense counsel that no further extension would be granted and demanded that Defendant serve the responses free from any objections. On 31 July 2013, Defendant served unverified responses to Plaintiffs’ RPD, containing objections. On 14 August 2013, Plaintiffs’ counsel sent a meet and confer letter, informing Defendant that all objections had been waived and requesting objection-free supplemental responses. Defendant served unverified supplemental responses on 20 August 2013. However, the RPD still contained objections. After further meet and confer efforts, Defendant provided additional responses to the RPD on 20 September 2013. Once again, these responses included objections to some of the requests. Despite further meet and confer efforts, Defendant provided no additional responses to the RPD.

Consequently, on 8 November 2013, Plaintiffs filed a motion to compel further responses to RPD Nos. 5, 13, 14, 18 and 19. On 23 December, 2013, the Court granted Plaintiffs’ motion and ordered Defendant to serve responses to the discovery without objections, within 20 days of the date of the filing of the Order.

On 13 January 2014, Defendant served supplemental responses to the RPD and provided approximately 100 pages of documents. On 21 January 2014 and 24 January 2014, Plaintiffs’ counsel sent emails asking defense counsel to confirm that the documents provided on 13 January 2014 constituted all the documents Defendant intended to produce. On 24 January 2014, defense counsel sent an email in reply, confirming that all documents responsive to the RPD had been produced.

On 29 January 2014, Plaintiffs filed this motion to compel compliance with Defendant’s statements of compliance in regards to the RPD and for monetary sanctions. On 21 February 2014, Defendant filed its opposition. Plaintiffs filed their reply on 7 March 2014.

Discussion

I. Motion to Compel Compliance

Plaintiffs move, pursuant to Code of Civil Procedure section 2031.320, to compel compliance with Defendant’s statements of compliance in regards to RPD Nos. 5, 13, 14, 18 and 19. Plaintiffs contend that Defendant did not produce all documents requested. Plaintiffs believe as much because Plaintiffs’ counsel declares that she has received additional responsive documents in other cases involving Defendant. In particular, Plaintiffs seek materials provided to Defendant’s call center representatives, including frequently asked questions, response modules, job aids, reference cards, and conversation guides.

In opposition, Defendant contends that the motion to compel compliance is a disguised motion to compel further RPD, Plaintiffs already have the information they seek, the relief sought by this motion is impermissibly vague, and Defendant has no intelligible way to comply.

A. Nature of Motion

As a threshold matter, Defendant contends that the present motion to compel compliance is a disguised motion to compel further responses to the RPD. Defendant further argues that Plaintiffs have brought this motion pursuant to Code of Civil Procedure section 2031.320 in order to avoid the meet and confer requirement of Code of Civil Procedure section 2031.310. In response, Plaintiffs contend that they are not seeking a supplemental statement of compliance. Instead, they merely request that Defendant produce all responsive documents to the RPD as previously agreed.

Pursuant to Code of Civil Procedure section 2031.320, “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling …, thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320.)

In contrast, under Code of Civil Procedure section 2031.310, a party may move to compel a further response to a demand for inspection, copying, testing, or sampling, if: (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete or evasive, or (3) an objection in the response is without merit or too general. The aim of this motion is to obtain a court order requiring a further response which completely identifies the available, nonprivileged documents and a corresponding agreement to produce them. (See Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903.) Once an adequate response has been obtained, there is no longer a dispute over the right to inspect the documents. (Ibid.) Only at this juncture may a party move to compel compliance under Code of Civil Procedure section 2031.320.

As noted above, on 23 December 2013, the Court ordered Defendant to respond to RPD Nos. 5, 13, 14, 18 and 19, without objections. Under Code of Civil Procedure section 2031.210, a party may respond to a RPD in three ways: (1) by making a statement that the party will comply with the particular demand for inspection, copying, testing, or sampling, (2) by making a representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, and/or (3) by making an objection to the particular demand for inspection, copying, testing, or sampling. Therefore, as the Court ordered Defendant to respond without objections, Defendant’s remaining options were to make a statement that it would comply with the demand for inspection, copying, testing, or sampling, and/or to make a representation that it lacked the ability to comply.

On 13 January 2014, Defendant served its third supplemental response to RPD Nos. 5, 13, 14, 18, and 19 on Plaintiffs, along with roughly 100 pages of documents. Defendant responded to each RPD by referencing a portion of these attached documents. It did not make a representation that it lacked the ability to comply. Accordingly, as Defendant did not object and did not make a representation that it lacked the ability to comply, its response can only be reasonably construed as a statement that it would comply with the RPD. Therefore, the present motion is not a disguised motion to compel further responses to RPD, but a motion to compel compliance brought pursuant to Code of Civil Procedure section 2031.320.

B. Merits of Motion to Compel Compliance

Plaintiffs contend Defendant did not produce all responsive documents as agreed. In opposition, Defendant argues that the motion to compel is impermissibly vague, seeks information Plaintiffs already have, and provides Defendant with no intelligible means to comply.

Defendant’s arguments are without merit. First, Defendant provides no authority for denying a motion pursuant to Code of Civil Procedure section 2031.320 on the ground that the motion is impermissibly vague. Second, Defendant’s contention that Plaintiffs already have access to these documents is more properly characterized as an objection. As Defendant waived all objections by failing to make a timely initial response, this objection is likewise waived. Finally, Defendant may comply with its statements of compliance by providing all responsive documents to the RPD within its possession, custody, or control.

As discussed above, the Court ordered Defendant to make a statement that it would comply with the demand for inspection, copying, testing, or sampling, and/or make a representation that it lacked the ability to comply. As Defendant did not make a representation that it lacked the ability to comply with the demand or a particular item or category of item, Plaintiffs reasonably construed Defendant’s responses to “[p] lease see” certain documents as a statement that Defendant would fully comply with each demand. Therefore, Plaintiffs are entitled to all documents responsive to the RPD to the extent the documents are within Defendant’s possession, custody or control. The court will therefore consider the merits of the motion.

RPD No. 5 requested policies, procedures, and instructions to employees regarding the manner of giving notice of a default. Defendant responded, “Please see BANA 001674-001682.” This document consists of a nine-page training manual, providing instructions to employees regarding notices of intent to foreclose. RPD No. 13 requested policies, procedures, and instructions to employees on how to handle borrowers seeking loan modifications. Defendant responded, “Please see BANA 001732-001748.” The document consists of a seventeen-page procedure for customer relationship managers to assist borrowers with the loan modification process.

RPD No. 14 requested policies, procedures, and instructions to employees on how to handle borrowers in default. Defendant responded, “Please see BANA 001683-001762.” The documents produced include a manual for servicing an account in an early delinquency status, a customer relationship manager standard greetings and closures conversation guide, a customer relationship manager welcome call guide, a single point of contact program procedure, a customer relationship manager modifications desktop, and a procedure outlining the process by which associates initiate or receive correspondence from customers.

RPD Nos. 18 and 19 requested all documents that reflect Defendant’s communications with Sunk-O Investment Corporation regarding Plaintiffs’ property and Plaintiffs. Defendant responded, “Please see BANA 001763-001787.” These documents include Trustee Sale order comments and a series of emails between the representatives of Defendant and Sunk-O Investment Corporation.

Plaintiffs contend that Defendant has withheld a number of documents responsive to the RPD. Plaintiffs provide the declaration of their counsel, Sarah Adelaars, in support of the motion. She declares, “The Mellen Law Firm has litigated against Bank of America in other cases over the same issues which exist in this case. As a result of requesting these same materials, Plaintiffs’ counsel is aware of the existence of many training policies and manuals within Defendant Bank of America which are relevant to the case at hand and which have been produced, by Defendant’s law firm, SEVERSON & WERSON, in the past in response to these exact discovery requests. I have even specifically identified the types of documents Plaintiffs are seeking, which Plaintiffs know to exist and which Plaintiffs know are in the custody and control of SEVERSON & WERSON, in my meet and confer letter to Defendant Bank of America.” (Adelaars Decl., ¶ 17.)

The portion of Plaintiffs’ counsel’s last meet and confer letter concerning the missing documents reads, in pertinent part, “A response to these requests would include, but is not limited to: [¶] – frequently asked questions that Bank of America provides its call center representatives [¶] – training manuals regarding foreclosure related law that Bank of America provides to its call center representatives [¶] – response modules provided to call center representatives [¶] – job aids provided to call center representatives [¶] – reference cards provided to call center representatives [¶] – conversation guides provided to call center representatives.” (Adelaars Decl., Exhibit H.)

In opposition, defense counsel, Clayton Gaddis, declares that he believes he produced all documents responsive to the RPD, but is reviewing other cases involving the Mellen Law Firm to determine if additional responsive documents exist. (Gaddis Decl., ¶¶ 2, 7.)

After reviewing the evidence provided, the Court cannot reach a definitive conclusion as to whether all responsive documents have been produced. Therefore, to the extent it is Defendant’s position that all documents in its possession, custody or control have been produced, it is ordered to serve on Plaintiffs a verified statement to that effect. Alternatively, if Defendant agrees that all responsive documents have not been produced, it is ordered to produce the documents in a code-compliant manner.

In an attempt to be helpful,

Should this matter proceed to a hearing, this Court will ask defense counsel about the manner in which records of prior and subsequent lawsuits and the identity opposing counsel are maintained by Defendant.

II. Monetary Sanctions

Plaintiffs make a code-compliant request for monetary sanctions against Defendant in the amount of $2,745. The Court shall impose a monetary sanction “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.320, subd. (b).) Although the motion is nominally granted, the uncertainty in the record as to whether Defendant has or has not fully complied with the RPD makes the imposition of monetary sanctions unjust. Therefore, sanctions are not warranted.

Conclusion and Order

The motion to compel compliance with Defendant’s statements of compliance in regards to the RPD is GRANTED as follows: Within 20 calendar days of the filing of this Order, Defendant shall either (1) serve on Plaintiffs a verified statement that all documents responsive to the RPD in its possession, custody or control have been produced, or (2) shall produce all responsive documents in its possession, custody or control that have not yet been produced.

Plaintiffs’ request for monetary sanctions against Defendant is DENIED.