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LAW & MOTION CALENDAR
Wednesday, May 24, 2017, 3:00 p.m.
Courtroom 19 – Hon. William C. Harrison for the Hon. Allan D. Hardcastle
3055 Cleveland Avenue, Santa Rosa
CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. Please contact CourtCall directly at (888) 882-6878.
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6730, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, May 23, 2017. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
1. SCV-253343, GMAC Mortgage, LLC v. E*Trade Bank
Defendant Sylvain E. Barrielle’s (“Defendant”) moves for an order entering judgment on the pleadings as to the First Amended Complaint (“FAC”) of HSBC Bank USA, National Association as Trustee for Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-OA5 (“Plaintiff”) and the causes of action stated therein for Quiet Title; Declaratory Relief; and Reformation of the parties Deed of Trust. Defendant brings this motion under Code of Civil Procedure section 338(d) and on the grounds that Plaintiff’s complaint was filed after the expiration of the three year statute of limitations. Alternatively, Defendant requests that the Court set a trial on Defendant’s statute of limitations defense before the trial on the merits of the underlying case, pursuant to Code of Civil Procedure section 597.
Plaintiff opposes the motion based on the statute of limitations and argues that the statute was tolled during the automatic stay imposed by Federal Bankruptcy Statutes11 U.S.C. §362 and 11 U.S.C. §108(c) and the related California Code of Civil Procedure section 356 and therefore, Plaintiff’s action was filed within the three-year limitations period. Additionally, Plaintiff argues that the three-year statute of limitations should be equitably tolled by the Court during the three month period between the time that Plaintiff and Defendant entered into a loan modification agreement and the time of Defendant’s subsequent failure to perform under that agreement. Plaintiff also opposes the bifurcation of the trial on the grounds that Defendant waived any right to have the statute of limitations defense heard prior the merits of the underlying case.
Defendant’s Request for Judicial Notice of Exhibits A-E under Evidence Code section 452(d) is GRANTED and his Request for Judicial Notice of Exhibit F under Evidence Code section 452(a) in Support of his Reply is also GRANTED. Plaintiff’s Request for Judicial Notice of Exhibits A-C under Evidence Code sections 452(d) and 452(h) is GRANTED. Defendant’s objection to Plaintiff’s Exhibit B is OVERRULED.
Defendant’s motion for judgment on the pleadings is GRANTED, with leave to amend.
1. General Rules Governing Motions for Judgment on the Pleadings
A motion for judgment on the pleadings is analogous to a general demurrer. (Code Civ. Proc. § 438; see also, Smiley v. Citibank (1995) 11 Cal.4th 138, 145–146; Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227; County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal. App.4th 21, 32.) A motion for judgment on the pleadings may be made by any party to the action or by the court sua sponte. (Code Civ. Proc. § 438(b)(2); see Camacho v. Automobile Club of Southern Calif. (2006) 142 Cal.App.4th 1394, 1396.) A plaintiff may move for judgment on the pleadings on the grounds that the complaint or cross-complaint states facts sufficient to constitute a cause of action and “the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc. § 438(c).) “A demurrer [or motion for judgment on the pleadings] can be sustained based on the statute of limitations or other limitations period only if the facts alleged in the complaint, or matters of which judicial notice is taken, disclose ‘clearly and affirmatively’ that the cause of action is barred.” (City of Indus. v. City of Fillmore (2011) 198 Cal.App.4th 191, 207, citing Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324.)
2. Statute of Limitations
The parties agree that this case is a “reformation” action to correct the legal description of the property stated in the subject deed of trust and as such, the action is governed by the three year state of limitation in Code of Civil Procedure section 338(d) [three year statute for “[a]n action for relief on the ground of fraud or mistake.”].) Even though the Legislature has not established a specific statute of limitations for a cause of action for quiet title, courts have held that the “underlying theory of relief,” which in this case is reformation based on mistake, determines the applicable statute of limitations. (See, Salazar v. Thomas (2015) 236 Cal.App.4th 467, 476; see also, Ankoanda v. Walker-Smith (1996) 44 Cal.App.4t 610, 612.)
A cause of action commences and the statute accrues when the aggrieved party discovers the facts constituting the mistake serving as the ground for relief. (Code Civ. Proc., § 338(d); see also, Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442, 1470.) A plaintiff must prove facts showing lack of knowledge, lack of means of obtaining knowledge, and when the mistake was discovered. (Western Title Guar. Co. v. Sacramento & San Joaquin Drainage Dist. (1965) 235 Cal.App.2d 815, 825.)
Here, the parties do not dispute that the three-year limitations period under section 338(d) applies to Plaintiff’s causes of action and do not appear to dispute that Plaintiff first discovered the mistaken legal description in the deed of trust on or about July 29, 2009. (See, Motion at 1-5; see also, Opp. 3:4-5.) Even if Plaintiff did dispute this date, it is bound by the statement its original verified complaint wherein Plaintiff admits that “Plaintiff discovered the erroneous legal description on or about July 29, 2009…” (Plaintiff’s Original Complaint at ¶19, 4:19-20.) Notwithstanding the fact that Plaintiff omitted this allegation from its FAC, Plaintiff is bound by its prior judicial admission. (See, Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 168-169 [Allegations in a prior verified complaint are considered judicial admissions.].) Thus, for the purposes of this motion, the Court will apply the three year statute of limitations commencing upon Plaintiff’s discovery of the mistaken deed on July 29, 2009. Therefore, under ordinary circumstances, the statute of limitations would have expired on July 29, 2012 and Plaintiff’s original complaint, which was not filed until March 11, 2013, would be untimely.
However, Plaintiff contends that the statute of limitations was tolled for three discrete periods of time that render the complaint timely. First, Plaintiffs argue that the limitations period was legally tolled when Barbara W. Barrielle filed for bankruptcy on February 9, 2011 until the notice was served on August 29, 2011 that the bankruptcy was discharged. Defendant concedes this tolling period in his reply. Second, Plaintiff argues that the limitations period was tolled for an additional 30 days after the notice was served under 11 U.S.C. §108(c). Defendant disputes this argument. Finally, Plaintiff argues that the limitations period should be equitably tolled during the three months between February 2010 when parties entered into a loan modification agreement and February 9, 2011, when Defendants subsequently breached that agreement. Defendant also disputes this argument. According to Plaintiff, if these three periods are applied to toll the statute of limitations, the complaint is timely.
3. Tolling of the Statute of Limitations
A. Legal Tolling of the Statute During the Pendency of the Bankruptcy Action
The filing of a bankruptcy petition operates as an automatic stay of the commencement or continuation of a judicial proceeding against the debtor that was or could have been commenced before the commencement of the bankruptcy proceeding. (11 U.S.C. § 362(a)(1).) The automatic stay provision “provides for a broad stay of litigation, lien enforcement and other actions judicial or otherwise that are attempts to enforce or to collect prepetition claims. It also stays a wide range of actions that would affect or interfere with property of the estate, property of the debtor or property in custody of the estate.” (Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 373.) The automatic stay continues until the bankruptcy case is either closed or dismissed, or until a discharge is granted or denied, whichever comes first. (11 U.S.C. § 362(c).)
In California, Code of Civil Procedure section 356 acts to stay the running of state law statute of limitations when a bankruptcy action is filed. Specifically, section 356 provides that “[when] the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.” (Code Civ. Proc. § 356.) Case law recognizes “[a] bankruptcy stay [is] a ‘statutory prohibition’ within the meaning of Code of Civil Procedure section 356,” and thus “the period of time of the automatic stay should not be counted as part of limitation time.” (Inco Dev. Corp. v. Superior Court (2005) 131 Cal.App.4th 1014, 1019, citing Schumacher v. Worcester (1997) 55 Cal.App.4th 376, 380 [“The suspension of a statute of limitations for a certain period is, in effect ‘time taken out,’ for that period and adds the same period of time to the limitation time provided in the statute.”], accord Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 376-378 [bankruptcy stay has been held to be a “statutory prohibition” within the meaning of section 356, so that the period of time that the automatic bankruptcy stay is in effect is not counted as part of the limitations time.].)
Here, Barbara Barrielle filed for Chapter 13 bankruptcy on February 9, 2011, initiating the automatic stay provision of 11 U.S.C. §362 and tolling the statute of limitations under Code of Civil Procedure section 356. Mrs. Barrielle’s bankruptcy was terminated on August 28, 2011. As Plaintiff points out, August 28, 2011 was a Sunday, so the effective date of the bankruptcy termination was August 29, 2011 and because the notice of termination was served by mail, the stay was extended for another three days under Bankruptcy Rule 9006. Accordingly, the statute of limitations on Plaintiff’s action was tolled for a total of 203 days, or until February 17, 2013. Plaintiff argues that the fact that Mrs. Barrielle filed for bankruptcy, and not Mr. Barrielle, is immaterial because as husband and wife, Mr. and Mrs. Barrielle were co-debtors and therefore, the automatic stay applied to both of them. (See, 11 U.S.C. §102(2); 11 U.S.C. §362(a)(3); and 11 U.S.C. §101(8); see also, Griffin v. Allstate Ins. Co. (C.D. 1996) 920 F.Supp.127, 130.) Even so, Plaintiff’s complaint, which was filed on March 11, 2013, would be untimely.
B. Additional Thirty Days Under 11 U.S.C. §108(c)
Plaintiff argues that the statute should have been tolled for an additional thirty days under 11 U.S.C. §108(c). Section 108(c) provides, in pertinent part, that “if applicable nonbankruptcy law ... fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, ... such period does not expire until the later of: (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362 ... of this title ... with respect to such claim.” (11 U.S.C. § 108(c).) The purpose of section 108(c) is to extend “applicable time deadlines ... for 30 days after notice of the termination of a bankruptcy stay, if such deadline would have fallen on an earlier date.” (Aslanidis v. U.S. Lines, Inc. (2nd Cir. 1993) 7 F.3d 1067, 1073.) “There is no language in either in the Automatic Stay provision or the Extension of Time provision of the Bankruptcy Code that suspends a statute of limitations from running ... The extension of time provision merely provides an extra 30 days to file a claim if the claims’ limitation period expired before the automatic stay was lifted.” (Grotting v. Hudson Shipbuilders, Inc. (W.D.Wash.1988) 85 B.R. 568, 569.) Thus, contrary to Plaintiff’s argument, the extension of time addressed in section 11 U.S.C. §108(c) does not generally toll the statute of limitations but allows only for addition time in the specific circumstances where the statute expired during the automatic bankruptcy stay or immediately after that stay expired. Accordingly, 11 U.S.C. §108(c) does not apply in this case and does not extend the statute of limitations for Plaintiff’s claim.
C. Equitable Tolling of the Statute of Limitations.
Plaintiff argues that the statute of limitations should be equitably tolled during the three month period between Plaintiff and Defendant entered into a loan modification agreement in November 2010 and Defendant’s subsequent failure to perform under that agreement in February 2011. Equitable tolling “is a rule of procedure adopted by the courts” that is “designed to prevent unjust and technical forfeitures of the right to a trial on the merits…” (Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 745, citing McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99; see also, Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 659 [equitable tolling is a doctrine “which operates independently of the literal wording of the Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.”].)
The doctrine of equitable tolling does not implicate any “ordinary common-law rights cognizable in courts of law,” and is solely an equitable doctrine within the sound discretion of the trial court. (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 9; see also, Hopkins, supra, 225 Cal.App.4th at 745.) “[T]he effect of equitable tolling is that the limitations period stops running during the tolling event, and begins to run again only when the tolling event has concluded. As a consequence, the tolled interval, no matter when it took place, is tacked onto the end of the limitations period, thus extending the deadline for suit by the entire length of time during which the tolling event previously occurred.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 369.) The three elements necessary for equitable tolling to apply are (1) timely notice of the claim to the defendant; (2) the defendant must not be prejudiced by the application of equitable tolling; and (3) reasonable and good faith conduct by the claimant, i.e., the situation must be the product of forces beyond claimant’s control and claimant must have diligently pursued its claim. (San Pablo Bay Pipeline Co., LLC v. Public Utilities Comm’n (2015) 243 Cal.App.4th 295, 316; see also, Hull v. Central Pathology Serv. Med. Clinic (1994) 28 Cal.App.4th 1328, 1335; Addison v. State of California (1978) 21 Cal.3d 313, 316–317.)
Here, Plaintiff’s FAC does not state sufficient facts to warrant equitable tolling and has failed to articulate how the facts alleged in the FAC fall within the “carefully considered situations” in which the doctrine of equitable tolling is applied. (Lantzy, supra, 31 Cal.4th at 370.) Although Defendant may have had timely notice of the claim, there is no indication that Plaintiff acted with reasonable or good faith conduct, or that it diligently pursued its claim. Additionally, Plaintiff has not alleged that it was seeking an alternative remedy in a different forum; that the earlier action was wrongly dismissed; that Defendant fraudulently concealed the claims; that this is a claim against an insurer; or that Plaintiff could not bring this action until determination of a related case on appeal. (See, Situations Justifying Equitable Tolling, Cal. Prac. Guide Civ. Pro. Before Tr. Stat. of Limitations Ch. 6-B, §§6:26, 6:78, 6:80, 6:95, 6:100.) Finally, Plaintiff has failed to allege any facts indicating the Defendant induced Plaintiff’s delay in bringing these claims or why the parties’ loan modification agreement would relieve Plaintiff of its obligation to reform the deed within the applicable statute of limitations. Therefore, equitable tolling of the statute of limitations does not apply here.
Accordingly, because Plaintiff’s action in its current form is clearly founded on the theory of reformation, the action is barred by the three-year statute of limitations in section 338(d) and Defendant’s motion for judgment on the pleadings is granted, with leave to amend. Plaintiff shall have ten (10) days from the Court’s final order on this motion to file a Second Amended Complaint. Defendant’s alternative request bifurcate the statute of limitations issue is moot.
Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
2. SCV-256887, Fowler v. DriversDoor, Inc.
Brian Singler (“Defendant”) moves to set aside the default judgment entered against him on April 3, 2017 by Austin Fowler (“Plaintiff”) in the amount of $5,800,000. Defendant brings this motion pursuant to Code of Civil Procedure section 473(b) and on the grounds that Defendant’s failure to timely answer Plaintiff’s fourth amended complaint was the result of counsel’s surprise, mistake, inadvertence, or excusable neglect. Plaintiff opposes the motion and requests an award of attorney’s fees and costs of $4,625.00 for preparing Plaintiff’s statement of damages, preparing the request for entry of default; reviewing Defendant’s motion to set aside the default; researching code and case law and preparing his opposition to the motion; and an anticipated 5 additional hours to travel to and argue the motion.
Plaintiff’s Request for Judicial Notice of Exhibits 1-5 is GRANTED. Defendant’s Motion to Set Aside the Entry of Default is GRANTED. Plaintiff’s request for attorney’s fees and costs is DENIED.
Section 473(b) provides for both discretionary and mandatory relief from an entry of default. (See, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838–839; see also, Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927.)
Under the discretionary relief provision, the code states as follows:
“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”
(Code Civ. Proc. §473(b).)
A party seeking relief under the discretionary provision of section 473(b) based on an attorney’s mistake, inadvertence, surprise, or excusable neglect “must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.” (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.) “In determining whether the attorney’s mistake or inadvertence was excusable, ‘the court inquires whether a reasonably prudent person under the same or similar circumstances’ might have made the same error.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) “In other words, the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’” (Ibid.)
Under the mandatory provision, the Code states as follows:
“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
(Code Civ. Proc. §473(b).)
The mandatory or “attorney fault” provision of section 473 requires that the motion be accompanied by “an attorney’s sworn affidavit” attesting to the attorney’s mistake, inadvertence, surprise, or neglect. (Ibid; see also, Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615-616.) “A mea culpa declaration by an attorney establishing that a default, default judgment, or dismissal was entered against his or her client as a result of attorney neglect deprives the trial court of discretion to deny relief, even without a showing that the neglect was excusable.” (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.) “The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect…[b]ut the range of adverse litigation results from which relief can be granted is narrower.” (Leader, supra, 89 Cal.App.4th at p. 616.) Specifically, the mandatory relief provision of section 473(b) only extends to vacating a default which will result in the entry of a default judgment; a default judgment; or an entered dismissal. (See, Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259; see also, Leader, supra, 89 Cal.App.4th at 615.) However, “if the prerequisites for the application of the mandatory provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.” (Leader, supra, 89 Cal.App.4th at 612.) “The purpose of this provision [is] to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257, accord, Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 226.)
The code further provides: “[t]he court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., § 473(b).) Finally, the Code provides that whenever the Court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the Court may, in its discretion, impose various penalties against the offending party. (Code Civ. Proc. § 473(c)(1).)
In this case, Defendant’s motion to set aside the default appears to rely on both the mandatory and discretionary relief provisions of the statute. Although Defendant’s attorney includes a declaration of fault with his motion, such a declaration does not necessarily invoke the mandatory provision of section 473. (See, Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124.) Here, the Court finds that Defendant’s failure to timely file his answer to Plaintiff’s fourth amended complaint was the result of mistake, inadvertence, and/or excusable neglect and therefore, the Court grants Defendant’s motion under the discretionary provision of the statute. Defendant shall file his responsive pleading no later than May 26, 2017.
Furthermore, because the Court is granting the motion under the discretionary provision of the statute, the Court is not required to award Plaintiff his attorney’s fees and costs and on that basis, Plaintiff’s request for fees and costs is DENIED. (See, Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823 [where relied is granted under the discretionary provision, the Court has discretion to award or deny attorney’s fees and costs.].)
Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with California Rule of Court 3.1312.
3. SCV-257866, Vargas v. Cunningham Dairy
This case is on calendar for Defendants’ motion to compel responses to form interrogatories and requests for production of documents from Plaintiffs. Defendants bring this motion pursuant to Code of Civil Procedure sections 2030.290 and 2031.300 and on the grounds that Plaintiffs have failed to respond to Defendant’s written discovery. Defendants also request an award of monetary sanctions in the amount of $935.00 against Plaintiffs. Plaintiffs have not filed an opposition to the motion and have not opposed Defendants’ request for sanctions.
For good cause shown, Defendant’s motion is GRANTED and Defendant’s request for sanctions is also GRANTED.
A. Motion to Compel Responses to Form Interrogatories
Defendants move to compel Plaintiffs to provide responses to form interrogatories, set one. Defendants bring this motion pursuant to Code of Civil Procedure section 2030.290 and on the grounds that Plaintiffs have failed to serve any responses to the subject interrogatories. Code of Civil Procedure section 2030.290 provides in relevant part that if a party to whom interrogatories are directed fails to serve timely responses, the responding party waives all objections, including those based on privilege and work product protection, and the propounding party may move for an order compelling responses. (Code Civ. Proc. § 2030.290(a)-(b); see also, Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) All that the moving party needs to show in its motion is that the interrogatories were properly served, the time to respond has expired, and that no responses have been provided. (See, Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)
Here, Defendants have sufficiently demonstrated that they properly served form interrogatories to Plaintiffs on February 2, 2017. Defendants has also demonstrated that despite their meet and confers efforts, Plaintiffs have failed to provide any responses to the subject interrogatories. Accordingly, Defendants’ motion is GRANTED and Plaintiffs are ordered to provide verified responses to Defendants’ form interrogatories, set one, without objections, within ten (10) days of the Court’s final ruling on this motion.
B. Motion to Compel Responses to Requests for Production of Document
Defendants also move to compel Plaintiffs to provide responses to requests for production of documents, set one. Defendants bring this motion under Code of Civil Procedure section 2031.300 and on the grounds that Plaintiffs have failed to provide any responses to the respective requests. Code of Civil Procedure section 2031.300 provides that if a party fails to serve timely responses to requests for production of documents, the responding party waives all objections, including those based on privilege and work product and “[t]he party making the demand may move for an order compelling [a] response to the demand.” (Code Civ. Proc. § 2031.300(a)-(b).) When the motion to compel seeks a response to document requests, as opposed to further responses, no showing of “good cause” is required. (See, Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 8:1487, p. 8H-34.)
Here, Defendants have sufficiently demonstrated that despite their meet and confer efforts, Plaintiffs have failed to provide any responses to the document requests. Accordingly, Defendants’ motion to compel is GRANTED and Plaintiffs are ordered to provide verified responses to the requests for production of documents, without objections, within ten (10) days of the Court’s final ruling on this motion.
C. Request for Monetary Sanctions
Under Code of Civil Procedure section 2023.030, the Court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process…pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030(a).) Misuses of the discovery process include, but are not limited to: failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc. § 2023.010(d).) “If a monetary sanction is authorized…the court shall impose that sanction 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. § 2023.030(a).)
Specifically with respect to interrogatories, the Code provides that “[t]he court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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. § 2030.290(c).) Additionally, the California Rules of Court provide “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. R. Ct. 3.1348.)
In this case, Defendants request a total award of $935.00 in monetary sanctions against Plaintiff for its attorney’s fees and costs to bring these three motions. Defendant bases this request on 3 hours spent to prepare the motion and an additional 2 hours anticipated to review an opposition and attend the hearing, billed at $175 per hour. Defendants also seek $60 in costs for the filing fee. Although the Court finds that monetary sanctions are warranted in this case, the Court limits its award to $585, (which includes 3 hours spent on the motion and the $60 filing fee) based on the fact that Plaintiffs have not opposed the motion. Accordingly, Plaintiffs are ordered to pay $585 to Defendants within ten (10) days of the Court’s final ruling on this motion.
Defendants’ counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
4. SCV-258943, Kral v. Fernandez
DROPPED from calendar at the request of counsel for moving party.
5. SCV-259423, Alasad v. Sonoma County Junior College District
CONTINUED to Wed., Aug. 2, 2017, 3:00 p.m. pursuant to the Ruling After Law & Motion Hearing of April 26, 2017.
6. SCV-260061, Loudagin v. Graton Economic Development Authority
CONTINUED to June 14, 2017 at the request of counsel for moving party on May 16; DROPPED from June 14 calendar pursuant to Notice of Taking Defendant’s Motion to Quash Service of Complaint and to Dismiss for Lack of Subject Matter Jurisdiction Off Calendar filed May 22.
7. SCV-260244, Larrew v. Beverly Health and Rehabilitation Services, Inc.
This matter is on calendar for Beverly Health and Rehabilitation Services, Inc.’s (“Defendant’) Petition to Compel Arbitration with Susan Larrew (“Plaintiff”). Defendant brings this Petition pursuant to Code of Civil Procedure sections 1281.2, et seq. and on the grounds that the parties entered into a written agreement to arbitrate “any and all claims, disputes, and controversies” arising between the parties shall be resolved by binding arbitration. Plaintiff has not filed an opposition to this Petition.
Under the FAA, “[a] written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2; see also, Peleg v. Neiman Marcus Group (2012) 204 Cal.App.4th 1425, 1438.) Under California law, “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) [t]he right to compel arbitration has been waived by the petitioner; or (b) [g]rounds exist for the revocation of the agreement.” (Code Civ. Proc. §§ 1281.2, et seq.) “This section establishes the ‘fundamental policy’ of California’s arbitration scheme: that arbitration agreements will be enforced in accordance with their terms.” (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1073, citing to Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 836, fn. 10.) “Through the statute’s enactment, the Legislature ... expressed a strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.” (Ibid, citing to Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) “Thus, California law, like federal law, establishes “a presumption in favor of arbitrability.” (Ibid, citing to Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971.)
In the present case, Defendant seeks to compel arbitration with Plaintiff pursuant to an arbitration agreement executed by the parties. Specifically, the agreement states in part that:
“[A]ny and all claims, disputes, and controversies (hereafter collectively referred to as a “claim or collectively “claims”) arising out of, or in connection with, or relating in any way to the Admission Agreement, any service or health care provided by [Defendant] to [Plaintiff], and/or any claim about the validity, interpretation, construction, performance, and enforcement of this Agreement shall be resolved exclusively by binding arbitration brought only on behalf of [Plaintiff], and not on behalf of any official, any other person, or any class of people.”
(See, Defendant’s Motion at Ex. A, Art. 2.)
Thus, based on Defendant’s Petition to Compel Arbitration and the evidence submitted in support thereof, including the attached agreement to arbitrate, as well as counsel’s representations that Plaintiff has either refused to arbitrate and/or failed to respond to Defendant’s demand, Defendant’s Petition is GRANTED and this case shall be referred to arbitration, under the procedures set out in detail in the arbitration agreement.
Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
8. SCV-260475, In Re: J. Gonzales
CONTINUED to 6/14/17 at the request of counsel for moving party.