Oct 01, 2022
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TENTATIVE RULINGS                                    
LAW & MOTION CALENDAR         
Wednesday, September 28, 2022, 3:00 p.m.         
Courtroom 19 (Vacant Dept.) – Hon. William Barry covering
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1.         SCV-259837, London v. Citibank, N.A.

Due to limitations on Court resources, this matter is CONTINUED to November 2, 2022 at 3:00 pm in Department 19. No further briefing is allowed.
 
  
2.         SCV-268046, Mangrum v. Ghoreishi
 
Plaintiff’s Motion to Compel further answers to form interrogatories (“FIs”), special interrogatories (“SIs”), requests for production of documents (“RPODs”), and requests for admission (“RFAs”) against Defendant Kohan Group (“Kohan”) under Code of Civil Procedure (“CCP”) §§ 2030.300, 2031.310, and 2033.290.
 
RFJN of the Complaint – granted but only as to the contents of the Complaint, not the truth of the alleged matter.
 
Discussion
             
Plaintiff served Kohan with the discovery in question on January 6, 2022. After a series of extensions, a final extension was provided to March 8, 2022. As of March 8, 2022, Kohan had served no response. Kohan eventually did serve unverified responses peppered with objections on March 25, 2022. Kohan filed no opposition to this motion.
 
Kohan’s responses were untimely based on the stipulated deadline of the parties. As such, all objections were waived (CCP §§ 2030.290, 2031.300, 2033.280). Therefore, these objections do not serve as responses. Kohan’s limited substantive responses are also not legal responses, as they are unverified. In fact, no responses to SIs were served at all. 
 
Many of Kohan’s contentions that it lacks adequate information to admit or deny RFAs are also unavailing.  See, e.g. RFA ¶¶ 5.  The Court would expect that future responses will make a more diligent effort to provide admissions that evidence an effort that “reasonable inquiry concerning the matter in the particular request has been made”.  CCP § 2033.220(c). Similarly, any contentions that expert testimony is required are unavailing, as claims that such matters fall within the purview of expert testimony is not a defense to request for admission. Chodos v. Superior Court for Los Angeles County (1963) 215 Cal.App.2d 318, 323.
 
Similarly, Kohan’s answers to the FIs are insufficient.  Where a “responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”  CCP §2030.220(c). Naked assertions that the information requested in an interrogatory are “(u)nknown at this time”  (see, e.g., FI ¶¶ 311.2, 311.3, 311.4, etc.) are insufficient to show that the necessary effort was undertaken to respond substantively to the request.  Kohan evinces no such effort here.  Therefore, the responses to interrogatories are substantively inadequate.
 
Sanctions - CCP §2033.290(d) (relating to requests for admission), CCP § 2030.300(d) (relating to interrogatories), and CCP § 2031.310(h) (relating to requests for production of documents) each provide that a monetary sanction “shall” be imposed against the party losing a motion to compel further responses unless the court finds “substantial justification” for that party’s position or other circumstances making sanctions “unjust.” Plaintiff has submitted evidence that Kohan’s counsel bears some responsibility for the tardiness of response.  See Herrera Declaration ¶ 11, Exhibit I. The Court notes that Kohan has not filed any opposition to the Motion or to the request for sanctions.
 
Plaintiff seeks $2,700, representing attorney work of nine hours for the motion, the meet and confer efforts and attending the hearing on this motion at $300/hr. Herrera Declaration, ¶ 14. The Court finds that a total of nine hours at the rate of $300/hr is reasonable and appropriate, for a total sanctions award in the amount of $2,700. Kohan and/or its attorney are to pay a total of $2,700 to Plaintiff within 30 days of this Order.
 
Conclusion
 
Plaintiff’s motion will be GRANTED. Kohan is ordered to provide objection free, verified, code compliant responses within 30 days of notice of this Order. Kohan and/or its attorney are to pay a total of $2,700 to Plaintiff within 30 days of this Order.
 
Plaintiff shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
 
 
3.         SCV-268172, Steadfast Insurance Company v. Johnson
           
This matter comes on calendar for plaintiff’s unopposed CCP section 473(b) motion to set aside the January 6, 2022 dismissal. The Court interprets the motion as requesting mandatory set aside relief based upon the “attorney affidavit of fault” provision of CCP section 473(b). 
 
In this case, an OSC was issued on October 14, 2021 stating that the case would be dismissed if no proof of service regarding the summons/complaint were on file by January 6, 2022. A tentative ruling was issued prior to the January 6, 2022 hearing indicating that the case would be dismissed by the Court unless a party to the action requests a hearing. No request for a hearing was made.
 
On January 6, 2022, an attorney (Vivian Lerch) appeared for plaintiff to argue the tentative ruling on behalf of plaintiff, but she was not allowed to argue the matter due to the lack of a timely request for oral argument.
 
In support of this Motion to Set the Dismissal Aside, Mr. Schwarz’s declaration states that, after the tentative ruling was posted, he (as plaintiff’s counsel) mistakenly failed to call the Court to request oral argument to challenge the tentative ruling. Mr. Schwarz asserts (impliedly) that, despite the fact that there were no proofs of service on file on January 6, 2022 regarding service of the summons/complaint, the trial court would have refrained from dismissing the case had counsel (Vivian Lerch) been able to explain to the trial court that one of the defendants (Ms. Jeter) had been served on January 3, 2022 and that additional efforts were being made to serve the other defendant. Mr. Schwarz’s declaration further states that the other defendant (Mr. Johnson) was served on January 9, 2022 (three days after the case was dismissed).
 
CCP section 473(b) states that “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, or neglect, vacate” any resulting default or, default judgment, or dismissal. (Emphasis added.)
 
The Court probably would have refrained from dismissing the case had counsel been allowed to be heard at the June 6, 2022 hearing to explain the status of service on the two defendants. Therefore, this Court finds that attorney Schwarz’s failure to request oral argument to challenge the tentative ruling caused the dismissal. 
 
This Motion is timely. The requested relief is mandatory. CCP section 473(b). The Motion is GRANTED. 
 
Moving party shall prepare an order for signature consistent with this ruling.
 
4&5.    SCV-270601, Mahrt v. Cornerstone, et al.
 
 Motions by specially appearing Defendant JP Morgan Chase Bank (Chase Bank) to Quash Process and to Set Aside the Default.
 
Discussion
 
The Complaint alleges that on August 31, 2021, plaintiffs caused a payment of $2.6 million to be transferred from Exchange Bank to an account held by a third party in Chase Bank’s branch in Plainfield, IL. The money was transferred in connection with plaintiffs’ intended purchase of real property from that third party. 
            
Christian Bowie, a branch manager at Chase Bank in Plainfield, was served in person with the Complaint and a Summons on May 2, 2022.   See Exhibits “A” (POS) and “E” (Summons) to the Hamilton Declaration. It does not appear that Plaintiffs have attempted to serve Chase bank in any other manner. Chase Bank did not file a response; its default was entered on June 24, 2022.
           
Chase Bank has moved for an Order quashing the service on the grounds that it was not served in accordance with controlling law, and to set the default aside pursuant to CCP 473(d)(void act) and 473(b)(excusable neglect).
           
This is a California lawsuit. Service of process must be accomplished in accordance with its laws, and Plaintiffs cite no authority for the proposition that Illinois law can cure service that is defective under California law. 
 
At the threshold, the court notes that the Summons served upon Mr. Bowie, Exhibit “E”, is defective upon its face because a box in paragraph 3 indicating on whose behalf Mr. Bowie was being served was not checked. The Opposition papers do not appear to dispute this fact. This deficiency bars the taking of the defendant corporation’s default. CCP 412.30. For that reason alone, the Motion to Quash should be granted.
 
A Plaintiff has a number of options when it comes to effectuating service of process. Here, Plaintiffs chose CCP 416.10 (“Service on Corporation”). This statute appears under Article 4 (“Persons Upon Whom Summons May Be Served”). Specifically, Plaintiffs argue that CCP 416.10(b) validates the service in this case. (“A Summons may be served on a corporation by delivering … (b) To … a general manager, . . . ”). 
 
Was Mr. Bowie, who was served as a “Branch Manager” per the Proof of Service, Exhibit “A”, a general manager for purposes of CCP 416.10(b)? Plaintiffs rely upon Gibble v. Car-Lene Research, Inc. (1998) 67 Cal. App. 4th 295, in support of their argument that he is. However, the facts of that case are very different from that presented in this case. In Gibble, the defendant corporation was a suspended California corporation, not a foreign one. Even though it had continued to operate its California business for years after the suspension, defendant had no designated agent for service of process. And, Coddington, the “general manager” acted as if she were indeed a corporate officer or general manager. None of those facts apply here. 
 
The court also notes that the Gibble court’s analysis relied upon Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal. 3d 773, a decision whose allowance for substantial compliance with service of process requirements is called into question by subsequent changes in the governing statutes. See Bishop v. Silva (1991) 234 Cal App. 3d 1317, 1323. 
 
Chase Bank has cited to persuasive cases holding that a general manager is one who has actual control of the direction and operation of the business. Mr. Bowie is not a general manger for purposes of CCP 416.10(b). 
 
CCP 413.10 addresses how the process is to be served, not upon whom it may be served. That statute does not help Plaintiffs’ case in this matter.
 
Decision
 
The Motion to Quash should be granted. The Motion to Set the Default Aside should also be granted as a void act (CCP 473(d), or because the response to the defective service of process by Chase Bank’s employees and agents was excusable, even if negligent (CCP 473(b). 
  
           
 
**This is the end of the Tentative Rulings.***

 

 
 

 

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