MCELHANEY vs U.S. BANK NATIONAL ASSOCIATION

23CV009343: MCELHANEY vs U.S. BANK NATIONAL ASSOCIATION 09/05/2024 Hearing on Motion to Compel Further Discovery Responses to Form Interrogatories and Special Interrogatories in Department 54

Tentative Ruling

Defendant Selene Finance, LP’s (“Defendant”) motion to compel further responses from Plaintiff in pro per Roddie McElhaney (“Plaintiff”) to Defendant’s Form Interrogatories, Set One, and Special Interrogatories, Set One is ruled upon as follows.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact Plaintiff and advise of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact Plaintiff prior to hearing, moving counsel is ordered to appear at the hearing by Zoom or in person.

Defendant is admonished that, effective July 1, 2024, Local Rule 2.31(E) requires that when simultaneously filing multiple discovery motions in the same case with the same hearing date, each motion shall be filed as a separate document and a separate filing fee paid for each. The Court notes that here, Defendant’s motion consists of two discovery motions. Failure to comply with this rule in the future may result in the motions being dropped.

This action involves allegations of an attempted wrongful foreclosure of Plaintiff’s home. Plaintiff alleges that she refinanced her mortgage in 2003. In 2011, an entity known as Ocwen Loan Servicing (“Ocwen”) took over the servicing of Plaintiff’s mortgage and attempted to foreclose, resulting in Plaintiff filing an action in 2014 to stop the foreclosure. Plaintiff alleges that the attempted foreclosure was based on accounting discrepancies. Plaintiff further alleges that during discovery in the prior action, Ocwen produced records showing that it had fabricated documents to initiate the foreclosure.

Plaintiff alleges that Defendant is using the same fabricated documents to attempt to foreclose once again. Plaintiff’s Complaint includes four causes of action described as follows: (1) no standing to foreclose; (2) statute of limitations; (3) violation of Civil Code section 2924 et seq.; and (4) quiet title.

Defendant served the subject discovery on March 8, 2024. Plaintiff served her responses some time in early May of 2024 after receiving an extension to May 1, 2024 to provide responses. The exact date is not clear because Defendant has not produced the responses themselves in their moving papers, but Defendant’s counsel declares that his office received the responses in the mail on May 8, 2024. (Ramos Decl., ¶ 6.) Upon receipt of the responses, Defendant’s counsel emailed Plaintiff to meet and confer and requested further responses by May 21, 2024. (Ramos Decl., ¶ 7, Exh. 3.)

On June 10, 2024, Defendant’s counsel sent a follow up email. (Ramos Decl., ¶ 8, Exh. 3.) On June 12, 2024, Defendant’s counsel left Plaintiff a voicemail and followed that up with another email. (Ramos Decl., ¶¶ 9-10, Exh. 3.) It does not appear Plaintiff responded by the time this motion was filed on June 14, 2024. After the motion was filed and served, Plaintiff served further responses to some of the interrogatories at issue in this motion on July 31, 2024. (McElhaney Decl., ¶ 10, Exh. 4.) The Court expresses no opinion as to the sufficiency of the

23CV009343: MCELHANEY vs U.S. BANK NATIONAL ASSOCIATION 09/05/2024 Hearing on Motion to Compel Further Discovery Responses to Form Interrogatories and Special Interrogatories in Department 54

further responses.

Defendant now moves to compel further responses as to nearly all of the special interrogatories and Form Interrogatory No. 17.1. For the reasons stated below, Defendant’s motion is DENIED.

As Plaintiff points out in her opposition, this case is currently classified as a limited civil case. Discovery in a limited civil case is “permitted only to the extent provided by” Code of Civil Procedure sections 94 and 95. (Code Civ. Proc. § 94.) Under section 94, written discovery is limited to “[a]ny combination of 35” interrogatories (with no subparts), requests for production of documents, or requests for admissions. (Code Civ. Proc. § 94(a)(1)-(3).) Form interrogatories count against the combined limit of 35. (See Code Civ. Proc. § 94(a)(1) [limit of 35 includes interrogatories “under Chapter 13 (commencing with Section 2030.010),” which applies to both form and special interrogatories].) Additional discovery in a limited civil case is permitted only on noticed motion or upon stipulation of the parties. (Code Civ. Proc. § 95.)

Here, as noted above, Defendant served 100 special interrogatories. (Ramos Decl., Exh. 2.) Defendant also served 44 form interrogatories. (Ramos Decl., Exh. 1.) However, Defendant’s form interrogatories were drafted using Judicial Council Form DISC-001. This form is designed for unlimited civil cases and is not permitted in limited civil cases because the interrogatories contain subparts. (See DISC-001 Sec. 2(a), Instructions to the Asking Party.) Thus, when considering the subparts, the total number of form interrogatories served is considerably higher than 44.

Plaintiff also indicates that Defendant served 46 requests for admission and some number of requests for production of documents. (McElhaney Decl., ¶ 10.) Thus, Defendant has served far more than 35 combined interrogatories, requests for production of documents, and requests for admissions, but Defendant has not moved to conduct additional discovery under Code of Civil Procedure section 95, and there is no indication that Plaintiff has stipulated to additional discovery.

Accordingly, Defendant’s motion is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV009343: MCELHANEY vs U.S. BANK NATIONAL ASSOCIATION 09/05/2024 Hearing on Motion to Compel Further Discovery Responses to Form Interrogatories and Special Interrogatories in Department 54

hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

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A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.