Mack v. CitiMortgage, Inc. CA2/6

Filed 9/22/15 Mack v. CitiMortgage, Inc. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

KEITH MARTIN MACK, 2d Civil No. B260058 (Super. Ct. No. 56-2012-00413175-CU- Plaintiff and Appellant, OR-VTA) (Ventura County) v.

CITIMORTGAGE, INC.,

Defendant and Respondent.

Keith Martin Mack appeals from an order dismissing his wrongful foreclosure action based on the willful failure to comply with two discovery orders. 1 (Code Civ. Proc., § 2023.030, subd. (d)(3).) Appellant also appeals from an order denying reconsideration of his peremptory challenge to the trial judge (§ 170.6). We affirm the terminating sanctions order. The appeal from the order denying reconsideration is dismissed because it is not an appealable order. (§ 1008, subd. (g).) Procedural History In 2011, appellant's house was sold at a trustee's sale after appellant defaulted on a $147,000 promissory note secured by a deed of trust. Appellant sued

1 All statutory references are to the Code of Civil Procedure.

the lender's assignee, CitiMortgage Inc. (CMI), on quiet title, contract, tort, and statutory theories. On November 14, 2013, CMI served four discovery requests: a request for admissions, a request for production of documents, form interrogatories, and special interrogatories. Appellant failed to respond to the discovery and was mailed a meet and confer letter. On January 10, 2014, appellant served written objections to the request for admissions and request for production of documents. CMI filed a motion to compel discovery on the form and special interrogatories, and a separate motion to compel further responses on the request for documents and request for admissions. On March 5, 2014, Ventura County Superior Court Judge Vincent O'Neill ordered appellant to respond, without objection, to the discovery by March 25, 2014. Appellant served written objections but never responded to the discovery. CMI brought a motion for terminating sanctions and a motion to compel further discovery responses. On July 1, 2014, Judge O'Neill granted the motion to compel further discovery responses. Appellant was ordered to respond to the discovery, without objection, by July 21, 2014 and pay $1,755 sanctions. Appellant again failed to respond to the discovery. On August 21, 2014, CMI filed a motion for terminating sanctions or, in the alternative, evidentiary sanctions. Before the hearing on the motion, appellant filed an affidavit to disqualify Judge O'Neill pursuant to section 170.6. Ventura County Superior Court Judge Frederick Bysshe denied the peremptory challenge because it was untimely. The motion for terminating sanctions was argued on September 23, 2014. Judge O'Neill granted the motion, finding that appellant willfully failed to comply with the March 5, 2014 and July 1, 2014 discovery orders. Appellant was ordered to pay $1,625 sanctions. Before the judgment of dismissal was entered, appellant filed a motion for reconsideration on his section 170.6. affidavit to disqualify Judge O'Neill. (§