Hasso v. J.S.B. Fin. Corp.
| Decision Date | 03 August 2011 |
| Docket Number | E049854 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ALAN HASSO, Plaintiff and Respondent, v. J.S.B. FINANCIAL CORPORATION et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of San Bernardino County. Martin A. Hildreth, Judge. ) Affirmed.
Wagner & Pelayes, Brandi L. Harper and Dennis E. Wagner for Defendants and Appellants.
Law Office of Michael Creamer and Michael Creamer for Plaintiff and Respondent.
INTRODUCTION
On January 18, 2005, plaintiff and respondent Alan Hasso filed a complaint alleging three causes of action against defendants and respondents J.S.B. Financial Corporation (JSB) and OzCorp. (OZ) (collectively "defendants"), as well as other defendants, for fraudulent conveyance of real property, conspiracy to commit a fraudulent conveyance, and negligence.1 Hasso requested compensatory damages in the amount of $3,000,000. Plaintiff alleged that he was a judgment creditor of defendant D. Robert Johnson, who conspired to fraudulently convey a 60-acre parcel of land in Loma Linda that was subject to plaintiff's judgment, to JSB and OZ in order to bar plaintiff's recovery of the judgment. Over the ensuing four- and one-half years, the parties engaged in an extensive, contentious, and seemingly interminable, discovery war. This eventually resulted in terminating sanctions against both defendants, the striking of defendants' answers, and entry of judgment by default against defendants. JSB moved the court for an order setting aside the striking of its answer, which the court denied. Defendants later moved for a new "trial," which the court likewise denied.
On appeal, defendants raise three issues: (1) the court abused its discretion in ordering terminating sanctions against them; (2) the court abused its discretion in denying JSB's motion for relief from default; and (3) the court abused its discretion in denying defendants' motion for a new trial. Finding no error, we affirm the judgment in full.
FACTUAL AND PROCEDURAL HISTORY2
On May 16, 2005, plaintiff filed a motion against JSB for an order deeming admitted plaintiff's first set of requests for admissions and for monetary sanctions.3Plaintiff had propounded the requests on February 3, 2005. On April 7, 2005, plaintiff's counsel sent a letter to JSB as a reminder that the responses were outstanding. At the time of the filing of the motion, JSB had not responded to the requests. On June 10, 2005, JSB filed its opposition to the motion; the opposition included, as an exhibit, JSB's responses to the requests for admissions. At the hearing on the motion, on Monday, June 13, 2005, the court noted that the opposition was "[c]learly late." The court indicated thatit had five discovery motions on its calendar, and urged the parties to attempt to resolve the discovery issues—the motions were continued to June 27, 2005.
On June 20, 2005, plaintiff filed his reply to JSB's opposition to plaintiff's motion regarding requests for admissions, set 1. Plaintiff noted that he had served the requests on February 3, 2005; that the responses were due on or before March 5, 2005; and that request for entry of default had been entered on March 7, 2005. It was not until after the default was set aside pursuant to the parties' stipulation on May 11, 2005, that plaintiff filed the discovery motions; JSB did not respond to the discovery requests until the eve of the initial hearing and its responses were unverified.
At the hearing on the motions held on June 27, 2005, the court reiterated that it still had five discovery motions pending. The court noted that the responses to the requests for admissions were unverified and that "Nonverified responses are the equivalent of no responses." Counsel for plaintiff stated that he not received verified responses. The court granted sanctions in the amount of $437 pursuant to Code of Civil Procedure section 2033,4 and directed that verified responses be presented within 10 days. The court granted plaintiff's motion to compel responses to plaintiff's first demand for production of documents, ordered JSB to respond within 10 days, and awarded plaintiff sanctions in the amount of $234.5
Nevertheless, apparently in deference to JSB's contention that all discovery timelines had been reset once the default was set aside, the court set aside its rulings and continued "If it's not complied with, verifications, answers, responses, I will hear the motions and I will impose sanctions."
On July 7, 2005, plaintiff filed motions to compel responses to its first set of special interrogatories, and first set of form interrogatories, propounded to JSB. On July 21, 2005, the court continued the hearing of the discovery motions pending a determination of whether Johnson's bankruptcy proceedings stayed proceedings in the current matter. On August 24, 2005, the court tentatively ruled that it no longer had jurisdiction to act in the matter; the bankruptcy court had exclusive jurisdiction over the case. The court noted that five discovery motions had been calendared for that date and seven additional discovery motions had been made in the interim. The court vacated the scheduled hearings on the discovery motions and noted, "I want to advise you if this case remains in state court and we proceed with it, I am going to require you to either agree or the Court will make findings and will order a referee for discovery matters, because right now as we stand, we haven't even begun anything and we have 12 discovery motions on calendar."
On November 14, 2005, the court noted that the bankruptcy trustee had filed for removal of the case to the federal court; the bankruptcy judge granted the request. OnDecember 20, 2005, the case was dismissed without prejudice as to the entire action. On August 4, 2006, the bankruptcy court remanded the matter back to state court. On August 14, 2006, the court set aside its dismissal order of December 20, 2005.
On November 1, 2006, plaintiff requested the appointment of a discovery referee. At a hearing on April 20, 2007, plaintiff's counsel noted defendants had continued to fail to respond to discovery requests, contending discovery had been stayed until the appointment of a discovery referee. The court noted that it had Nonetheless, after receiving no objection from any party, the court appointed Judge Tully Seymour as discovery referee.
On June 5, 2007, plaintiff served a motion to compel the deposition of the "person most knowledgeable" from JSB. Plaintiff had served notice on May 8, 2007, that the deposition would be taken on May 22, 2007; however, no one on behalf of JSB appeared. Also on June 5, 2007, Judge Seymour served his report on seven discovery motions filed by plaintiff that he heard on May 18, 2007. Counsel for JSB filed opposition to only two of the seven motions, stating that "he had been having difficulty in communicating with his client and that he intended to make a motion to withdraw as counsel."
The first motion concerned plaintiff's efforts to compel responses to his first demand for production of documents, propounded to JSB on February 3, 2005; JSB had yet to respond. The motion was filed May 16, 2005. JSB filed an opposition contending that the discovery request was premature because the stipulation to set aside defendants' default reset the discovery timelines. Judge Seymour concluded that the stipulation didnot invalidate the demand for production's service of process or affect its timelines; the demand was valid and JSB had failed to respond. Thus, Judge Seymour recommended the motion be granted, that JSB be ordered to respond without objection within 20 days of the court's order, and that sanctions against JSB be awarded in the amount of $836.30.
The second motion concerned plaintiff's request for an order deeming admitted his first set of requests for admissions propounded on JSB on February 3, 2005. The motion was filed on May 16, 2005. JSB served an unverified response on June 8, 2005; on June 30, 2005, JSB provided a verification. JSB filed an opposition, again contending that the discovery request was premature because the stipulation to set aside defendants' default reset the discovery timelines. Judge Seymour recommended a sanction award in the amount of $837.
The third motion involved plaintiff's request to compel responses to his first set of form interrogatories propounded upon JSB on February 3, 2005. Plaintiff sent JSB a follow-up letter on June 28, 2005, noting the tardiness of the responses, but JSB still failed to respond. JSB filed no opposition to the motion. Judge Seymour recommended the motion be granted, that JSB be ordered to respond without objection within 20 days of the court's order, and that sanctions against JSB be awarded in the amount of $637.
The fourth motion requested responses to plaintiff's first set of special interrogatories propounded to JSB on March 2, 2005; plaintiff had yet to receive a response. JSB filed no opposition. Judge Seymour recommended the court grant the motion,...
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