This case was last updated from Los Angeles County Superior Courts on 09/29/2020 at 07:37:22 (UTC).

AMIRAH BEHAAR VS. BAYVIEW LOAN SERVICING, LLC., ET AL

Case Summary

On 02/06/2018 AMIRAH BEHAAR filed a Property - Foreclosure lawsuit against BAYVIEW LOAN SERVICING, LLC . This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are RUPERT A. BYRDSONG, ELAINE W. MANDEL, FRANK J. JOHNSON, MICHAEL J. CONVEY, THERESA M. TRABER and PAUL A. BACIGALUPO. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6839

  • Filing Date:

    02/06/2018

  • Case Status:

    Other

  • Case Type:

    Property - Foreclosure

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RUPERT A. BYRDSONG

ELAINE W. MANDEL

FRANK J. JOHNSON

MICHAEL J. CONVEY

THERESA M. TRABER

PAUL A. BACIGALUPO

 

Party Details

Plaintiff

BEHAAR AMIRAH

Defendants

SELECT PORTFOLIO SERVICING INC.

DOES 1-20

THE WOLF FIRM

BAYVIEW LOAN SERVICING LLC

THE BANK OF NEW YORK MELLON

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT INC. ALTERNATIVE LOAN TRUST 2006-OA21 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-OA21 AN UNKNOWN BUSINESS ENTITY

Other

THE BANK OF NEW YORK

Not Classified By Court

HAROUNI LAW GROUP

Attorney/Law Firm Details

Plaintiff Attorneys

HAROUNI KAIVAN

LANDVER ALINA

Defendant Attorneys

HOWSON CHRISTINE ELIZABETH

RAMOS JAMES J.

RAMOS JAMES JOSE

 

Court Documents

Notice of Ruling

9/16/2020: Notice of Ruling

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (MANDATORY SETTLEMENT CONFERENCE (MSC)) OF 08/07/2020

8/7/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (MANDATORY SETTLEMENT CONFERENCE (MSC)) OF 08/07/2020

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL COR...)

6/1/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL COR...)

Notice Re: Continuance of Hearing and Order

4/7/2020: Notice Re: Continuance of Hearing and Order

Notice - NOTICE NOTICE OF CONTINUANCE OF MOTION

4/8/2020: Notice - NOTICE NOTICE OF CONTINUANCE OF MOTION

Notice - NOTICE NOTICE OF CONTINUANCE OF MOTION

4/2/2020: Notice - NOTICE NOTICE OF CONTINUANCE OF MOTION

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL CORRESPONDING DATES; DECLARATION OF JAMES J. RAMOS

12/18/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL CORRESPONDING DATES; DECLARATION OF JAMES J. RAMOS

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO HAVE REQUEST FOR ADMISSIONS DEEMED ADMITTED; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF AMIRAH BEHAAR

10/1/2019: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO HAVE REQUEST FOR ADMISSIONS DEEMED ADMITTED; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF AMIRAH BEHAAR

Motion to Deem RFA's Admitted

6/25/2019: Motion to Deem RFA's Admitted

Minute Order - Minute Order (Trial Setting Conference)

2/5/2019: Minute Order - Minute Order (Trial Setting Conference)

Notice of Ruling

10/25/2018: Notice of Ruling

Complaint

2/6/2018: Complaint

Proof of Service of Summons and Complaint

2/14/2018: Proof of Service of Summons and Complaint

Proof of Service of Summons and Complaint

2/14/2018: Proof of Service of Summons and Complaint

Case Management Statement

6/12/2018: Case Management Statement

Minute Order - Minute order entered: 2018-07-03 00:00:00

7/3/2018: Minute Order - Minute order entered: 2018-07-03 00:00:00

Case Management Statement -

10/5/2018: Case Management Statement -

Minute Order -

8/20/2018: Minute Order -

59 More Documents Available

 

Docket Entries

  • 09/21/2020
  • DocketRequest for Dismissal; Filed by Amirah Behaar (Plaintiff)

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  • 09/16/2020
  • Docketat 08:30 AM in Department U, Theresa M. Traber, Presiding; Hearing on Ex Parte Application (to Continue Trial) - Held - Motion Granted

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  • 09/16/2020
  • DocketMinute Order ( (Hearing on Ex Parte Application to Continue Trial)); Filed by Clerk

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  • 09/16/2020
  • DocketNotice of Ruling; Filed by Bayview Loan Servicing, LLC (Defendant); Select Portfolio Servicing, Inc. (Defendant); The Bank of New York Mellon (Defendant)

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  • 09/14/2020
  • DocketEx Parte Application (Ex Parte Application to Continue Trial); Filed by Bayview Loan Servicing, LLC (Defendant); Select Portfolio Servicing, Inc. (Defendant); The Bank of New York Mellon (Defendant)

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  • 08/13/2020
  • Docketat 09:00 AM in Department B, Paul A. Bacigalupo, Presiding; Mandatory Settlement Conference (MSC) - Not Held - Clerical Error

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  • 08/07/2020
  • Docketat 09:00 AM in Department U, Theresa M. Traber, Presiding; Non-Appearance Case Review (- MSC in B) - Not Held - Vacated by Court

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  • 08/07/2020
  • Docketat 09:00 AM in Department B, Paul A. Bacigalupo, Presiding; Mandatory Settlement Conference (MSC) - Not Held - Advanced and Vacated

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  • 08/07/2020
  • DocketMinute Order ( (Mandatory Settlement Conference (MSC))); Filed by Clerk

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  • 08/07/2020
  • DocketCertificate of Mailing for ((Mandatory Settlement Conference (MSC)) of 08/07/2020); Filed by Clerk

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85 More Docket Entries
  • 06/12/2018
  • DocketCase Management Statement; Filed by Bayview Loan Servicing, LLC (Defendant)

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  • 03/09/2018
  • DocketDeclaration; Filed by The Wolf Firm (Defendant)

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  • 03/01/2018
  • DocketProof of Service of Summons and Complaint; Filed by Amirah Behaar (Plaintiff)

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  • 02/14/2018
  • DocketProof of Service of Summons and Complaint; Filed by Amirah Behaar (Plaintiff)

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  • 02/14/2018
  • DocketProof of Service of Summons and Complaint; Filed by Amirah Behaar (Plaintiff)

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  • 02/14/2018
  • DocketProof of Service of Summons and Complaint; Filed by Amirah Behaar (Plaintiff)

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  • 02/06/2018
  • DocketSummons; Filed by Amirah Behaar (Plaintiff)

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  • 02/06/2018
  • DocketCivil Case Cover Sheet; Filed by Amirah Behaar (Plaintiff)

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  • 02/06/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/06/2018
  • DocketComplaint; Filed by Amirah Behaar (Plaintiff)

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Tentative Rulings

Case Number: LC106839    Hearing Date: July 17, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

AMIRAH BEHAAR, an individual,

Plaintiff,

vs.

BAYVIEW LOAN SERVICING, LLC, a limited liability company, SELECT PORTFOLIO SERVICING, INC., a Utah corporation, THE WOLF FIRM, A LAW CORPORATION, a California corporation, THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-OA21, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OA21, an unknown business entity, and DOES 1 through 20,

Defendants.

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CASE NO: LC106839

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR TERMINATING SANCTIONS OR, ALTERNATIVELY, FOR ISSUE AND/OR EVIDENCE SANCTIONS & MONETARY SANCTIONS

Dept. U

8:30 a.m.

July 17, 2020

Amirah Behaar (Plaintiff) filed a complaint against Bayview Loan Servicing, LLC (Bayview), Select Portfolio Servicing, Inc. (SPS), The Wolf Firm, A Law Corporation, The Bank of New York Mellon FKA The Bank of New York, as Trustee for the certificate holders Cwalt, Inc., Alternative Loan Trust 2006-OA21, Mortgage Pass-Through Certificates, Series 2006-OA21 (New York), , and DOES 1 through 20, alleging: (1) violations of Civil Code sections 2923.5, 2924.11, 2923.7, 2924(a)(6), 2924.9, 2924.10, 2924.17, and 2934a; (2) negligence per se; and (3) violation of Business and Professionals Code section 17200.

On May 20, 2019, Bayview, SPS, and New York (collectively, Defendants) served Form Interrogatories and Special Interrogatories, Request for Production of Documents, and Request for Admissions on Plaintiff. Plaintiff failed to respond to any of these discovery request, requiring Defendants to file a motion to compel her compliance.

The Court granted Defendants’ motion to compel responses to the interrogatories and request for production on September 4, 2019 and awarded $722.50 in sanctions. The Court also ordered Plaintiff to respond to the request for admissions by October 4, 2019 with which Plaintiff complied. The Court entered an order for an additional $331.50 in sanctions on October 3, 2019. Plaintiff also served responses to the interrogatories and request for production on October 3, 2019 but has not remitted the sanctions. Plaintiff has still not responded to Defendants’ request for production.

Defendants found Plaintiff’s responses to the interrogatories insufficient causing it to reach out to Plaintiff about them and their intention to file another motion to compel. Plaintiff failed to respond, forcing Defendants to file a motion to compel. On December 19, 2019, the Court granted Defendants’ motion to compel further responses to the interrogatories and ordered Plaintiff to respond within 30 days and pay $2,239.50 in monetary damages. Plaintiff has not complied with this order either. Plaintiff also failed to appear for her noticed deposition in December 2019.

On March 17, 2020, Defendants filed this motion for terminating sanctions or, alternatively, for issue and/or evidence sanctions and monetary sanctions against Plaintiff. Specifically, Defendants request terminating sanctions either: (1) dismissing the entire action and all parties thereto, or (2) staying further proceedings until Plaintiff obeys the Court’s discovery orders. (Code Civ. Proc., §§ 2023.030(d) & 2030.300(e).)

Alternatively, Defendants request issue and/or evidence sanctions prohibiting Plaintiff from introducing evidence as to: (1) Defendants violation of Civil Code sections 2923.5, 2924.11, 2924.9, 2924.10, 2924.17, and 2934a, or (2) that Defendants owed Plaintiff a duty of care in connection with the loan modification review or the subject loan.

Defendants also request $5,055.00 in monetary sanctions equaling the reasonable expenses and attorneys’ fees they incurred in bringing this motion.

Although the hearing on Defendants’ motion was continued several times to July 17, 2020, Plaintiff never filed opposition to the motion. Nor has she remedied the problems raised by the motion, as she has not complied with the prior discovery orders or paid the sanctions imposed on her.

Discovery Sanctions

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidentiary or monetary sanctions. (Code Civ. Proc., §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)  Ultimate discovery sanctions are justified where there is willful violation of discovery orders, a history of discovery abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Superior Court (1986) 180 Cal.App.3d 701, 707.) 

The following factors may be relevant in deciding whether and which sanctions to impose for disobedience to discovery orders (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796.):

(1) The time that has elapsed since the discovery was served;

(2) Whether the party received extensions of time to answer or respond;

(3) The number of discovery requests and the burden of replying;

(4) The importance of the information sought;

(5) Whether the answering party acted in good faith and with reasonable diligence—i.e., whether he or she was aware of the duty to furnish the requested information and had the ability to do so;

(6) Whether the answers supplied were evasive or incomplete;

(7) The number of questions remaining unanswered;

(8) Whether the unanswered questions sought information that was difficult to obtain;

(9) The existence of prior court orders compelling discovery and the answering party's compliance therewith (Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 Cal.App.4th 373, 379.);

(10) Whether the party was unable to comply with previous discovery orders;

(11) Whether an order allowing more time to respond would enable the responding party to supply the necessary information; and

(12) Whether some sanction short of dismissal or default would be appropriate to the dereliction.

(Deyo v. Kilbourne, supra, 84 Cal.App.3d at 796.)

Pursuant to California Civil Procedure section 2023.030, subdivision (d), the court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

The court may order that designated facts “shall be taken as established” by the party adversely affected by the discovery misuse; or it may prohibit the party who committed such misuse from supporting or opposing designated claims or defenses. (Code Civ. Proc., § 2023.030(b).)

The court may also prohibit the party, or party-affiliated witness, who disobeyed the court order from introducing designated matters in evidence. (Code Civ. Proc., § 2023.030(c); Waicis v. Sup.Ct. (Schwartz) (1990) 226 Cal.App.3d 283, 287.)

Defendants argue that Plaintiff has misused and abused the discovery process through: (1) disobedience of the September order by refusing to produce documents in response to the request for production and failing to pay the sanctions; (2) violation of the October order by failing to pay sanctions; (3) disobedience of the December order by failing to provide supplemental responses to the interrogatories and not paying sanction; and (4) failing to appear for her deposition. Defendants urge terminating sanctions are appropriate because, not only has Plaintiff continually failed to cooperate with discovery, she has also violated three Court orders compelling her compliance. Defendants reason that their due process rights have been violated by spending nearly a year attempting to make Plaintiff engage in discovery only to delay trial and prevent eliciting evidence that might support a dispositive motion.

Here, a year has elapsed since Defendants served its four discovery requests on Plaintiff. Plaintiff’s responses to Defendants’ requests for production, supplemental responses to interrogatories, and $3,293.50 in court-ordered sanctions are outstanding. The Court has issued three orders compelling Plaintiff’s compliance and Plaintiff has not attempted in good faith to comply with Defendants’ discovery requests and, when she has provided responses, they have been insufficient. The information sought in the discovery requests is critical to Defendants’ defense because it concerns the application for foreclosure alternative upon which Plaintiff premises her claims. Plaintiff initiated this suit but has failed to engage in the litigation process by refusing to effectively participate in discovery, including her own deposition.

Defendants have shown that a serious is warranted because Plaintiff has delayed this matter for a year by refusing to respond and disobeying the Court’s previous three discovery orders. Repeated monetary sanctions and Court orders have not compelled Plaintiff to respond, therefore, more serious sanctions are necessitated. Accordingly, the Court issues a stay barring Plaintiff from litigating this matter for six months through January 17, 2021 or until Plaintiff complies with outstanding discovery orders and appears for deposition and orders that if Plaintiff has not complied with all outstanding discovery orders and requests propounded by Defendants, the matter will be dismissed in its entirety based on a declaration from defense counsel reporting Plaintiff’s failure to comply.

Monetary Sanctions

In addition to or in lieu of any other sanction, the court may order the disobedient party or counsel responsible or both to pay the reasonable expenses, including attorney fees, incurred as a result of the failure to obey, including fees on the sanctions motion. (Code Civ. Proc., § 2023.030(a); Marriage of Niklas (1989) 211 Cal.App.3d 28, 37-38.)

Here, Defendants submitted the declaration of their counsel, Cathy Robinson. She declares she spent 4.8 hours preparing the instant motion and an additional 4.2 hours preparing the separate statement in support of it. Robinson anticipates spending another eight hours responding to opposition to this motion and attending the hearing. She states her hourly rate is $295.00, making attorneys’ fee $5,015.00. Defendants also claim the $40.00 fee required for filing this motion. Therefore, Defendants request a total of $5,055.00 in attorneys’ fees and costs.

Robinson’s hourly rate of $295.00 is reasonable based on the work and time involved. The Court finds that it was reasonable for Defendants to expend a total of eight hours in bringing this motion and awards $2,360 in attorney’s fees, plus a $40 filing fee for a total of $2,400 in monetary sanctions.

CONCLUSION

For the foregoing reasons, Defendants’ motion is GRANTED IN PART and DENIED IN PART. The Court issues a stay barring Plaintiff from litigating this matter for six months through January 17, 2021 or until Plaintiff complies with outstanding discovery orders and appears for deposition and orders that if Plaintiff has not complied with all outstanding discovery orders and requests propounded by Defendants, the matter will be dismissed in its entirety based on a declaration from defense counsel reporting under oath Plaintiff’s failure to comply.

Defendants’ motion for monetary sanctions is GRANTED. Plaintiff is ordered to pay a total of $2,400 in monetary sanctions, to be paid to Defendants within 30 days.

Defendants are to provide notice of the Court’s ruling.

DATED: July 17, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court