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PATRICIA H. LYON, (State Bar No. 126761)
MARY ELLMANN TANG, (State Bar No. 154340)
KEVIN E. FUSCH (State Bar No. 255877)
FRENCH LYON TANG
A Professional Corporation
1990 N. California Blvd., Suite 300
Walnut Creek, CA 94596
Telephone: (415) 597-7800
Attorneys for Defendant
EAST WEST BANK
SUPERIOR COURT OF UNLIMITED JURSIDICTION
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
MAHNAZ KHAZEN, ) Case No. 18CV328954
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) MEMORANDUM OF POINTS AND
Plaintiff, ) AUTHORITIES IN SUPPORT OF
) MOTION TO COMPEL RESPONSES
v. ) TO DISCOVERY AND FOR
) SANCTIONS
EAST WEST BANK, DOES 1-20, inclusive.
Hearing:
Date: May 21, 2019
Time: 9:00 a.m.
Department: 9
Location: 191 North First Street
San Jose, CA
Action Filed: 05/25/18
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Defendant EAST WEST BANK (the “Bank”) respectfully submits the following
memorandum of points and authorities in support of its motion to compel responses to
discovery.
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MEMORANDUM OF POINTS AND AUTHORITIESL INTRODUCTION
Plaintiff Mahnaz Khazen (“Plaintiff”) has failed to respond to discovery that was due in
October 2018. East West Bank has given multiple extensions and been assured that responses
were coming, but each time Plaintiff failed to respond. Over three months after they were due,
East West Bank has no choice but to file this motion to compel responses. Since Plaintiff has
failed to respond to discovery responses, this motion must be granted and monetary sanctions
awarded against the Plaintiff.
IL. STATEMENT OF FACTS
Defendant East West Bank made a loan to Plaintiff in 2004 for $735,000.00. The loan
matured on October 1, 2017. Over four months later, Plaintiff paid off the loan, but disputed the
amount due and the Bank refunded her $9,442.01. Not satisfied, Plaintiff initiated this suit on
May 25, 2018, alleging that the Bank misapplied payments it received and wrongfully delayed
applying a CD account she pledged as collateral.
East West Bank propounded discovery on Plaintiff on September 12, 2018 consisting of
Form Interrogatories, Set One; Special Interrogatories, Set One; and Demand for Inspection, Set
One. The parties agreed to extend the time to respond to October 22, 2018 due to a vacation by
Plaintiffs counsel.
Later, the time to respond was again extended to November 27, 2018. On December 13,
2018, Plaintiff’s counsel indicated they were in the process of finalizing responses. On January
10, 2019, with still no responses forthcoming, counsel for East West Bank gave until January 31,
2019, over three and a half months since the original due date. As of the date of the filing of this
motion, responses had still not been received.
Il. LEGAL ANALYSIS
A. Since No Responses to the Discovery Propounded Have Been Received, the Court Must
Grant This Motion to Compel.
If a party to whom interrogatories were directed fails to serve a timely response, the
propounding party may move for an order compelling responses and for a monetary sanction. CCP
§ 2030.290(b); see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007)
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MEMORANDUM OF POINTS AND AUTHORITIESCem nN DH FF Bw NY
YN Y YN YN NN YD we ee Be Be Be Be we eRe
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148 Cal.App.4th 390, 404. All that need be shown in the moving papers is that a set of
interrogatories was properly served on the opposing party, that the time to respond has expired,
and that no response of any kind has been served. See Leach v. Sup.Ct. (Markum) (1980) 111
Cal.App.3d 902, 905-906. No separate statement is required. See CRC 3.1345(b).
The moving party is not required to show a “reasonable and good faith attempt” to resolve
the matter informally with opposing counsel before filing the motion. CCP § 2030.290; Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at 411.
There is no time limit for the motion where no responses have been served. Jd. at 410-411.
The same is true of the inspection demands. See CCP § 2031.300.
Here, Form Interrogatories, Special Interrogatories, and an Inspection Demand were
served, the time to respond has expired, and no response has been received. As such, the motion
must be granted.
B. Monetary Sanctions Are Mandatory Where No Responses Are Made.
The court “shall” impose a monetary sanction against the losing party on a motion to
compel. CCP § 2030290(c) [interrogatories]; CCP § 2031.300(c) [inspection demand]. The court
is authorized to award as sanctions the moving party's reasonable expenses including attorney fees
on the motion to compel, “unless it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction unjust.” CCP §
2023.030(a). “Reasonable expenses” include the time moving party's counsel spent in research
and preparation of the motion and court time in connection with the motion. See Ghanooni v.
Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.
Here, the Bank incurred attorney’s fees and costs in the amount of $652.50, consisting of a
$60 filing fee ba in attorney’s fees,
Dated: February (, 2019 FRENCH LYON TAN /
A Professional or 1
By:
KEVIN-E. FUSCH
Attorneys for Defendant,
EAST WEST BANK
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MEMORANDUM OF POINTS AND AUTHORITIES
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PATRICIA H. LYON, (State Bar No. 126761) MARY ELLMANN TANG, (State Bar No. 154340) KEVIN E. FUSCH (State Bar No. 255877) FRENCH LYON TANG A Professional Corporation 1990 N. California Blvd., Suite 300 Walnut Creek, CA 94596 Telephone: (415) 597-7800 Attorneys for Defendant EAST WEST BANK SUPERIOR COURT OF UNLIMITED JURSIDICTION STATE OF CALIFORNIA COUNTY OF SANTA CLARA MAHNAZ KHAZEN, ) Case No. 18CV328954 ) ) MEMORANDUM OF POINTS AND Plaintiff, ) AUTHORITIES IN SUPPORT OF ) MOTION TO COMPEL RESPONSES v. ) TO DISCOVERY AND FOR ) SANCTIONS EAST WEST BANK, DOES 1-20, inclusive. Hearing: Date: May 21, 2019 Time: 9:00 a.m. Department: 9 Location: 191 North First Street San Jose, CA Action Filed: 05/25/18 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Defendant EAST WEST BANK (the “Bank”) respectfully submits the following memorandum of points and authorities in support of its motion to compel responses to discovery. -1- MEMORANDUM OF POINTS AND AUTHORITIESL INTRODUCTION Plaintiff Mahnaz Khazen (“Plaintiff”) has failed to respond to discovery that was due in October 2018. East West Bank has given multiple extensions and been assured that responses were coming, but each time Plaintiff failed to respond. Over three months after they were due, East West Bank has no choice but to file this motion to compel responses. Since Plaintiff has failed to respond to discovery responses, this motion must be granted and monetary sanctions awarded against the Plaintiff. IL. STATEMENT OF FACTS Defendant East West Bank made a loan to Plaintiff in 2004 for $735,000.00. The loan matured on October 1, 2017. Over four months later, Plaintiff paid off the loan, but disputed the amount due and the Bank refunded her $9,442.01. Not satisfied, Plaintiff initiated this suit on May 25, 2018, alleging that the Bank misapplied payments it received and wrongfully delayed applying a CD account she pledged as collateral. East West Bank propounded discovery on Plaintiff on September 12, 2018 consisting of Form Interrogatories, Set One; Special Interrogatories, Set One; and Demand for Inspection, Set One. The parties agreed to extend the time to respond to October 22, 2018 due to a vacation by Plaintiffs counsel. Later, the time to respond was again extended to November 27, 2018. On December 13, 2018, Plaintiff’s counsel indicated they were in the process of finalizing responses. On January 10, 2019, with still no responses forthcoming, counsel for East West Bank gave until January 31, 2019, over three and a half months since the original due date. As of the date of the filing of this motion, responses had still not been received. Il. LEGAL ANALYSIS A. Since No Responses to the Discovery Propounded Have Been Received, the Court Must Grant This Motion to Compel. If a party to whom interrogatories were directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP § 2030.290(b); see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 2- MEMORANDUM OF POINTS AND AUTHORITIESCem nN DH FF Bw NY YN Y YN YN NN YD we ee Be Be Be Be we eRe on A A FO NHN F&F SO wMw AKA Aw BF WH KF STS 148 Cal.App.4th 390, 404. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. See Leach v. Sup.Ct. (Markum) (1980) 111 Cal.App.3d 902, 905-906. No separate statement is required. See CRC 3.1345(b). The moving party is not required to show a “reasonable and good faith attempt” to resolve the matter informally with opposing counsel before filing the motion. CCP § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at 411. There is no time limit for the motion where no responses have been served. Jd. at 410-411. The same is true of the inspection demands. See CCP § 2031.300. Here, Form Interrogatories, Special Interrogatories, and an Inspection Demand were served, the time to respond has expired, and no response has been received. As such, the motion must be granted. B. Monetary Sanctions Are Mandatory Where No Responses Are Made. The court “shall” impose a monetary sanction against the losing party on a motion to compel. CCP § 2030290(c) [interrogatories]; CCP § 2031.300(c) [inspection demand]. The court is authorized to award as sanctions the moving party's reasonable expenses including attorney fees on the motion to compel, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP § 2023.030(a). “Reasonable expenses” include the time moving party's counsel spent in research and preparation of the motion and court time in connection with the motion. See Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262. Here, the Bank incurred attorney’s fees and costs in the amount of $652.50, consisting of a $60 filing fee ba in attorney’s fees, Dated: February (, 2019 FRENCH LYON TAN / A Professional or 1 By: KEVIN-E. FUSCH Attorneys for Defendant, EAST WEST BANK -3- MEMORANDUM OF POINTS AND AUTHORITIES