Cheryl Kelmar vs EdFinancial Services LLC

Case Number

24CV04095

Case Type

Hearing Date / Time

Fri, 11/01/2024 - 10:00

Nature of Proceedings

Motion to Compel; Motion to Continue

Tentative Ruling

For the reasons discussed herein, plaintiff Cheryl Kelmar’s motion to compel discovery is denied without prejudice. Plaintiff’s motion to continue hearing on motion to compel discovery is denied.

Background: 

This action commenced on July 17, 2024, by the filing of the judicial counsel form complaint by plaintiff Cheryl Kelmar (“plaintiff”) against defendant EdFinancial Services, LLC (“defendant”) for breach of contract.

By way of her complaint, plaintiff alleges that she has a written agreement with defendant for a student loan she received in 2008 and that defendant asserts that they can charge her twenty percent of plaintiffs gross income on a loan payment for a degree that she cannot use. She alleges that she cannot make a payment of $600 per month and that, due to interest, her student loan debt went from $10,000 to over $50,000.

According to her filed proof of service, plaintiff served defendant with the summons, complaint, civil case cover sheet, affidavit in support of motion to compel discovery, order to compel discovery, motion to compel discovery, and alternative dispute resolution packet, on August 1, 2024, through their registered agent for service of process.

Defendant has not yet filed a responsive pleading to the complaint.

Plaintiff’s current motion to compel discovery was filed on July 30, 2024, prior to the summons being served on defendant. By way of the motion, plaintiff seeks the original loan contract that she signed in 2008.

On September 30, 2024, plaintiff filed a defective proof of service of subpoena directed at defendant. On October 11, 2024, plaintiff filed a second summons and proof of service of summons. By way of the subpoena, plaintiff essentially seeks all documents related to her loan. The date for production is November 1, 2024.

Due to the issues with her subpoenas, plaintiff now also seeks a continuance of the hearing on the motion to compel.

Analysis:

There are fatal issues to plaintiff’s motion to compel.

First, the date for production has not yet passed. The motion is premature and may only be brought if the “deponent fails to answer any question or to produce any document . . .. (Code Civ. Proc., § 2025.480, subd. (a).) There is no indication of whether defendant intends to comply, will file a motion to quash, or take any other action in response to the subpoena.

Secondly, a memorandum in support of a motion “must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).) Plaintiff’s motion is seven paragraphs long and does not comply. There is not concise statement of the law, evidence and arguments relied on, or any discussion of legal authorities relied on. The only legal authority mentioned in the motion is contained in one paragraph and is inapplicable to the present motion. That paragraph states: “Plaintiff requests this evidence of the defendant under Rule 3.1345, §2024.020, §2030.230, and §2031.310 of Code of Civil Procedure because Plaintiff Cheryl Kelmar made a reasonable and good faith attempt to resolve the issues presented by this motion.”

California Rules of Court, rule 3.1345 sets forth the format of discovery motions. Code of Civil Procedure section 2024.020 codifies the pre-trial discovery cutoff. Code of Civil Procedure section 2030.230 pertains to answers to written interrogatories specifying writings from which the answer may be derived or ascertained. Code of Civil Procedure section 2031.310 concerns motions to compel further responses to demands for inspection, copying, testing, or sampling (which is typically what is used to procure documents from a party to an action). None of the authorities cited pertain to subpoenas.

The court will deny plaintiff’s motion without prejudice. As there are significant issues with the motion that would prevent the court from granting it, a continuance of the hearing would be futile. The motion to continue will be denied.