Cheryl Kelmar vs EdFinancial Services LLC

Case Number

24CV04095

Case Type

Hearing Date / Time

Mon, 01/13/2025 - 10:00

Nature of Proceedings

Motion and Order to Compel Discovery; Motion for a Continuance

Tentative Ruling

Cheryl Kelmar v. EdFinancial Services LLC                        

Case No. 24CV04095        

Hearing Date: January 13, 2025                                                        

HEARING:              (1) Motion And Order To Compel Discovery (filed on July 30, 2024)

                                    (2) Motion For A Continuance

                                    (3) Motion And Order To Compel Discovery (filed on December 11, 2024)                                   

ATTORNEYS:        For Plaintiff Cheryl Kelmar: Self Represented

                                  For Defendant EdFinancial Services LLC: No appearance

TENTATIVE RULING:

(1) The motion for an order to compel discovery filed by plaintiff on July 30, 2024, is denied.

(2) The motion of plaintiff for a continuance is ordered off-calendar.

(3) The motion of plaintiff for an order to compel discovery filed by plaintiff on December 11, 2024, is denied.

Background:

On July 17, 2024, with the approval of the Court pursuant to court order entered on the same date, plaintiff Cheryl Kelmar (Kelmar) filed a complaint against defendant EdFinancial Services LLC (EFS), alleging two causes of action for breach of contract and common counts. The complaint is prepared on a form approved for use by the Judicial Council of California. As alleged or effectively alleged in the complaint:

EFS alleges that it can charge Kelmar 20 percent of Kelmar’s income for a monthly student loan payment. (Compl., ¶ BC-2.) Interest on the student loan at issue has soared causing the initial $10,000 of debt to increase to over $50,000. (Id. at ¶¶ BC-4 & CC-1(b)(6).) Though Kelmar cannot afford a payment of $600 per month, EFS has not provided Kelmar with an alternative monthly payment or allowed Kelmar a more affordable option. (Id. at ¶ BC-4 & CC-1(b)(6).) Kelmar has sent to EFS three certified letters over a span of 2 years requesting that it produce a copy of a student loan contract (the contract) which Kelmar signed in 2008, but EFS has ignored Kelmar’s request. (Id. at ¶ BC-1(a).)

Attached to the complaint is a copy of a letter dated May 21, 2024, from Kelmar directed to EFS in which Kelmar states that this is her third request for the contract. In the complaint, Kelmar prays for damages in the amount of $25,000 plus accrued interest, and for a reasonable monthly payment of $150. (Compl., ¶ 10.)

Court records reflect that on July 30, 2024, Kelmar filed in this action a motion (the July 30 motion) for an order to compel discovery of the original contract giving rise to the student loan at issue, and which Kelmar asserts she entered into with Navient LLC (Navient), and which was transferred to EFS. (July 30 Motion, ¶¶ 1, 3, 5 & 7.) Kelmar separately and concurrently filed an affidavit in support of the July 30 motion declaring that on various occasions, Kelmar has attempted to resolve the student loan issues with EFS, including by sending a certified letter to EFS requesting a copy of the original contract. (Kelmar Affidavit, ¶¶ 1-2.) Kelmar further asserts that EFS has transferred Kelmar to different departments, hung up on Kelmar, and failed to respond to Kelmar’s requests. (Id. at ¶¶ 1 & 3.)

The July 30 motion was set for hearing on November 1, 2024.

Court records further reflect that on August 6, 2024, Kelmar filed a proof of service of the summons, complaint, an alternative dispute resolution packet, and what the Court understands to refer to the July 30 motion and the Kelmar affidavit filed in support of that motion as further described above. The August 6, 2024, proof of service is ostensibly signed by John White (White) under penalty of perjury, and declares that White personally served EFS with the documents described above and in the proof of service by delivering these documents to National Registered Agents, Corporate Service Agency, in Las Vegas, Nevada, on August 1, 2024. (Aug. 6, Proof of Service, ¶¶ 2, 3(b), 4, 5(a), 6(d), 7-8.)

The Court’s records further reflect that on September 30, 2024, Kelmar filed a civil subpoena duces tecum (the September 30 subpoena), ostensibly under the provisions of Code of Civil Procedure section 1985 (see Sept. 30 Subp. at p. 2) and which is prepared on a form adopted for mandatory use by the Judicial Council of California. Though it does not identify the witness to whom it is directed, the September 30 subpoena directs a witness to appear in Department 4 on November 1, 2024, and produce the records described in attachment one to that document. The September 30 subpoena is not signed by the issuing clerk of the Court, and the signature of the process server is dated on December 27, 2024, nearly three months after Kelmar filed that document with the Court.

On October 11, 2024, Kelmar filed a second civil subpoena duces tecum (the October 11 subpoena) also prepared on the same mandatory Judicial Council form described above, and directed to EFS “c/o National Registered Agent”. (Oct. 11, 2024, Subp., p. 1.) The October 11 subpoena directs EFS to appear on November 1, 2024, at 10 a.m. in Department 4 and to produce the records described in attachment 1 to that document. The proof of service attached to the October 11 subpoena was ostensibly signed by James Sturnot, Jr. (Sturnot), on October 9, 2024, and states that the October 11 subpoena was delivered to EFS “c/o National Registered Agent” on October 4, 2024, at an address located in Carson City, Nevada. (Oct. 11, 2024, Subpoena [proof of service].)

Also on October 11, 2024, Kelmar filed a motion (the motion to continue) for a continuance of the hearing on the July 30 motion, on the grounds that when Kelmar “received and submitted her initial subpoena from the Santa Barbara records department, they did not sign it as required. Therefore, it was rejected. Now, even though [Kelmar] has filed and served a correct subpoena on [EFS], it is not timely.” (Motion to Continue at p. 1, ll. 18-21; see also Supporting Kelmar Decl., ¶ 1 [stating that the “subpoena” was not signed by the clerk and therefore rejected].)

On November 4, 2024, the Court entered an order re-assigning this action to this department, and continuing the July 30 motion and motion to continue to January 13, 2025. (Nov. 4, 2024, Order & Notice of Case Re-Assignment; see also Dec. 2, 2024, Minute Order.)

On December 11, 2024, the default of EFS was entered as requested by Kelmar.

Also on December 11, 2024, Kelmar filed a third civil subpoena duces tecum (the December 11 subpoena), also prepared on the same mandatory form and directing EFS “c/o National Registered Agent” to appear on January 13, 2025, in this department and to produce the records described in attachment 1. The proof of service attached to the December 11 subpoena was signed by Sturnot on December 10, 2024, and states that the document was delivered to EFS “c/o National Registered Agent” on December 10, 2024, at an address located in Carson City, Nevada. (Dec. 11, 2024, Subpoena [proof of service].)

In addition, Kelmar filed a motion on December 11, 2024, (the December 11 motion) for an order compelling EFS to produce the records described in the December 11 subpoena. (See Motion at pp. 1-2 [referring to and attaching December 11 subpoena as exhibit A]; p. 3, ¶ 6 [referring to “subpoena served … on December 10, 2024”]; p. 4, ¶ 14 [requesting order that EFS produce document on date reflected in the December 11 subpoena].)

EFS has not filed an opposition to the July 30 motion or the motion to continue, each of which were filed prior to the date the default of EFS was entered.

Analysis:

(1) The Motion To Continue

In the motion to continue, Kelmar does not request a specific date for a continued hearing on the July 30 motion. As further detailed above, the Court continued the hearing on that motion to January 13, 2025. The December 11 subpoena was issued after the continuance and reflects the continued hearing date. Kelmar did not file a request for a different hearing date for the July 30 motion, and did not object to the date selected by the Court for a hearing on that motion. For these reasons, the motion to continue appears to be moot and will be ordered off-calendar.

(2) The July 30 Motion

Code of Civil Procedure section 2019.010 sets forth the methods by which a party may obtain discovery under the Civil Discovery Act (codified at Code of Civil Procedure section 2016.010 et seq.) “Each of these methods of obtaining discovery is governed by one or more code sections providing procedures and restrictions specific to the method of discovery.” (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 738.)

Under the Civil Discovery Act, discovery is intended to be self-executing and “to operate with a minimum of judicial intervention.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.) Though the parties “may modify the statutory discovery procedures by written stipulation … and, unless restricted by the trial court, are free to utilize any of the prescribed discovery methods during the action in any sequence[,]”, the court does not intervene in the discovery process unless a dispute arises. (Ibid.)

The July 30 motion of Kelmar appears to arise from informal oral and written requests for a copy of the contract made to EFS by Kelmar during phone calls and in certified letters sent by Kelmar to EFS. (July 30 Motion, ¶¶ 1-4.) Apart from the phone calls and letters identified in the July 30 motion, Kelmar offers no information or evidence to show that Kelmar formally requested that EFS produce the contract pursuant to any specific or statutorily authorized discovery method or request employed by Kelmar and appropriately directed to or propounded on EFS.

For example, though Kelmar asserts that she requests an order requiring EFS to produce the contract pursuant to the provisions of Code of Civil Procedure sections 2030.230 and 2031.310 (see July 30 Motion, ¶ 6,) Kelmar offers no reasoned factual argument to show that Kelmar propounded appropriate and code compliant interrogatories or inspection demands on EFS pursuant to Code of Civil Procedure sections 2030.010 et seq. or 2031.010 et seq.

Kelmar also fails to set forth, and the Court is unaware of, any legal authority which would permit the Court to order EFS to produce the contract based on informal letters and phone calls made by Kelmar, absent an appropriate, statutorily authorized, and code compliant discovery request.

In addition, though there is no evidence or information to show that Kelmar employed an authorized method of discovery in an effort to obtain the contract from EFS, to the extent Kelmar’s efforts included service of a statutorily authorized request, Kelmar has failed to submit a separate statement in compliance with California Rules of Court, rule 3.1345(a), or to explain with reasoned argument why a separate statement is not required. The failure of Kelmar to submit a conforming separate statement or to demonstrate an exemption from compliance with the separate statement requirement set forth in California Rules of Court, rule 3.1345(a), is further grounds to deny the July 30 motion. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

For all reasons discussed above, the July 30 motion is procedurally and substantively deficient. Therefore, the Court will deny that motion.

(3) The December 11 Motion

In the December 11 motion, Kelmar seeks to compel EFS to produce a copy of the documents described in the December 11 subpoena. The mandatory form used by Kelmar to prepare the December 11 subpoena is generally approved and intended for use in ordering a person to appear and testify at, and to bring specific documents or things, to a trial or court hearing pursuant to Code of Civil Procedure section 1985 et seq. (See Cal. Rules of Court, rule 1.31; , Code Civ. Proc., § 1985 et seq.) It is unclear to the Court why Kelmar prepared the December 11 subpoena on the mandatory form further detailed above considering that there is no trial or other court hearing scheduled in this matter for which the December 11 subpoena would be appropriate or required, and that EFS is a party to this action.

Notwithstanding whether or not the form of the December 11 subpoena is effective or required to secure the attendance of EFS or is an authorized procedure under which Kelmar may seek the production of documents from EFS during discovery, Code of Civil Procedure section 1985 requires that that Kelmar serve with the December 11 subpoena a supporting affidavit “showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.” (Code Civ. Proc., § 1985, subd. (b).)

Further, though service of a subpoena on a party is not required under subdivision (b) of Code of Civil Procedure section 1987, which authorizes service of written notice, the written notice authorized under that section must also “state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control.” (Code Civ. Proc., § 1987, subd. (c).) In addition, any notice motion of the requesting party brought under subdivision (c) of Code of Civil Procedure section 1987 must be “accompanied by a showing … of materiality of the items to the issues ….” (Ibid.)

Absent from the December 11 subpoena are sufficiently specific facts showing the materiality of the requested records to the issues involved in this case, and a sufficiently specific description of the exact matters or things to be produced by EFS. (See Seven Up Bottling Co. of Los Angeles v. Superior Court (1951) 107 Cal.App.2d 75, 77 [general discussion].) Moreover, Kelmar fails to state that the matters and things sought in the December 11 subpoena are in the possession or under the control of EFS. For these reasons, the December 11 subpoena is overly broad and fails to comply with the requirements of Code of Civil Procedure sections 1985 and 1987. (Flora Crane Service, Inc. v. Superior Court (1965) 234 Cal.App.2d 767, 785 [requesting party must specify the exact matters or things to be produced]; Calcor Space Facility, Inc. v Superior Court (1997) 53 Cal.App.4th 216, 221-225 [description of broad categories of documents found insufficient].)

Even if the Court were to determine that the December 11 subpoena sufficiently described the exact records to be produced by EFS or was otherwise effective or code complaint, the Court questions whether and to what extent Kelmar may obtain discovery of, or the Court may appropriately order EFS to produce, these records at this stage of the proceedings considering the default of EFS entered on December 11, 2024. (See, e.g., Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 346-347 [discussion of consequences of a defendant’s default including that the court “will treat the well-pled allegations of the complaint as admitted by the defaulting defendant”].) Wholly absent from the December 11 is any reasoned argument addressing these issues.

Apart from issues relating to the appropriateness of the December 11 subpoena and December 11 motion, for all reasons discussed above, the December 11 subpoena fails to comply with code requirements. Therefore, the Court will deny the December 11 motion.

The Court further notes that under California Rules of Court, rule 3.110(h), Kelmar “must obtain a default judgment against [EFS] within 45 days after the default was entered, unless the court has granted an extension of time. The court may issue an order to show cause why sanctions should not be imposed if that party fails to obtain entry of judgment against a defaulting party or to request an extension of time to apply for a default judgment within that time.” (Cal. Rules of Court, rule 3.110(h).) Though the time within which Kelmar must obtain a default judgment against EFS has not run, as the Court has no record showing that Kelmar requested an extension of time to obtain a default judgment. Kelmar is reminded of her obligation to comply with court rules. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 [self-representation is not grounds for lenient or exceptional treatment].)