SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES DEPARTMENT CE-ll HON. MICHAEL I. LEVANAS, JUDGE IN RE THE ESTATE OF: ISADORE ROSENBERG, NO. BP109162 DECEASED. REPORTER'S TRANSCRIPT OF PROCEEDINGS THURSDAY, MAY 5, 2011 APPEARANCES: FOR RESPONDENT AND MOVING PARTY ONEWEST BANK : FOR PETITIONER AND RESPONDING PARTY STEVEN MARK ROSENBERG: FOR FIDELITY NATIONAL TITLE INSURANCE: GARRETT & TULLY, PC BY : JENNIFER R. SLATER ATTORNEY AT LAW 225 SOUTH LAKE AVENUE SUITE 1400 PASADENA, CA 91101 (626)577-9500 STEWART J. LEVIN, ESQ. 8200 WILSHIRE BOULEVARD BEVERLY HILLS, CA 90211 (310) 777-7550 FIDELITY NATIONAL LAW GROUP BY: JUDITH E. DEMING ATTORNEY AT LAW (VIA COURTCALL) 915 WILSHIRE BOULEVARD SUITE 2100 LOS ANGELES, CA 90017 (213) 438-7203 CLARECE ENGLISH PETERS C.S.R. NO. 5667 OFFICIAL REPORTER
1 1 CASE NUMBER: BP109162 2 CASE NAME: IN RE THE ESTATE OF: ISADORE 3 ROSENBERG, DECEASED 4 LOS ANGELES, CALIFORNIA THURSDAY, MAY 5, 2011 5 DEPARTMENT CE-ll 6 APPEARANCES: 7 REPORTER: 8 TIME: 9 HON. MICHAEL I. LEVANAS, JUDGE {AS HERETOFORE NOTED.) CLARECE ENGLISH PETERS, CSR #5667 A.M. SESSION -- - 000--- 10 NOS. 311, 312, ROSENBERG. 11 MS. DEMING: GOOD MORNING, YOUR HONOR. ON COURTCALL 12 JUDITH DEMING FOR FIDELITY NATIONAL TITLE INSURANCE. 13 MS. SLATER: GOOD MORNING, YOUR HONOR; JENNIFIER 14 SLATER ON BEHALF OF RESPONDENT AND MOVING PARTY ONEWEST 15 BANK. 16 MR. LEVIN: GOOD MORNING, YOUR HONOR; STUART LEVIN ON 17 BEHALF OF PETITIONER, WHO IS THE RESPONDING PARTY TO THE 18 MOTION TO COMPEL ON CALENDAR TODAY. 19 MR. ROSENBERG : GOOD MORNING, YOUR HONOR. I'M STEVEN 20 MARK ROSENBERG, PERSONAL ESTATE REPRESENTATIVE AND SUCCESSOR 21 TRUSTEE. 22 ALL RIGHT. IN THIS CASE, THE COURT'S 23 TENTATIVE IS TO THE MOTION TO COMPEL RESPONSES BROUGHT BY 24 ONEWEST BANK. THE COURT'S TENTATIVE IS TO DENY THIS 25 REQUEST. IT DOES NOT APPEAR THAT MOVING PARTY WAS A PARTY 26 TO THE ACTION AT THE TIME THAT THE MOVING PARTY PROPOUNDED 27 THE DISCOVERY. MOVING PARTY WAS ONLY ADDED AS A PARTY ON 28 APRIL 13TH, 2011, BY RESPONDING PARTY'S FIRST AMENDED
2 1 COMPLAINT. THE COURT DOES NOTE THAT WHILE MOVING PARTY 2 ATTEMPTED TO INSERT HIMSELF INTO THE CASE BY RESPONDING TO 3 RESPONDING PARTY'S PETITION, MOVING PARTY DID NOT PROPERLY 4 SEEK INTERVENTION PURSUANT TO C. C.P. SECTION 387(A). 5 ACCORDINGLY, THE MOTION TO COMPEL RESPONSES SHOULD BE 6 DENIED. 7 THE COURT WILL HEAR ARGUMENT REGARDING 8 SANCTIONS. 9 MS. SLATER: YOUR HONOR, MY CLIENT FILED AN ANSWER TO 10 THE PETITION BACK IN -- 11 I'M SORRY. 12 MS. SLATER: MY CLIENT, ONEWEST BANK, WAS ERRONEOUSLY 13 NAMED, AND ACTUALLY IT WAS MERS THAT WAS ERRONEOUSLY NAMED 14 AS THE -BENEFICIARY. THERE'S AN ASSIGNMENT OF RECORD, WHICH 15 IS ONE OF THE EXHIBITS TO OUR REPLY BRIEF, THAT SHOWS THAT 16 MERS HAD ASSIGNED ITS BENEFICIAL RIGHTS IN THE DEED OF TRUST 17 AT ISSUE TO INDYMAC BANK. IT'S EXHIBIT 1 TO MY REPLY BRIEF. 18 AFTER THAT TIME, INDYMAC BANK HAD EVENTUALLY BECOME UNDER 19 RECEIVERSHIP WITH THE F.D.I.C. AND IN MARCH OF 2009, MY 20 CLIENT, ONEWEST BANK, OBTAINED ALL THE ACTUAL RIGHTS AND 21 INTERESTS IN THAT DEED OF TRUST. 22 ONEWEST BANK WAS NOT NAMED AS A RESPONDENT IN 23 THE PETITION. THAT IS CORRECT, YOUR HONOR, BUT RESPONDENT, 24 ONEWEST BANK, FILED AN ANSWER ON BEHALF OF ITSELF SAYING 25 THAT IT WAS ERRONEOUSLY NAMED AS MERS IN THE 850 PETITION. 26 AND THAT WAS FILED, I BELIEVE IT WAS IN MAY OF 2010. THERE 27 WAS NO OBJECTION TO ONEWEST BANK'S INSERTION INTO THE 28 ACTION.
3 1 AT THAT TIME IN, I BELIEVE IT WAS AUGUST OF 2 2010, THEY SERVED DISCOVERY REQUESTS ON PETITIONER'S 3 COUNSEL. PETITIONER ASKED FOR SEVERAL EXTENSIONS. THOSE 4 EXTENSIONS WERE GRANTED. EVENTUALLY PETITIONER'S COUNSEL 5 INDICATED THAT HE WOULD NOT BE RESPONDING TO DISCOVERY THAT 6 WAS PROPOUNDED BY ONEWEST BANK; THAT HE WOULD ONLY RESPOND 7 TO DISCOVERY THAT WAS PROPOUNDED ON BY MERS. HE DID RESPOND 8 TO THAT DISCOVERY. AFTER THAT, MY ASSOCIATE, MS. CHANG, HAD 9 SEVERAL CONVERSATIONS WITH MR. LEVIN INDICATING THAT SHE HAD 10 NOT RECEIVED THE DISCOVERY RESPONSES. EXTENSIONS WERE 11 GRANTED. EVENTUALLY, HE INDICATED, "I DON'T NEED TO RESPOND 12 TO DISCOVERY," HOW IT'S SIMILAR. SHE GAVE HIM THE OPTION OF 13 ONLY RESPONDING TO THOSE INTERROGATORIES THAT WERE SPECIFIC 14 TO ONEWEST BANK, AND THEN INDICATED THAT HE COULD 15 INCORPORATE BY REFERENCE HIS RESPONSES TO THE MERS 16 DISCOVERY. 17 SO THERE'S SEVERAL INTERROGATORIES AND REQUESTS 18 FOR PRODUCTION THAT ARE SPECIFIC. ONLY TO ONEWEST BANK, AND 19 MR. LEVIN JUST DID NOT RESPOND TO ALL. WE'VE GIVEN HIM 20 SUFFICIENT OPPORTUNITIES TO RESPOND TO THOSE REQUESTS FOR 21 PRODUCTION AND INTERROGATORIES. AND WITHOUT ANY 22 JUSTIFICATION, HE JUST COMPLETELY DECIDED THAT HE DIDN'T 23 NEED TO RESPOND. 24 THE DISCOVERY IS DIRECTLY RELEVANT TO THE 25 CONTENTIONS THAT ARE MADE IN THE 850 PETITION. AND YOUR 26 HONOR, IT'S JUST THIS GAMESMANSHIP IN DECIDING THAT HE WANTS 27 TO HAVE ONEWEST BANK NOW AS A PARTY TO THE ACTION, BUT 28 DOESN'T WANT TO RESPOND TO ITS DISCOVERY.
4 1 NO, NO. IT SEEMS TO ME THAT, AND MAYBE 2 IT'S TECHNICAL, BUT THE POINT WHERE THIS DISCOVERY WAS 3 PROPOUNDED, IT WAS ONLY PROPOUNDED ON THE BASIS THAT YOU 4 ANSWERED AND INSERTED YOURSELF INTO THE LITIGATION, AND 5 DIDN'T YOU COMPLY WITH C.C. P. 387. IT'S NOT A QUESTION OF 6 WHETHER OR NOT YOU, AT THIS POINT BECAUSE YOU'RE NAMED IN 7 THE AMENDED COMPLAINT, YOU CAN PROPOUND DISCOVERY. IT'S 8 JUST THAT IT WASN'T PROPOUNDED AT A TIME WHEN YOU WERE 9 PROPERLY IN THE CASE. THAT'S THE ONLY ISSUE. 10 MS. SLATER : I UNDERSTAND THAT. WELL, SANCTIONS ARE 11 NOT APPROPRIATE AGAINST MY CLIENT BECAUSE MY CLIENT WAS 12 ACTING IN GOOD FAITH. 13 ALL RIGHT. OKAY. I'LL GET BACK TO YOU 14 IF I THINK SANCTIONS ARE TO BE AWARDED. OKAY? 15 16 MS. SLATER : OKAY. ANY DISCUSSION REGARDING SANCTIONS? 17 MR. LEVIN: YES, YOUR HONOR. YOUR HONOR, THE 18 DISCOVERY ACT IS SPECIFICALLY SET UP TO PROVIDE FOR THE FLOW 19 OF INFORMATION AND DOCUMENTS WHICH ARE VERIFIED THAT CAN BE 20 USED AT TRIAL. I MADE EVERY ATTEMPT IN GOOD FAITH TO ACT AS 21 A BROKER SO THAT THE FACT THAT THERE WAS A GREAT DEAL OF 22 CONFUSION CAUSED BY, IN THIS CASE, THE MOVING PARTY, COULD 23 BE ALLEVIATED IN THE SENSE THAT WE COULD HAVE -- THEY COULD 24 HAVE TAKEN WHATEVER STEPS THEY WANTED. 25 I SAID, "LISTEN, I'LL GIVE YOU A FULL 26 EXTENSION. YOU CAN HAVE ALL THE TIME YOU WANT, IN CASE YOU 27 EVER DECIDE TO BRING A MOTION ON BEHALF OF THE BANK. BUT IN 28 THE MEANTIME, PROPERLY PROPOUND YOUR DISCOVERY ON BEHALF OF
5 1 [viers. MY CLIENT WILL ANSWER ANYTHING AND EVERYTHING, " WHICH 2 IS ~\HAT HAPPENED. 3 MY CLIENT HAS GIVEN SIX BOXES OF ORGANIZED 4 FILING DOCUMENTS. MY CLIENT RESPONDED TO APPROXIMATELY 128 5 SPECIAL I NTERROGATORIES. MY CLIENT RESPONDED TO ALL THE 6 FORM INTERROGATORIES. WE WERE ALLOWING THEM CARTE BLANCHE, 7 RED CARPET TREATMENT. THEY COULD HAVE ANY DISCOVERY THEY 8 WANTED. AND IN FACT, MS. CHANG TOOK ADVANTAGE OF THAT TO 9 THE EXTENT THAT SHE THEN PROPOUNDED, ON BEHALF OF MERS, OVER 10 A HUNDRED AND TWENTY SPECIAL INTERROGATORIES WHICH WE 11 PROPERLY RESPONDED TO. THERE WAS NO COMPLAINT. 12 INSTEAD OF BEING SATISFIED WITH THAT OR INSTEAD 13 OF JUST PROPOUNDING WHATEVER THEY WANTED TO ON BEHALF OF 14 MERS OR INSTEAD OF WAITING UNTIL MY MOTION TO AMEND WAS 15 GRANTED WHEN THE BANK COULD PROPOUND DISCOVERY, FOR NO 16 REASON AT ALL, FOR NO REASON AT ALL THAT HAS ANY 17 SUBSTANTIATIVE JUSTIFICATION IN TERMS OF THE DISCOVERY THAT 18 MY CLIENT AND I WERE PROVIDING IN GOOD FAITH, THEY FILED 19 THIS MOTION. 20 NOW, I'VE HAD TO SPEND ABOUT THREE-AND-A-HALF 21 HOURS OF MY TIME RESPONDING IN WRITING. I'VE HAD TO COME 22 DOWN HERE THIS MORNING. I MEAN, THESE ARE TOTALLY 23 UNNECESSARY EXPENDITURES OF MY TIME. 24 OKAY. LET ME ASK A QUESTION, IF I COULD. 25 WHEN DID YOU FIRST NOTIFY BANK OF THE WEST 26 (SIC) THAT THEY DIDN'T HAVE A RIGHT TO PROPOUND DISCOVERY 27 BECAUSE AT THE TIME THEY PROPOUNDED IT, THEY'RE NOT A PARTY? 28 WHEN DID YOU RAISE THAT?
6 1 MR. LEVIN: DURING THE MEET AND CONFER PROCESS AFTER 2 THEY PROPOUNDED -- 3 WHICH DOCUMENT IN YOUR MOVING PAPERS 4 SUPPORTS THAT? 5 MR. LEVIN: WELL, IN MY DECLARATION, YOUR HONOR, I - 6 YOUR DECLARATION? 7 8 MR. LEVIN: PARAGRAPH 12. LET ME JUST GET THERE. PARAGRAPH 12. 10 9 OKAY. MR. LEVIN: AND THEN CONTINUES TO DESCRIBE THE 11 EXTENSIVE MEET AND CONFER, WHICH WAS IN GOOD FAITH ON OUR 12 PART, JUST SO WE COULD AVOID HAVING TO COME TO COURT TODAY 13 UNNECESSARILY. 14 NO, NO. THIS DECLARATION DOESN'T SAY 15 THAT THAT'S THE REASON THAT YOU INDICATED YOU WERE NOT GOING 16 TO RESPOND. 17 WHEN DID YOU FIRST TELL ONEWEST BANK THAT THEY 18 WERE NOT ENTITLED TO DISCOVERY BECAUSE WHEN THE SERVED IT, 19 THEY WERE NOT PARTIES TO THE ACTION? 20 MR. LEVIN: IN MY DECLARATION I SAY, AFTER IT WAS 21 SERVED, I CALLED CANDI CHANG OF GARRETT & TOLLEY, AND I TOLD 22 MS. CHANG MY CLIENT COULD NOT, IN GOOD CONSCIENCE, RESPOND 23 TO THE DISCOVERY OF ONEWEST BANK. AND THEN AT THAT POINT, I 24 SAID, "WELL, WE'LL GIVE YOU AN OPEN EXTENSION. JUST 25 PROPOUND YOUR DISCOVERY ON BEHALF OF MERS," WHICH MS. CHANG 26 THEN DID. 27 WHAT DO YOU MEAN YOU COULDN'T IN GOOD 28 CONSCIENCE?
7 1 2 I'M NOT SURE I UNDERSTAND THAT. MR. LEVIN: BECAUSE THEY WERE NOT A PARTY. I MEAN, 3 THEY WERE NOT A PARTY TO THIS ACTION. 4 WHERE, EXCEPT FOR THIS, DID YOU PROVIDE 5 ANY NOTICE TO THEM THAT THAT WAS THE BASIS YOU WERE NOT 6 RESPONDING TO 7 8 MR. LEVIN: I SPOKE TO MS. CHANG AND I TOLD HER. ANY DECLARATION BEFORE ME, OTHER THAN 9 THIS ONE, THAT RELATES SPECIFICALLY TO THAT? 10 MR. ROSENBERG: YOUR HONOR, WHILE MY COUNSEL IS 11 LOOKING FOR THAT -- 12 NO. LET HIM HAVE A CHANCE TO LOOK AT HIS 13 PAPERS. 14 MR. ROSENBERG: ALL RIGHT. 15 MR. LEVIN: I MEAN, YOUR HONOR, STARTING ON PARAGRAPH 16 8, I MEAN I INDICATE. I CALLED CANDI CHANG. WE DISCUSSED 17 THE FACT THAT ONEWEST BANK AND MERS WERE TWO SEPARATE 18 ENTITIES. AND MY WHOLE DECLARATION IS BASICALLY BASED UPON 19 THE FACT THAT AS I SAY IN PARAGRAPH 11, MR. ROSENBERG 20 REFUSED TO ANSWER DISCOVERY BROUGHT BY ONEWEST BANK BECAUSE 21 ONEWEST BANK WAS NEVER ACTUALLY NAMED OR SERVED AS A PARTY 22 RESPONDENT. THIS IS THE WHOLE NATURE OF OUR MEET AND 23 CONFER, WHICH IS QUITE SPECIFIC IN PARAGRAPH 11. 24 MS. SLATER: YOUR HONOR, CAN I SAY ONE THING? 25 I THINK THE POINT IS, HE KEPT GIVING US 26 EXTENSIONS IN TIME, ALLUDING TO THE FACT THAT MAYBE WE'RE 2 7 GOING TO BE ABLE TO WORK IT OUT. HE NEVER REALLY REACHED A 28 RESOLUTION THAT HE WASN'T GOING TO RESPOND AT ALL TO THE
8 1 DISCOVERY ON BEHALF OF ONEWEST BANK. AND HAD HE SIMPLY 2 RESPONDED TO OUR LATTER REQUESTS FOR MEET AND CONFERS IN 3 FEBRUARY AND MARCH BEFORE WE FILED THE MOTION, HE COULD HAVE 4 SAID, "LOOK, I'M FILING AN AMENDED PETITION," OR "I'M 5 SEEKING LEAVE TO DO SO. CAN WE EXTEND THIS OUT AND SEE IF 6 WE CAN WORK THIS OUT; " AND HE DIDN'T DO THAT. HE JUST 7 DIDN'T RESPOND AT ALL. 8 ALL RIGHT. THE COURT WILL ORDER 9 SANCTIONS TO BE PAID IN THE AMOUNT OF $750. THAT'S DENIED 10 WITHOUT PREJUDICE. 11 MR. LEVIN: THANK YOU, YOUR HONOR. 12 MR. ROSENBERG: CAN I SPEAK, YOUR HONOR, JUST BY WAY 13 OF HAVING MY OWN DAY IN COURT? 14 NO, NO. YOU HAVE A LAWYER. HE'S DONE A 15 GOOD JOB HERE TODAY, AND I THINK THAT'S GOING TO BE THE END 16 OF OUR HEARING FOR TODAY'S PURPOSES. 17 MS. SLATER: YOUR HONOR, IS THERE A DEADLINE ON THE 18 SANCTIONS AWARD? 19 THIRTY DAYS. 20 21 22 THE CLERK: IS THAT TO MR. ROSENBERG? YES. 23 24 (THE PROCEEDINGS WERE CONCLUDED.) ---000--- 25 26 27 28