When Serving by Mail, Use a Stamp!

Dalessandro v. Mitchell, No. B293472, D2d8 (Jan. 3, 2020)

This is a discovery dispute in a judgment collections case. The underlying dispute isn’t super clear, but it appears that Creditor engaged in some sketchy stuff in judgment debtor discovery. Stuff like filing a phony proof of service and a false declaration in support of a motion to compel. Creditor’s counsel got sanctioned, for about $3,500.

There’s a question of appealability under the long-standing Fox Johns / Macaluso split regarding when post-judgment discovery orders are appealable under Code of Civil Procedure § 904.1. The Court of Appeal takes the Fox Johns side of the ledger and finds the order isn’t appealable, but takes the case as a writ anyway.

On the merits, the Court finds that debtor was never properly served with the discovery at issue. Among other things, there’s no evidence that the purportedly mailed discovery had a stamp on it. Since you can’t properly compel responses to improperly served document demands, the court was authorized to issue a sanction under Code of Civil Procedure § 2031.300(c). The fact that the court didn’t make an express finding of a lack of substantial justification did not render the sanction flawed. Instead, the statute requires the court to find substantial justification if it does not issue the sanction. In the absence of such a finding, the statute makes the sanction mandatory—“the court shall impose a monetary sanction . . . .”

Affirmed.