Case Number: 18STLC05169 Hearing Date: February 11, 2020 Dept: 25
MOTION TO BE RELIEVED AS COUNSEL
(CCP § 284(2); CRC rule 3.1362)
MOTION FOR TERMINATING/EVIDENTIARY SANCTIONS
(CCP §§ 2023.030, 2025.450(h))
TENTATIVE RULINGS:
- Defendant’s Counsel James S. Sifer’s Motion to be Relieved as Counsel is CONTINUED TO APRIL 1, 2020 AT 10:30 A.M. in Department 25. At least 16 court days before the next scheduled hearing, Defense Counsel must file a declaration of diligence and an amended proof of service demonstrating all required documents were properly served on all parties.
- Plaintiff Briana Ornelas’ Motion for Terminating Sanctions is DENIED. Plaintiff’s request for monetary sanctions is also DENIED.
ANALYSIS:
- Background
On April 3, 2018, Plaintiff Briana Ornelas (“Plaintiff”) filed an action arising from the sale of a defective vehicle against Defendants Safeway Auto Center, Inc. (“Safeway”) and Western Surety Company (“Western”) (collectively, “Defendants”). On June 1, 2018, Defendants filed an Answer.
On November 15, 2019, Defense Counsel James Sifers (“Defense Counsel”) filed the instant Motion to be Relieved as Counsel (the “Motion to be Relieved”). The hearing date was originally set for May 18, 2020. On November 22, 2019, Defense Counsel filed an Ex Parte Application for Order Shortening Time to Hear Motion to be Relieved as Counsel. On November 25, 2019, the Court granted the ex-parte application and set the hearing for February 11, 2020. (11/25/19 Minute Order.) The Court also ordered Defense Counsel to file a declaration of diligence as to locating and communicating with Safeway at least five days prior to the hearing. (Id.) To date, no opposition or reply briefs have been filed as to the Motion to be Relieved.
Also, on November 22, 2019, Plaintiff filed an Ex Parte Application to Compel the Deposition of Defendant Safeway and Production of Original Documents. On November 25, 2019, the Court granted the ex-parte application and ordered Safeway to produce certain documents by December 20, 2019. (11/25/19 Minute Order.) The Court also recommended that the parties meet and confer before the December 20 deadline to ensure all required documents would be produced. (Id.) The Court did not set a date or a deadline for Safeway’s deposition to be taken. (See Id.) On December 18, 2019, Defense counsel produced the required documents per the Court’s November 25 Order. (Mot., Valdez Decl., ¶ 9; Oppo, Mafud Decl., ¶ 11.)
On January 17, 2020, Plaintiff filed the instant Motion to Compel, Requesting Terminating Sanctions Against Safeway for Misuse of Discovery (the “Motion for Sanctions”). On January 29, 2019, Safeway filed an Opposition and on February 4, 2019, Plaintiff filed a reply.
- Motion to be Relieved as Counsel
- Legal Standard
The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc., § 284, subd. (2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Council Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c) & (e).)
In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either:
(A) The service address is the current residence or business address of the client; or
(B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.
(Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).)
- Discussion
Defense Counsel seeks to be relieved due to a conflict that arose with Safeway that has resulted in the breakdown of the attorney-client relationship. (Form MC-052, ¶ 2.) Defense Counsel further states that due to the breakdown in communication with the client, he does not believe he can adequately represent Safeway in this matter. (Id.)
The Court is satisfied with Defense Counsel’s reasons for seeking to be relieved. However, the Proof of Service, filed on November 15, 2019, shows that only a “Notice of Motion and Motion to be Relieved as Counsel,” which is the title of Form MC-051, was served on Safeway and Plaintiff’s counsel by mail. Pursuant to Code of Civil Procedure section 1013a, subdivision (1), a proof of service by mail must set forth “the exact title of the document served and filed in the cause…” But based on the Proof of Service, Forms MC-052 (Declaration) and MC-053 (Proposed Order) were not served on Safeway or on Plaintiff’s counsel. Alternatively, if Defense Counsel did serve Forms MC-052 and MC-053, then it violated Section 1013a(1) by failing to state the exact title of each document served in the Proof of Service. Either way, the Court cannot grant the Motion to be Relieved until Counsel has demonstrated that proper service of all the requisite forms has been effectuated on Safeway and Plaintiff.
In addition, Counsel has not filed a declaration of diligence as to locating and communicating with Safeway at least five days before this hearing as ordered on November 25.
Accordingly, the Motion to be Relieved, is CONTINUED TO APRIL 1, 2020 AT 10:30 A.M. in Department 25.
- Motion for Terminating Sanctions
- Legal Standard
Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) An evidence sanction prohibits a party that misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) The court may impose a terminating sanction by one of the following orders:
(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.
(2) An order staying further proceedings by that party until an order for discovery is obeyed.
(3) An order dismissing the action, or any part of the action, of that party.
(4) An order rendering a judgment by default against that party.
(Code Civ. Proc., § 2023.030, subd. (d).)
- Discussion
Defense Counsel has complied with the Court’s order to produce certain documents. (Mot., Valdez Decl., ¶ 9; Oppo, Mafud Decl., ¶ 11.) Thus, the only remaining issue is Safeway’s deposition. Because a deposition for Safeway has not yet been scheduled, Plaintiff requests that the Court strike Safeway’s Answer, enter Safeway’s Default, and preclude any testimony of any witness associated with Safeway at trial. (Mot., p. 9.)
The Court finds that neither terminating nor evidentiary sanctions are warranted here. First, although Plaintiff repeatedly asserts the Court’s November 25, 2019 Order permits her to seek terminating sanctions if Safeway fails to appear for its deposition, the minute order contains no such language. (11/25/19 Minute Order.)
In addition, Plaintiff has not demonstrated a history of abuse or that lesser sanctions would be futile. Safeway’s deposition was originally scheduled for August 14, 2019. (Mot., Valdez Decl., ¶ 3.) It was Plaintiff’s counsel who thereafter requested that it be rescheduled twice, to which Defense Counsel promptly provided available dates to accommodate the request. (Oppo., Mafud Decl., ¶¶ 2-3, Exh. 1, 2.) On November 12, 2019, Defense Counsel informed Plaintiff’s counsel that it would not be able to attend the Deposition due to a conflict and could not provide dates before January 2020, other than December 18, due to his trial calendar and the holidays. (Oppo., Mafud Depo., ¶ 4, Exh. 3.) The fact that Defense Counsel requested to re-schedule the deposition once, however, does not demonstrate Safeway repeatedly failed or refused to submit to a deposition.
Furthermore, Plaintiff has not demonstrated Safeway willfully violated the Court’s order because Safeway has not actually failed to appear for a duly noticed deposition. Plaintiff argues that terminating and evidentiary sanctions should be imposed because Defense Counsel has not been able to communicate with its client and because a deposition has not been rescheduled. (Mot., p. 5:15-19.) However, Plaintiff never issued a new Notice of Deposition to Safeway. Notably, Plaintiff filed the instant Motion for Sanctions on January 17, 2020, which is one of the dates that Defense Counsel noted was available for Safeway’s deposition. (Oppo., Mafud Decl., ¶ 4, Exh. 3.) Plaintiff’s counsel could have easily noticed Safeway’s deposition for this date, held the deposition, and if Safeway failed to show, obtained a certificate of non-appearance. The Court then could have concluded Safeway failed to appear for deposition in violation of its order. However, under the present circumstances, the Court cannot find there was a willful and direct violation of the November 25, 2019 Order that justifies the imposition of terminating and evidentiary sanctions.
Thus, Plaintiff’s request for terminating and evidentiary sanctions is DENIED. Plaintiff’s request for monetary sanctions in the amount of $3,624.00 incurred as a result of brining this motion, is also DENIED.
- Conclusion & Order
- Defendant’s Counsel James S. Sifer’s Motion to be Relieved as Counsel is CONTINUED TO APRIL 27, 2020 AT 10:30 A.M. in Department 25, SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defense Counsel must file a declaration of diligence and an amended proof of service demonstrating all required documents were properly served on all parties.
- Plaintiff Briana Ornelas’ Motion for Terminating Sanctions is DENIED. Plaintiff’s request for monetary sanctions is also DENIED.
Moving parties are ordered to give notice.