Case Name: Merrill Adams vs Maria Rocha et al
Case No.: 20151CV287428

Plaintiff Merrill Adams (“Plaintiff”) and Defendant Maria Rocha have filed competing motions to compel responses to discovery. This tentative ruling applies to Plaintiff’s motion to compel, although the orders about service apply to all aspects of this case.

The Court will initially address defects in Plaintiff’s moving papers.

Proper service of papers:

a. Service on counsel only

The Court has had an ongoing discussion with Plaintiff about the proper service of pleadings in this case. It is true that the Court told Plaintiff that until Maria Rocha had been properly served with summons and she had filed an answer, Plaintiff could not serve papers on attorney William Gustafson. No other judge has made any orders in this case, so whether other judges have made different orders is irrelevant.

However, after Defendant filed and served her answer and cross-complaint, Plaintiff has been advised and ordered to serve only her attorney. Plaintiff has ignored this order. The “bulletin” attachment to Plaintiff’s papers that allegedly states that service on attorneys is only a courtesy is from a different state and does not reflect and is inconsistent with California law. California law, the only law that applies to this case, is clear that:
“Service on a party or attorney

Whenever a document is required to be served on a party, the service must be made on the party’s attorney if the party is represented.”
(California Rules of Court, Rule 1.21(a), emphasis added.)

b. Certified mail is not an authorized method of service

Plaintiff regularly sends mail, usually only to Maria Rocha directly, by certified mail. The Code of Civil Procedure lays out appropriate methods of service of discovery and motions, and certified mail is not one of them. Pleadings may be served (on counsel) by electronic service (Code of Civ. Proc. § 1010.6); personal service on a party’s attorney (Code of Civ. Proc. § 1011; Rule 1.21(a)); or by mail, express mail, or facsimile (Code of Civ. Proc. § 1013.) Nowhere in the Code is certified mail mentioned as an authorized method of service, for good reasons. Sending a document by certified mail takes longer than ordinary mail, and is not certain to be received. No person is obligated to accept certified mail. If it is not received, the Court cannot and will not assume proper service. Although Plaintiff attaches “U.S. Postal Service Certified Mail Receipts” to his proofs of service, none of them are signed by any recipient. Plaintiff presented no proof that either his original discovery requests or the motion to compel were properly served or ever received.

c. A party cannot sign a proof of service

All of Plaintiff’s “proofs of service” are signed by him. The official Judicial Council form for proof of service by mail contains the following statement: “I am over 18 years of age and not a party to this action.” This statement is consistent with Code of Civil Procedure section 1013a (“Service by mail: proof”) that requires that any proof of service affidavit must state that he is not a party to the case. This same code section includes a number of other required statements that are lacking in the proofs of service that Plaintiff files.

ORDERS REGARDING PROPER SERVICE IN THIS CASE

Plaintiff is ORDERED to follow these rules when serving documents in this case:

1) So long as any attorney is counsel of record in this case, Plaintiff must serve only counsel, and not Maria Rocha directly.

2) Plaintiff shall not use certified mail to serve pleadings, and shall provide proper proofs of service.

3) Plaintiff may not personally serve any pleadings as he is a party to the action.

If Plaintiff fails to follow these rules, the Court may not consider pleadings filed.

Plaintiff’s motion to compel:

As the Court has no valid evidence that Plaintiff’s discovery requests or his motion were properly served, the motion to compel is DENIED without prejudice. Moreover, Plaintiff made no attempt at meet and confer before filing the motion.