Michael Goldberg vs Surveillance Security Inc
Case No: 18CV05244
Hearing Date: Wed Sep 04, 2019 9:30

Nature of Proceedings: Compel Compliance with Order/Terminating and Other Sanctions

TENTATIVE RULING:

For the reasons set forth herein, the motion (filed April 9, 2019) of plaintiff Michael Goldberg to compel compliance by defendant Surveillance Security, Inc., of the court’s May 22, 2019, discovery order is ordered off calendar for lack of effective service. Counsel for plaintiff is ordered to serve notice of this ruling on counsel for defendant (the moving parties in motion to be relieved as counsel), including in the notice the court’s identification of the fact that the order relieving such counsel is by its terms not yet effective based on the lack of filing proof of service of the order on defendant. Proof of service of the notice of this ruling shall be filed with the court no later than September 9, 2019.

Background:

On October 25, 2018, plaintiff Michael Goldberg filed his complaint in this action against defendant Surveillance Security, Inc., (SSI) asserting wage and hour claims.

On January 7, 2019, SSI, through its counsel, filed its answer to the complaint, generally denying the allegations thereof and asserting 20 affirmative defenses.

On January 15, 2019, plaintiff served SSI with its request for production of documents, set one, special interrogatories, set one, and form interrogatories, set one (collectively, the discovery). (Cordes decl., ¶ 2 & exhibits A-C.) (Note: The exhibits to the motion do not comply with Cal. Rules of Court, rule 3.1110(f)(4) by not providing electronic bookmarks for each exhibit.)

On March 12, 2019, SSI served its responses to the discovery, consisting entirely of objections. (Cordes decl., ¶ 3 & exhibits D-F.)

On March 29, 2019, counsel for SSI filed their motion to be relieved as counsel. The motion noticed a hearing date of April 24, 2019. The motion was served on Brendan Waller on behalf of SSI. (Motion, filed Apr. 24, 2019, proof of service.) The declaration in support of the motion states that the next scheduled hearing is the case management conference also set for April 24.

On April 9, 2019, plaintiff filed two motions to compel further responses to the discovery. The motions were served on counsel for SSI. The motions to compel were noticed for hearing on May 22.

On April 24, 2019, the court heard and granted motion of counsel for SSI to be relieved as counsel. The court also set a case management conference for May 22, 2019. As set forth in the court’s minute order, counsel for plaintiff and counsel moving to be relieved as counsel were present at the hearing. SSI did not otherwise appear. The court’s minute order states that both sides waived notice and that “Plaintiff will give notice if new counsel comes in.” (Minute Order, filed Apr. 24, 2019.)

On April 24, 2019, plaintiff’s counsel served notice of the case management order on outgoing counsel for SSI and on “Brendan Walter” (misspelling “Brendan Waller”) for SSI.

On April 26, 2019, the court entered the written order granting the motion of counsel for SSI to be relieved as counsel. The proposed order had been submitted by counsel for SSI to the court and served on counsel for plaintiff and on Brendan Waller of SSI on April 8. The order, as submitted and as signed by the court, states: “Attorney is relieved as counsel for client [¶] a. [x] effective upon the filing of the proof of service of this signed order upon the client.” (Order, filed Apr. 26, 2019, ¶ 5a.) The order as submitted identified the next scheduled hearing as the April 24 case management order; the court interlineated in the signed order that the next scheduled hearing was the motion to compel set for May 22, 2019.

No proof of service of the April 26, 2019, written order has been filed with the court.

No opposition or other response was filed to the motions to compel set for May 22, 2019. On May 22, the court heard the motions to compel; there was no appearance for SSI. (Cordes decl., ¶ 6.) The court granted the motions to compel, requiring responses by June 5, 2019, but denying the request for sanctions.

Following the hearing on May 22, 2019, counsel for plaintiff served “Brendan Walter” of SSI by mail with notice of the court’s ruling on the motions to compel, that the court ordered compliance by June 5, that counsel for the parties are to return for a case management conference on August 28, and that counsel for plaintiff was to give notice. The notice of ruling was filed with the court on June 24.

On July 24, 2019, plaintiff filed this motion to compel compliance with the court’s order of May 22 by terminating sanctions, or, alternatively, for an evidence, issue, or monetary sanction. The notice and motion were served by mail on “Brendan Walter” of SSI on July 24.

On July 31, 2019, plaintiff filed his motion to strike the answer of SSI on the grounds that SSI is now an improperly self-represented corporate defendant. This motion was originally set for hearing on September 4. At the case management conference in this matter on August 28, the court continued the motion to strike to September 18, 2019, but did not continue the instant motion.

No opposition or other response has been filed by SSI to this motion.

Analysis:

There is a procedural problem with this motion. The motion was served on SSI itself by mail and not on SSI’s counsel. This service is ineffective. “[I]n all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party, except service of subpoenas, of writs, and other process issued in the suit, and of papers to bring the party into contempt.” (Code Civ. Proc., § 1015.) An attorney remains the attorney of record until the attorney is discharged or substituted out of the case in the manner provided by law. (See Reynolds v. Reynolds (1943) 21 Cal.2d 580, 584.)

Pursuant to the express terms of the court’s order granting counsel for SSI’s motion to be relieved as counsel, the court’s order was not effective until the filing of proof of service of the signed written order on SSI. That has not occurred and the court’s order relieving counsel is not yet effective to relieve attorneys Aaron H. Cole and Heather M. Martone as counsel of record for SSI. The form of the order was prepared by the moving-outgoing attorneys and was served, as a proposed order prior to entry, on counsel for plaintiff. Service on SSI (to the person of the perpetually misspelled Mr. Waller) is insufficient. (See Urethane Foam Experts, Inc. v. Latimer (1995) 31 Cal.App.4th 763, 767 [“the notice was sent to a party that had not received adequate notice of the withdrawal of its attorney; the notice was therefore ineffective”].)

The court notes that this same analysis raises substantial questions about the state of service of other papers on SSI. The April 9 motion to compel underlying this motion was served on SSI’s counsel, but there is no evidence presented in this motion that SSI was provided notice of the May 22 hearing. The notice of the May 22 hearing was only included in the court’s April 26 order for which there is no proof of service on SSI. The conclusory terms of the notice of the May 22 ruling are insufficient to show that SSI was given legally appropriate notice (timely or not) of SSI’s obligations to comply with that ruling. Rather than require further service of an apparently insufficient motion, the court instead will order the present motion off calendar for lack of effective service without prejudice to the making of a new, properly served and supported motion.