Case Number: KC062332 Hearing Date: June 11, 2014 Dept: J

Re: Gemini Aluminum Corporation v. Aluminum Shapes, etc. (KC062332 c/w KC064412)

(1) MOTION TO BE RELIEVED AS COUNSEL; (2)-(6) MOTIONS TO COMPEL DISCOVERY

Moving Parties: (1) Drew E. Pomerance, counsel of record for Plaintiff Gemini Aluminum Corporation; (2)-(6) Defendant Martin Bosveld

Respondents: (1)-(5) Plaintiff Gemini Aluminum Corporation; (6) Jacqueline Neag

Plaintiff alleges that Defendant Aluminum Shapes failed to pay for aluminum goods sold and delivered by plaintiff. The cross-complaint alleges that Plaintiff supplied different (less valuable) aluminum products but nevertheless charged defendant as if it had provided the more expensive type of aluminum ordered by defendant. The Complaint, filed 10/13/11, asserts causes of action for breach of contract and goods sold and delivered.

In the consolidated action, Plaintiff alleges promissory fraud against Martin and Bryan Bosveld.

Trial is set for 11/18/14.

(1) MOTION TO BE RELIEVED AS COUNSEL:

Drew E. Pomerance, counsel for Plaintiff Gemini Aluminum Corporation (“Gemini”), moves to be relieved as counsel of record.

A motion to withdraw is authorized under CCP 284. “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. [Citation] Where issues of confidentiality prevent ‘counsel from further disclosure and the court [accepts] the good faith of counsel’s representations, the court should find the conflict sufficiently established and permit withdrawal.’ [Citation].” (Manfredi & Levine v. Superior Court (1998) 66 Cal. App. 4th 1128, 1133.) However, although the court may accept general and broad statements of conflict, “[t]he trial court need not ‘accept a sweeping claim of conflict and ‘rubber stamp’ counsel’s request to withdraw.’ [Citation].” (Id. at p. 1134.)

In this case, the assertions of both moving and responding parties seem to agree that the attorney-client relationship has deteriorated, but the reason remains unclear. Attorney Pomerance claims that it is due to “philosophical differences” (Declaration in Support, Form MC-052, paragraph 2). Gemini seems to claim that it is due to Mr. Pomerance’s lack of diligence. However, Mr. Pomerance alleges that what might appear to be a lack of diligence on his part is actually due to express instructions of his client, e.g., only take the deposition of Bryan Bosveld. Either way, the conflict is sufficiently established to permit withdrawal.

Gemini argues that the Motion is defective in that only Attorney Drew Pomerance seeks to withdraw, and not the firm of Roxborough, Pomerance, Nye & Adreani, LLP (“RPNA”), who is counsel of record. However, the 1894 case law cited by Gemini predates the use of civil forms MC-051, MC-052 and MC-053 mandated by CRC Rule 3.1362 (adopted in 1984). Further, this argument is hyper-techical in nature. RPNA is listed on the top of each form as “Attorney.” Drew Pomerance’s name appears on the motion forms under “Attorney of Record” because the motion forms appear to call for a single attorney’s name.

In addition, Gemini claims it will be prejudiced because a new attorney would have to spend a substantial amount of time to learn the facts of this case, but this claim is not supported by any evidence about the complexity of the issues. Further, corporate counsel (Mr. Tripodes) is available to assist Gemini. Gemini also claims that substantial money and time have been invested in current counsel, which appears to be a good faith assertion and is unrebutted by Mr. Pomerance. However, on the whole it is in the best interest of the parties and counsel that counsel be relieved. The motion is granted.

(2)-(5) MOTIONS TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS, AND REQUEST FOR ADMISSIONS:

Defendant Martin Bosveld moves to compel Plaintiff Gemini Aluminum Corporation (“Gemini”) to provide further responses to: (2) Form Interrogatories (Set One); (3) Special Interrogatories (Set One); (4) Request for Production (Set One); and (5) Request for Admissions (Set One) pursuant to CCP §§ 2030.300, 2031.310, and 2033.290. Defendant also moves for monetary sanctions on each of the four motions.

Plaintiff Gemini responds that it will provide “substantive responses” to the discovery “in advance of the June 11, 2014, hearing date.” (Opposition Brief, page 2), thereby conceding the merits of the motions. Assuming the further responses have been served prior to the hearing, the motions to compel are deemed moot.

However, it appears that an award of monetary sanctions is appropriate. Considering the type of motion, and the nature of the issues involved, Plaintiff Gemini Aluminum Corporation (and not against its Counsel of Record, Attorney Drew E. Pomerance, because there is no fault of counsel shown) is ordered to pay to counsel for Defendant Martin Bosveld discovery sanctions in the total amount of $6,740.00 (5 hrs ea. @ $325 per hour, plus a filing fee of $60 ea.) within 10 days.

(6) MOTION TO COMPEL DEPOSITION OF JACQUELINE NEAG:

Defendant Martin Bosveld moves for an order to compel Jacqueline Neag’s appearance for deposition pursuant to CCP §§ 1987.1, 2020.240, 2025.450, and 2025.480. Defendant also moves for monetary sanctions against Jacqueline Neag and her attorney Peter Tripodes.

CRC Rule 3.1346 states, “[a] written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail at an address specified on the deposition record.”

In this case, Jacqueline Neag is a nonparty to the action and is entitled to personal service of this motion. However, she was not personally served, but was purportedly served through her attorney, Peter L. Tripodes. Yet, Mr. Tripodes is not an attorney of record in this action, and he specially appears here on behalf of Jacqueline Neag and himself only to contest service. Thus, the motion has not been properly served, and is denied without prejudice.