Case Name: Rossdale CLE, Inc. et al. v. Brian Moquin, et al.

Case No.: 16CV299730

Motion for Terminating Sanctions and Request for Monetary Sanctions

Factual and Procedural Background

Plaintiff Rossdale CLE, Inc. (“Rossdale”) is in the business of providing continuing legal education services to judges, attorneys, and legal professionals. (Complaint, ¶4.) Susan Lunden (“Lunden”) is the manager, owner, and/or CEO of Rossdale. (Complaint, ¶5.)

Rossdale retained defendant Brian Moquin (“Moquin”) to represent it in a case to recover damages (“Underlying Action”) caused by Timothy Walton (“Walton”). (Complaint, ¶19.) Walton brought a frivolous lawsuit against Rossdale in an attempt to extort a settlement out of Rossdale. (Complaint, ¶22.) Rossdale defended itself vigorously and accrued hundreds of thousands of dollars in damages to fend off Walton’s litigation. (Complaint, ¶23.) Moquin received a $10,000 flat fee to represent Rossdale in an action against Walton, agreeing to perform various services including, among other things, handling a jury trial. (Complaint, ¶25.) Moquin failed to timely complete any of the services it agreed to perform for Rossdale. (Complaint, ¶26.)

The court excused Moquin from his representation in the Underlying Action on September 10, 2015 finding Moquin had missed multiple deadlines and failed to do any work for over one year. (Complaint, ¶31.) The court dismissed the Underlying Action with prejudice noting defendant Moquin, among others, prosecuted the case in the wrong name. (Complaint, ¶¶32 – 33.) Moquin did not perform tasks required of him and did not maintain contact with Lunden/ Rossdale. (Complaint, ¶¶34 – 59 and 65.) Toward the end of his representation of Rossdale, Moquin admitted he had been terminated from other matters, had been evicted from his residence (which doubles as his office), was experiencing marital problems, was reprimanded by a judge, was advised by a California judge that the court had referred Moquin for discipline, had been the target of a disciplinary grievance filed by another client, and was under the influence of various narcotics adversely affecting his ability to practice law. (Complaint, ¶60.)

Following Moquin’s withdrawal from the Underlying Action in September 2015, Rossdale retained defendant Diane Deckard (“Deckard”) on or about October 30, 2015. (Complaint, ¶75.) Prior to retaining Deckard, Deckard represented to Lunden and others that she had the experience and background to help Rossdale obtain a continuance to seek new trial counsel. (Complaint, ¶76.) Deckard stated she would charge for four hours at her standard billing rate if the continuance was unchallenged and nine hours if contested. (Complaint, ¶77.)

Defendant Deckard assured Lunden that she would be the only attorney to go to court in the matter and the only attorney handling the Underlying Action. (Complaint, ¶79.) After being paid a $2,000 retainer, Deckard assigned defendant Patricia Leary (“Leary”) to go to the first hearing. (Complaint, ¶80.) In seeking a continuance, Deckard prepared a declaration for Lunden but failed to consider the contents exposed confidential and privileged communications between Lunden and Moquin. (Complaint, ¶¶82, 83, and 86 – 88.) As a result of Deckard’s negligence in filing Lunden’s declarations, the court found Lunden lacked credibility and dismissed Rossdale’s case with prejudice. (Complaint, ¶¶89 – 91.)

Thereafter, Deckard submitted a bill to Lunden for 45 hours, five times more than the agreed nine hours, which included time during a “free” consultation, work before Deckard was retained, duplicate billings, and work performed by Rossdale’s counsel in Florida. (Complaint, ¶94.)

On September 9, 2016, plaintiff Rossdale and The Rossdale Group, LLC filed a complaint against Moquin, Law Offices of Brian P. Moquin, Deckard, Leary, and The Deckard Law Firm asserting causes of action for:

(1) Breach of Contract [versus Moquin and Law Offices of Brian P. Moquin]
(2)
(3) Legal Malpractice
(4)
(5) Breach of Fiduciary Duty
(6)

On January 6, 2017, defendants Deckard, Leary, and The Deckard Law Firm (collectively, “Deckard Defendants”) filed an answer to the plaintiffs’ complaint and filed a cross-complaint against Rossdale, The Rossdale Group, LLC, and Lunden asserting breach of a written fee agreement and quantum meruit.

On February 2, 2017, defendant Moquin filed an answer to the plaintiffs’ complaint.

On February 21, 2017, cross-defendants Rossdale and The Rossdale Group, LLC filed an answer to the Deckard Defendants’ cross-complaint.

Discovery Dispute

On March 7, 2018, plaintiffs Rossdale and The Rossdale Group, LLC (collectively, “Rossdale”) served on defendant Moquin a first set of form interrogatories (“FI”), request for production of documents (“RPD”), and a request for admissions (“RFA”).

On April 10, 2018, Rossdale granted defendant Moquin a two-week extension to respond to the discovery requests by April 27, 2018. Rossdale granted subsequent extensions to July 18, 2018 and August 3, 2018.

On December 13, 2018, the court granted Rossdale’s motion to compel responses to discovery, deem matters admitted, and for monetary sanctions. The court signed the order on May 21, 2019.

On May 31, 2019, Rossdale mailed a letter to defendant Moquin including a copy of the court order and allowing defendant Moquin until July 1, 2019 to provide discovery responses.

As of August 12, 2019, defendant Moquin still has not provided discovery responses or paid the sanctions.

On August 12, 2019, Rossdale filed the motion now before the court, a motion for terminating sanctions and request for monetary sanctions.

I. Rossdale’s motion for terminating sanctions and request for monetary sanctions is DENIED.
II.

As a preliminary matter, defendant Moquin opposes Rossdale’s motion on procedural grounds. Code of Civil Procedure section 1005, subdivision (b) states, in relevant part, “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” Based on a hearing date of September 3, 2019, Rossdale would have had to file and personally serve this motion for terminating sanctions by August 9, 2019 in order to provide the requisite notice. Rossdale did not serve this motion until August 11, 2019 and did not file this motion for terminating sanctions until August 12, 2019. Rossdale did not obtain an order shortening time. [Due to the September 2, 2019 Labor Day holiday, Rossdale perhaps believed it would have been timely to file and serve this motion for terminating sanctions on or before August 12, 2019.]

“Insufficient or defective notice may be waived if opposing counsel shows up at the hearing and argues the merits of the motion. … [T]he court will treat their opposition on the merits as a waiver of the defects.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶9:88, p. 9(I)-70 citing Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Defendant Moquin expressly objects on the ground of inadequate notice and has not waived the insufficient or defective notice.

Accordingly, Rossdale’s motion for terminating sanctions is DENIED without prejudice due to insufficient notice.