Lawzilla Additional Information:
Per the Sacramento court records we believe defendant is represented by attorney Mark Ellis an attorney who has been repeatedly sanctioned by judges.

2016-00205405-CU-MC

Robert Michael Wiegand vs. National Enterprise Systems, Inc.

Nature of Proceeding: Motion to Compel 1) Form 2) Special 3) Production 4) Admissions

Filed By: Salmonsen, Matthew C.

Plaintiff’s Motion to Compel Defendant to provide Further Answers to Form and Special Interrogatories and Further Responses to Requests for Production (Sets One) is unopposed and is GRANTED. The request for imposition of sanctions is denied, as the motion is not opposed. Code Civil Procedure sections 2030.300(d), 2031.310(d), 2023.030(a).

Plaintiff’s Motion for Order Compelling Defendant’s Further Responses to Requests for Admissions is also GRANTED. The request for imposition of sanctions is also GRANTED. Code of Civil Procedure section 2033.290.

The Court previously posted its Tentative Ruling for these motions, which were calendared for Jan. 11, 2018, to the internet. At that time, the motions were unopposed and were granted. Counsel stipulated to a continuance of the hearing of the motions to Friday, March 9, 2018. The Court subsequently continued the matter to be heard by this judge [Brown] on today’s date (March 21, 2018).

On Feb. 9, 2018, this Court issued its Order granting Defendant National Enterprise System’s Motion for Summary Judgment; however the grant was limited to the named plaintiff only in this putative class action, not to the members of the class.

In that Minute Order on Motion for Summary Judgment the Court further found that “However, this is a putative class action and while Defendant is entitled to summary judgment on Plaintiff’s individual claims, Defendant is not entitled to summary judgment on the unnamed class members’ claims and is not entitled to dismissal of the entire action. Defendant’s evidence only addressed Plaintiff Wiegand. Indeed, Plaintiff’s concerns with Defendant’s attempt to obtain summary judgment of the entire action given that this is a putative class action are valid. Plaintiff argues that

Defendant is simply seeking to pick off the named Plaintiff to the detriment of the class. Here, even though Defendant is correct on its motion, any finding that it is entitled to summary judgment only affects Plaintiff’s individual claim and does not in any way bind unnamed class members who have no notice. (Home Sav. & Loan Assn. v. Superior Court (1974) 42 Cal.App.3d 1006, 1010-1011.) In addition “[w]hen a plaintiff sues on behalf of a class, he assumes a fiduciary obligation to members of the class, surrendering any right to compromise the group action in return for an individual gain. Even if the named plaintiff receives all of the benefits that he seeks in the complaint, such success does not divest him of the duty to continue the action for the benefit of others similarly situated.” (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 871.) To that end, in cases where a Defendant attempts to “pick off” the class representative for example, by forcing an involuntary settlement on the representative plaintiff, the law creates an exception to the requirement that a representative plaintiff continue to be a member of the proposed class. (Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1590.) The defendant is not permitted to simply serially pick off representative plaintiffs by offering the representative all the relief sought and then obtain dismissal on the basis that the named plaintiff cannot pursue the class action as the named plaintiff is no longer a class member. (Id.) “In this situation, ‘the involuntary receipt of relief does not, of itself, prevent the class plaintiff from continuing as a class representative.” (Id.) In such circumstances the Court has the discretion to determine whether the named plaintiff can suitably represent the class or allow the named plaintiff an opportunity to amend the complaint to find an alternate representative.”

“While it is true that this is not an action where the Defendant has forced an involuntary settlement on the class representative, Defendant has availed itself of the cure provision of Civil Code § § 1788.30(d) thus eliminating the individual claim of the putative class representative. The principles set forth above are applicable here. The Court will at this time simply allow Plaintiff to remain as the named Plaintiff so that a potential new class representative can be located. Defendant is free to challenge Plaintiff’s ability to remain as the class representative by way of an appropriate motion to the extent it deems necessary in the event another class representative is not located. That is, the instant motion, while demonstrating that Plaintiff’s individual claim does not necessarily demonstrate that Plaintiff is not an appropriate class representative based on the authorities above. Plaintiff is also free to amend the complaint to add another class representative. The Court cannot and will not dismiss the entire action regardless of the merits of Plaintiff’s individual claim.”

“As a result, the motion for summary judgment is granted, but only as to Plaintiff’s individual claims. The matter will not be dismissed.” (M.O., 2/9/18)

On Feb. 27, 2018, Defendant NES filed a “Response” to the Motion to Compel Discovery Responses, asserting that in light of the Motion for Summary Judgment, the discovery motion was moot, and asserts that the entire action should be dismissed because there is no longer a class representative, class counsel cannot act without one, and any discovery directed at class issues should not be permitted to move forward. Counsel for NES further requests that any further proceedings, including this motion, should be referred to Judge Perkins, in Dept. 35, as the action has been designated as complex and ordered to appear for a case management conference on April 6, 2018.

In reply, plaintiff points out that the defendant has failed to address the merits of his motion to compel further discovery and to justify his use of boilerplate objections.

Plaintiff asserts that any objections have been waived by defendant’s failure to timely raise them.

Most importantly, as the plaintiff asserts that class discovery is necessary to determine the identity of a new class representative, as permitted by the Court’s Minute Order on summary judgment, the law creates an exception to the requirement that the plaintiff continue to be a member of the putative class.

When a plaintiff sues on behalf of a class, he assumes a fiduciary obligation to the members of the class, surrendering any right to compromise the group action in return for an individual gain. Even if the named plaintiff receives all the benefits that he seeks in the complaint, such success does not divest him of the duty to continue the action for the benefit of others similarly situated. (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 871.)

Plaintiff has a duty to the putative class to find a new class representative, to amend his complaint to redefine the class, or to add new individual plaintiffs, or both, in order to establish a suitable representative. (La Sala, supra, 5 Cal.3d 864, 872.)

As Judge Perkins has ordered that all law and motion matters be determined in Dept.

53, this Court has the authority to issue its order on a motion to compel discovery.

Plaintiff’s Motion to Compel Defendant to provide Further Answers to Form and Special Interrogatories and Further Responses to Requests for Production (Sets One) is treated as unopposed and is GRANTED. The request for imposition of sanctions is denied, as the motion is not opposed. Code Civil Procedure sections 2030.300(d), 2031.310(d), 2023.030(a).

Although California Rules of Court, Rule 3.1348 purports to authorize sanctions if the motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the C.R.C. must conform to the conditions of one or more of the statutes authorizing sanctions. (Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 355.) However, repeated conduct of failing to comply with discovery obligations may lead the Court to find an abuse of the discovery process and award sanctions on that basis. ( Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal. App. 3d 481.)

Plaintiff’s Motion for Order Compelling Defendant’s Further Responses to Requests for Admissions is also GRANTED. The request for imposition of sanctions is also GRANTED. Code of Civil Procedure section 2033.290.

Defendant shall provide counsel for the plaintiff with verified, further written answers to form and special interrogatories, further responses to the requests for admissions and a verified, further response to the request for production, and produce all responsive documents, in its possession, custody or control, not later than Monday, April 2, 2018.

Sanctions in the amount of $410.00, representing reasonable attorneys’ fees (one hour at $350/hour) together with the $60 filing fee, for the requests for admissions only, shall be paid by defendant to counsel for moving party not later than Friday, April 20, 2018. Code Civil Procedure section 2033.290(d).