RBCM Partners II LLC et al vs The Fountain Group

Case Number

22CV03456

Case Type

Hearing Date / Time

Fri, 10/13/2023 - 10:00

Nature of Proceedings

Case Management Conference; Motion to Be Relieved as Counsel; Motion to Compel

Tentative Ruling

(1) For all reasons discussed herein, the motion to be relieved as counsel for defendant Jacqueline Rubasky is granted.

(2) For all reasons discussed herein, the motion to be relieved as counsel for defendant Fountain Group, LLC, is granted.

(3) The effective dates of the Court’s orders relieving counsel shall be delayed until proofs of electronic and mail service of a copy of each signed order on Jacqueline Rubasky and on Fountain Group, LLC, have been filed with the Court.

(4) Counsel for Jacqueline Rubasky and Fountain Group, LLC, shall, in accordance with this ruling, serve a copy of the Court’s ruling on each defendant by electronic and regular mail, and file appropriate proofs evidencing such service.

(5) For all reasons discussed herein, the motion of plaintiffs to compel defendants’ responses to form interrogatories and requests for production of documents and tangible things is granted, in part. Defendants Jacqueline Rubasky and Fountain Group, LLC, shall serve verified responses to plaintiffs’ form interrogatories-general, form interrogatories-unlawful detainer, and requests for production of documents and tangible things no later than 30 days after the effective date of the Court’s orders relieving counsel as provided herein. Plaintiffs’ request for monetary sanctions is denied.

Background:

Plaintiffs RBCM Partners II, LLC (RBCM) and Richard Marcellin (Marcellin) (collectively, plaintiffs) filed their complaint for unlawful detainer on September 9, 2022, against defendants The Fountain Group, LLC (Fountain Group) and Jacqueline Rubasky (Rubasky) (collectively, defendants). As alleged in the complaint, on June 15, 2018, defendants agreed to rent premises within the city limits of Santa Barbara, California and located at 1666 Franceschi Road (the premises), pursuant to a one-year written residential lease agreement (the lease) with Marcellin and RBCM’s predecessor-in-interest. (Complaint, ¶¶ 2, 3.a., 3.b, 4, 6.a, 6.a(1), 6.b(1), 6.e & Exh. 1.) Defendants agreed to pay monthly rent of $6,500. (Id. at ¶ 6.a(2).) The lease was later changed on October 20, 2021, when defendants were served with a “Notice: Property Exempt From Just Cause & Limits on Rent Increase Addendum to Rental Agreement.” (Id. at ¶ 6.d.) The tenancy is not subject to the Tenant Protection Act of 2019. (Id. at ¶ 7.a.)

On June 27 and July 5, 2022, plaintiffs posted a copy of a 3-day notice to pay rent or quit (the 3-day notice) at the premises, gave a copy of the 3-day notice to a person found residing at the premises, and mailed a copy of the 3-day notice to defendants at the premises. (Complaint, ¶ 9.a(1), 9.e, 10.a.(3), 10.d & Exh. 2.) The 3-day notice included an election of forfeiture. (Id. at ¶ 9.d.) On June 30 and July 8, 2022, the period stated in the 3-day notice expired at the end of the day and defendants failed to comply with its requirements by those dates. (Id. at ¶ 9.b(1) & (2).) At the time the 3-day notice was served, the amount of rent due was $19,500. (Id. at ¶ 12.)

The default of defendants entered on October 14, 2022, was set aside on December 2, 2022, pursuant to the parties’ joint stipulation and the Court’s order, and on December 9, 2022, defendants filed an answer to the complaint specifically denying its allegations and asserting affirmative defenses and objections. In their answer to plaintiffs’ complaint, defendants allege that they vacated the premises on October 1, 2022.

Court records further reflect that on August 4, 2023, Rubasky filed a notice of related case identifying case number 23CV00748 entitled Jacqueline Rubasky vs. Richard Marcellin, et al. and filed on February 23, 2023 (the related action), as related to the present action.

On June 6, 2023, plaintiffs filed a motion to compel Rubasky and Fountain Group to each serve verified responses, without objections, to plaintiffs’ set one form interrogatories – general, set one form interrogatories – unlawful detainer, and set one request for production of documents and tangible things (collectively, the discovery requests). In the motion to compel, plaintiffs also seek an award of monetary sanctions against defendants and their counsel.

In support of the motion to compel, plaintiffs’ counsel declares that the discovery requests were each served on Rubasky and Fountain Group on January 23, 2023. (Jeppesen Decl., ¶¶ 2, 3 & Exhs. A-F.) On January 25, 2023, plaintiffs’ counsel sent an email to defendants’ counsel stating that defendants’ responses to the discovery requests would be due on February 24, 2023. (Id. at ¶ 5.) On February 14, 2023, counsel for plaintiffs communicated to defendants’ counsel that she expected timely responses to the discovery requests and stated that the discovery requests related to the claims raised in defendants’ answer to the complaint. (Ibid.) On April 17, 2023, plaintiffs’ counsel sent an email to defendants’ counsel in an effort to meet and confer regarding the status of defendants’ responses to the discovery requests. (Ibid.) On April 17 and 19, 2023, defendants’ counsel communicated to plaintiffs’ counsel that another attorney had filed a new civil case, that the cases would need to be consolidated, that the new attorney would file a motion to consolidate the cases, and that defendants’ current counsel would be withdrawing from this matter. (Ibid.) Defendants’ counsel’s communications did not address the discovery requests. (Ibid.) Defendants did not respond to the discovery requests. (Id. at ¶¶ 4, 6.)

Defendants filed an opposition to the motion to compel on August 21, 2023, in which defendants do not dispute that on January 23, 2023, plaintiffs propounded the discovery requests on defendants. (Taylor Decl., ¶ 9.) In support of defendants’ opposition to the motion to compel, defendants’ counsel declares that on September 27, 2022, she informed plaintiffs’ counsel that defendants would be out of the premises by October 15, 2022. (Id. at ¶ 6 & Exh. A.) Shortly after, defendants vacated the property. (Id. at ¶ 7.) Following the parties’ stipulation to set aside defendants’ default, defendants’ counsel requested that plaintiffs either dismiss the complaint or convert the unlawful detainer to a civil action, to which plaintiffs’ counsel did not respond. (Id. at ¶ 8.) During the month of February 2023, defendants’ counsel asked plaintiffs’ counsel to stipulate to convert the case to an ordinary civil action but plaintiffs’ counsel insisted that the case remain an unlawful detainer. (Id. at ¶ 9 & Exh. B.) Defendants did not respond to the discovery requests because Rubasky hired new counsel and filed the related action. (Id. at ¶ 10.) Rubasky’s new counsel indicated that they would defend plaintiffs’ remaining claims as soon as the case was converted to a civil action. (Ibid.) Defendants also informed plaintiffs that they would respond to the discovery requests as soon as the unlawful detainer was converted to a civil action. (Id. at ¶ 1- & Exh. C.)

On August 3, 2023, defendants’ counsel filed a motion to be relieved as counsel which is opposed by plaintiffs. On August 4, 2023, Rubasky filed a motion to consolidate the related action with the present matter for all purposes, and for an order staying the present action (the consolidation motion). Plaintiffs also oppose the consolidation motion.

On September 1, 2023, the Court issued its Minute Order (the Minute Order) continuing the hearing on plaintiffs’ motion to compel and the motion to be relieved as counsel to October 13, 2023, and ordering the consolidation motion off-calendar due to procedural deficiencies discussed in the Minute Order. Based on a lack of clarity regarding whether Rubasky’s counsel would continue to represent Fountain Group in this matter, and to the extent counsel intended to also request an order relieving them as counsel for Fountain Group, the Court ordered counsel to file revised or amended papers correcting the ambiguities discussed in the Minute Order. The Court further noted it was inclined to grant the motion to compel for all reasons discussed in the Minute Order.

On September 19, 2023, counsel for defendants filed a second motion to be relieved as counsel for Rubasky and a motion to be relieved as counsel for Fountain Group. On September 25, 2023, plaintiffs’ filed opposition to the motions to be relieved as counsel for Rubasky and Fountain Group.

On October 5, 2023, plaintiffs filed a declaration of their counsel regarding the motion to compel.

Analysis:

The Court again confirms that, for all reasons discussed in the Minute Order, this matter will proceed by operation of law as an ordinary civil action for damages because defendants have vacated the premises and possession is no longer at issue. (Civ. Code, § 1952.3, subd. (a); see also Fish Construction Co. v. Moselle Coach Works, Inc. (1983) 148 Cal.App.3d 654, 660 (Fish Construction) [“the action is converted to an ordinary civil action whenever possession has been given up before trial”.)

(1) Motions To Be Relieved As Counsel

There exists the potential for some confusion in the manner in which counsel has titled each of the motions to be relieved as counsel filed in this matter. Counsel has filed two motions to be relieved as counsel for Rubasky which are substantively similar. In addition, counsel has titled the motion to be relieved as counsel for Fountain Group as an “amended” motion notwithstanding the fact that no prior motion to be relieved as Fountain Group’s counsel was effectively filed in this matter for reasons discussed in the Minute Order. For present purposes, the Court will address the two motions as to Rubasky as one motion. In addition, the Court will address the three separate motions as effectively two motions – one to be relieved as counsel for Rubasky and the other to be relieved as counsel for Fountain Group.

“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: [¶] 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [¶] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.) A motion to be relieved as counsel must be directed to the client and made on mandatory Judicial Council form MC-051. (Cal. Rules of Court, rule 3.1362(a).) While a memorandum is not required, the motion must be accompanied by a declaration on mandatory Judicial Council form MC-052. (Id., rule 3.1362(b), (c).) “The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).” (Id., 3.1362(c).)

The motion, declaration, and a proposed order must be served on the client and all appearing parties. (Cal. Rules of Court, rule 3.1362(d).) Notice of a motion to be relieved as counsel, and the motion itself, may be served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, provided the notice is “accompanied by a declaration stating that the electronic service address is the client’s current electronic service address” which is defined to mean that “the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client’s last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.” (Cal. Rules of Court, rule 3.1362(d)(2).) A proposed order, prepared on mandatory Judicial Council form MC-053, must be lodged with the court in accordance with California Rules of Court, rule 3.1362(e).

“The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) “The case law establishes that the court has discretion to deny an attorney’s request to withdraw where such withdrawal would work an injustice or cause undue delay in the proceeding. [Citations.] But the court's discretion in this area, as elsewhere in the law, is one to be exercised reasonably.” (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.)

In support of the motion to be relieved as counsel for Rubasky and the motion to be relieved as counsel for Fountain Group (collectively, the motions), counsel submits two identical declarations in which counsel declares that counsel answered the unlawful detainer complaint as a courtesy while Rubasky and Fountain Group retained new counsel to bring a civil action, that counsel was to be relieved at the beginning of 2023, that counsel has not been paid for time spent appearing in this matter, and that Rubasky’s counsel in the related action has indicated they would sign a substitution of attorney with regard to their representation of Rubasky only the present matter. (Sept. 18, 2023, Thyne/Taylor Decl., ¶ 2 & Attachment 2.) Counsel further declares that there has been a breakdown in communication and that counsel has been unable to effectively communicate with Rubasky. (Ibid.) Counsel contends that although Fountain Group is named on the lease and Rubasky may have signed the lease on behalf of Fountain Group, Rubasky now maintains that Fountain Group is not and has never been a legal entity. (Ibid.)

Counsel also declares that copies of the motion papers served with each declaration were served on Rubasky and Fountain Group by mail at each defendants’ last known address which counsel has, by email within the last 30 days, confirmed is current. (Sept. 18, 2023, Thyne/Taylor Decl., ¶ 3.a(2) & 3.b(1)(d).) The proofs of service attached to each motion identify electronic service of each motion on Rubasky and Fountain Group. (Cal. Rules of Court, rule 3.1362(d).)

The motions are made on the required mandatory forms. Counsel declares that Rubasky was served with copies of each motion as to Rubasky on August 3 and September 19, 2023, that the notice, motion, and declaration as to Fountain Group were served on Fountain Group on September 19, 2022. Counsel effectively declares that they have confirmed within the past 30 days that the electronic service address for Rubasky and Fountain Group is current.

In the Minute Order, the Court addressed plaintiffs’ opposition to the motion to be relieved as counsel for Rubasky filed on August 3, 2023. Plaintiffs have filed an opposition to the present motions each of which were filed on September 19, 2023, on grounds that could have been but were not raised in plaintiffs’ previous opposition with regard to email service of the motion on Rubasky. Plaintiffs further contend that counsel has not shown effective electronic service of the motion as to Fountain Group. Plaintiffs also assert that the motions were filed one day after the deadline provided in the Minute Order, and were not served on each of plaintiffs’ counsel of record.

The Court will exercise its discretion to consider the motions filed on September 19, 2023, notwithstanding that the moving papers were filed one day after the deadline stated in the Minute Order. Moreover, any failure to serve each counsel of record for plaintiffs does not appear to have prejudiced plaintiffs’ ability to timely file opposition to the present motions. Therefore, the Court finds that service on plaintiffs’ counsel of record is sufficient and will not deny the amended motions on this ground.

The Court notes that mandatory Judicial Council form MC-052 on which counsel for Rubasky and Fountain Group prepared the declarations in support of the motions does not include a separate line addressing electronic service. (See Thyne/Taylor Decl., ¶ 3.) Under the circumstances present here as more fully discussed above, and considering the information and evidence offered by moving counsel, the Court interprets counsel’s declarations to refer to electronic and not mail service of each motion on Rubasky and Fountain Group. Based on the information provided in the declarations and as demonstrated in the proofs of service attached to the motions and further discussed above, the Court finds that counsel has effectively and properly served copies of the motions on Rubasky and Fountain Group in accordance with court rules.

For all reasons discussed above, counsel has described the general nature of the basis for the request to be relieved as counsel for Rubasky and Fountain Group. Based on the information provided by counsel, the court is satisfied that sufficient justification exists for relieving Rubasky and Fountain Group’s counsel in this matter. In addition, the motions are procedurally compliant and the Court finds that each motion has been effectively served on Rubasky and Fountain Group. There is no information to demonstrate that counsel’s withdrawal would work an injustice on any party or cause undue delay in this proceeding. For these reasons, the Court will grant the motions.

The Court has reviewed the proposed orders submitted by counsel and intends to sign them. However, pursuant to California Rules of Court, rule 3.1362(e), the Court will delay the effective date of the orders relieving counsel until proofs of service of a copy of each of the signed orders on Rubasky and Fountain Group, by both mail and electronic service, have been filed with the Court. Counsel for Rubasky and Fountain Group shall also serve a copy of the Court’s ruling herein on Rubasky and Fountain Group by electronic and regular mail, and file appropriate proofs evidencing such service.
 

(2) Plaintiffs’ Motion To Compel

As further discussed in the Minute Order, defendants assert that they would be “happy to respond to the discovery requests as soon as the unlawful detainer was converted to a civil action”, and that Rubasky’s new counsel is “ready to respond” to the discovery requests once this matter is no longer a summary proceeding on an expedited timeline. (See Taylor Decl. [opp. motion to compel], ¶¶10, 11.) As this matter has been converted to an ordinary civil action, defendants’ asserted justification for failing to respond to an authorized method of discovery is without legal merit. For these reasons, the Court noted in the Minute Order that it was inclined to grant plaintiffs’ motion to compel.

In the declaration filed on October 5, 2023, plaintiffs’ counsel declares that on September 11, 2023, he received an email from attorney Ilya Signayevsky, who is purportedly counsel for Rubasky in the related action, proposing that Signayevsky’s office would agree to substitute in and consolidate the present action and the related action, and that defendants would provide code-compliant responses to outstanding discovery, with objections waived, within 30 days. (Oct. 5, 2023, Ballantine Decl., ¶ 3 & Attachment [Sep. 11, 2023, email from “Ilya” to plaintiffs’ counsel].) Counsel has received no further communications from Rubasky’s counsel and has not received responses to the outstanding discovery requests. (Id. at ¶ 5.)

For all reasons discussed in the Minute Order, defendants have not demonstrated a legally sufficient excuse for failing to provide responses to the discovery requests. Therefore, the Court will grant the motion to compel. Rubasky shall provide verified code compliant responses, without objection, to plaintiffs’ set one form interrogatories – general, set one form interrogatories – unlawful detainer, and set one request for production of documents and tangible things to Rubasky. In addition, Fountain Group shall provide verified code compliant responses to plaintiffs’ set one form interrogatories – general, set one form interrogatories – unlawful detainer, and set one request for production of documents and tangible things to Fountain Group. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 [propounding party is not required to demonstrate good cause on a motion to compel responses to interrogatories or inspection demands].)

The Court recognizes that the ruling on the motions to be relieved as counsel may have an impact on Rubasky and Fountain Group’s ability to timely prepare and serve responses to the discovery requests identified above. Accordingly, the Court will order defendants to serve verified responses to the discovery requests in accordance with this ruling not later than 30 days after the effective date of the Court’s orders relieving counsel as further discussed above.

Plaintiffs request an award of sanctions against defendants and their counsel. A party who engages in conduct that constitutes a misuse of the discovery process, as defined in Code of Civil Procedure section 2023.010, may be subject to monetary sanctions including attorney’s fees incurred by anyone as a result of that conduct. (Code Civ.Proc., § 2023.030, subd. (a).) In addition, “the court shall impose a monetary sanction” against any part or attorney who “unsuccessfully … opposes a motion to compel a response” to interrogatories or an inspection demand, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.290, subd. (c); 2031.300, subd. (c).)

Under the totality of the circumstances present here and considering the parties’ misunderstanding regarding the procedural posture of this matter and the status of Rubasky and Fountain Group’s representation in this matter, the Court finds an award of sanctions at this stage of the proceedings would be unjust.