Marcus E. v. David Ellinwood, et al

Case Number

22CV05139

Case Type

Hearing Date / Time

Wed, 11/01/2023 - 10:00

Nature of Proceedings

Motion of Defendant David Ellinwood to Compel Further Responses to Discovery

Tentative Ruling

For Plaintiff Marcus E.: To be self-represented (see discussion herein)

Counsel: Samuel Dordulian; Alex M. Valenzuela; Nina Minassian [For the present, Plaintiff’s counsel remains counsel of record until proof of service of the signed order is served. [see discussion herein]

                                   

For Defendant David Ellinwood: Robert M. Sanger, Stephen K. Dunkle, Miguel A.

Avila, Sanger Dunkle Law, P.C.

                                   

For Defendant County of Santa Barbara: Sean A. Andrade, Andrade Gonzalez LLP

                  

RULINGS

(1)     Appearances are required for the case management conference to be held at the same time as the hearing on this motion at 10:00 a.m.

(2)     For the reasons discussed herein, the motion to compel is continued to December 13, 2023, at 10:00 a.m. Opposition to the motion to compel shall be filed and served on or before November 30, 2023.

(3)     Counsel for Ellinwood shall serve this ruling on counsel for Plaintiff, Samuel Dordulian and Alex Valenzuela of Dordulian Law Group, and shall additionally communicate to counsel for Plaintiff that counsel for Plaintiff remains counsel of record in this action and is legally bound to act as counsel for Plaintiff, until proof of service on the Plaintiff of the signed order granting relief is filed with this Court. Counsel for Plaintiff shall file such proof of service on or before November 13, 2023, and shall concurrently communicate to counsel for Ellinwood that such proof of service has been filed.

(4)     Counsel for Ellinwood shall serve the motion to compel, including all supporting papers, on Plaintiff directly, together with a copy of this ruling on or before November 13, 2023. After counsel for Plaintiff files with the Court proof of service of the signed order granting their motion to be relieved as counsel, counsel for Ellinwood shall meet and confer with Plaintiff regarding the motion to compel. Counsel shall file and serve a supplemental meet and confer declaration complying with Code of Civil Procedure section 2016.040 on or before November 20, 2023.

(5)     Counsel for Ellinwood shall pay to the Court the two unpaid additional filing fees for these motions on or before November 13, 2023, and shall file with the Court a declaration (which may be combined with the supplemental meet and confer declaration) stating that such fees have been filed.

(6)     The Trial Date of 6/26/24, the MSC Date of 6/7/24, and the Final CMC Date of 3/6/24 are all confirmed.        

Background

On December 29, 2022, Plaintiff Marcus E. (whose full name is not disclosed) filed his complaint in this action asserting claims of childhood sexual abuse and public entity liability. At the time the complaint was filed Plaintiff was represented by counsel.

On April 4, 2023, Defendant County of Santa Barbara filed its answer to the complaint generally denying the allegations thereof and asserting 25 affirmative defenses.

On April 11, 2023, Defendant David Ellinwood filed his answer to the complaint generally denying the allegations thereof and asserting 12 affirmative defenses.

On May 3, 2023, the Court held a case management conference and set a further case management conference for March 6, 2024, a settlement conference for June 7, 2024, and trial for June 26, 2024.

On May 24, 2023, Ellinwood served counsel for Plaintiff with his form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Avila decl., ¶ 5 & exhibit A.)

On June 28, 2023, Plaintiff’s counsel, Samuel Dordulian and Alex Valenzuela of Dordulian Law Group, served timely responses to the discovery consisting of objections without substantive responses. (Avila decl., ¶ 6 & exhibit B.)

On July 28, 2023, Plaintiff’s counsel filed a motion to be relieved as counsel, which included a notice of hearing on August 30, 2023. The proof of service of the motion shows service by mail on the Plaintiff as “Marcus E.” with the mailing address redacted. Plaintiff’s counsel’s supporting declaration identifies the March 6, 2024, case management conference and the June 26, 2024, trial date, but also states that there has been a lack of communication between Plaintiff and counsel. (Valenzuela decl., filed July 28, 2023, ¶¶ 2, 4, 6.)

On August 1, 2023, counsel for Ellinwood communicated with counsel for Plaintiff regarding the sufficiency of the responses to the discovery. (Avila decl., ¶ 7.) At that time, counsel for Plaintiff stated that he had filed a motion to be relieved as counsel with a hearing on August 30, and that he could not provide further discovery responses based upon the breakdown of the attorney-client relationship. (Ibid.)

On August 11, 2023, counsel for Ellinwood filed this motion to compel further discovery responses. The motion requests further responses as to each of the three sets of discovery propounded. The motion was then appropriately served on counsel for Plaintiff but not on Plaintiff directly, because counsel for Plaintiff’s motion to be relieved was still pending. The motion noticed the then-hearing date of September 13, 2023.

On August 30, 2023, the Court granted counsel for Plaintiff’s motion to be relieved as counsel. Plaintiff was not present at the August 30 hearing. The Court stated in its order from that hearing:

“At the time the motion was filed (7/28/23), the next hearing was the 3/6/24 CMC. Since that time, however, the Defendant has filed a motion to compel further responses to discovery, setting the hearing on the motion for 9/13/23. The proposed order submitted by counsel is blank. It must be a properly filled out form order and submitted to the Court for execution, including but not limited to checking box 5.a. (which provides that the attorney is relieved as counsel of record effective upon the filing of the proof of service of the signed order on the client). [¶] The Court will, sua sponte, continue the hearing on the discovery motion until 11/1/23 in order to permit Plaintiff an opportunity to attempt to obtain replacement counsel before he needs to respond to the motion (the deadline to file opposition is 8/31—one day after the hearing on this motion). This is a childhood sexual abuse case; it is important that Plaintiff have sufficient opportunity to obtain replacement counsel, rather than be forced to attempt to prosecute it in pro per. The Court also sets a CMC for 10am on 11/1/23 to set new trial dates for the case.” (Minute Order, filed Aug. 30, 2023, pp. 1-2, emphasis omitted.)

On September 1, 2023, counsel for Plaintiff filed a form of order with the Court. This order includes checking the box that “Attorney is relieved as counsel of record for client … effective upon the filing of the proof of service of this signed order upon client.” (Order, filed Sept. 12, 2023, ¶ 5.) This order includes redactions for Plaintiff’s last known address and telephone number. (Id. at ¶ 6.) This order notes the next scheduled hearing as “Case Management Statement November 01, 2023 at 10:00 a.m. Dept 3” to “set new trial dates for the case.” (Id. at ¶ 7.) This order also states: “The Court will, sua sponte, continue the hearing on the discovery motion until 11/1/23 in order to permit Plaintiff an opportunity to attempt to obtain replacement counsel before he needs to respond to the motion.” (Id. at ¶ 8.) The order was signed and entered by the Court on September 12, 2023. However, the proof of service attached to the order is for service on August 31, 2023, and hence is not proof of service of the signed order, but of an earlier, proposed order. The proof of service redacts the service address for Plaintiff.

On October 16, 2023, counsel for Ellinwood filed a case management statement for the case management hearing also set for this hearing date of November 1. The case management statement shows service on Plaintiff by mail with an address.

No opposition or other response has been filed by Plaintiff to the motion to compel.

Analysis

There are several procedural issues which prevent the Court from resolving the motion to compel at this time. However, all parties must appear for the hearing and case management conference in order to move this matter forward.

The first issue is the status of the Plaintiff’s counsel. Based upon the Court’s records, Plaintiff’s counsel has not yet been relieved as counsel because there is no proof of service of the signed order on the Plaintiff as required for the Court’s order relieving counsel to be effective. The proof of service on August 31 pre-dates the Court’s signature and entry of the order; the signed order must be served, not merely a proposed order. (Order, ¶ 5a.) So, for the present, Plaintiff’s counsel remains counsel of record until proof of service of the signed order is served.

The second issue is that when the order relieving counsel is effective, the Court must have an address of record for the Plaintiff by which the Court can serve notices and can verify that service is made to an appropriate address. The space for the address in the signed order relieving counsel is redacted and there is no version in the Court’s file, under seal or otherwise, containing an address for the Plaintiff. When counsel is relieved, Plaintiff could address this by filing an appropriate form with the Court (e.g., Judicial Council form MC-040) and may include express authorization for electronic service (e.g., Judicial Council form EFS-005-CV). In any event, however, the Court must have a service address of record for the Plaintiff.

The third issue is that there is nothing in the Court’s records showing that the Plaintiff has been provided with the motion to compel. The motion to compel was filed and served after Plaintiff’s counsel filed their motion to be relieved, so there is nothing in that motion to reference the discovery motion. The motion to compel was properly served on Plaintiff’s counsel rather than on Plaintiff because Plaintiff’s counsel was then (and still remains) counsel of record. Plaintiff was not present at the August 30, 2023, hearing so would have no notice of the discovery motion from that hearing. There is nothing showing that the minute order from the August 30 hearing was served on Plaintiff. As discussed above, as far as the Court’s records show, the order granting Plaintiff’s counsel motion to be relieved was served on Plaintiff only as a proposed order. The proposed order mentions continuing “the hearing on the discovery motion” but neither identifies what orders are sought by that motion nor provides any basis for concluding that Plaintiff himself was provided any of those motion papers. This leaves open the question of whether Plaintiff has actual notice of the nature of the motion to compel or of the fact that he motion to compel seeks an award of monetary sanctions against the Plaintiff personally in the amount of $6,825.00.

The fourth issue is that Ellinwood has effectively made three separate motions that are combined into a single motion “to compel further discovery responses.” The motion seeks to compel further responses to three different sets of three different types of discovery: form interrogatories, special interrogatories, and requests for production of documents. Combining the text makes for a long separate statement, but is not improper. Even so, Ellinwood needs to pay three separate motion fees for three motions, regardless of whether the three motions are combined into a single document. “Every direction of a Court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.” (Code Civ. Proc., § 1003.) The “motion” requests separate orders for each of the three types of discovery and hence actually constitutes three separate motions. “Regardless of whether each motion or matter is heard at a single hearing or at separate hearings, the filing fees required by subdivisions (a), (c), (d), and (e) apply separately to each motion or other paper filed.” (Gov. Code, § 70617, subd. (f).) Consequently, before the Court can rule on the motions, assuming the other issues are addressed, Ellinwood needs to pay two additional filing fees.

The fifth issue is the nature of the responses to the discovery that are at issue in the motion to compel. It appears to the Court that the objection-only responses provided by Plaintiff’s counsel when the attorney-client relationship had broken down were intended principally to preserve objections so that new counsel for Plaintiff, or Plaintiff himself, would not be prejudiced when substantive responses were given. It should go without saying that objections must be substantiated to be effective and that the object of discovery is the communication of relevant or otherwise discoverable information from one side to the other. The Plaintiff (with or without new counsel) will need to evaluate the discovery and the responses carefully to determine what responses are legally appropriate and what responses, if any, need to be supplemented or revised.

To address these matters, the Court will require the parties to appear at the case management conference, but will continue the hearing on the motion to compel to permit sufficient time for these issues to be resolve. The Court will further order:

(1)       Counsel for Ellinwood shall serve this ruling on counsel for Plaintiff and shall additionally communicate to counsel for Plaintiff that counsel for Plaintiff remains counsel of record in this action, and is legally bound to act as counsel for Plaintiff, until proof of service on the Plaintiff of the signed order granting relief is filed with this Court. Counsel for Plaintiff shall file such proof of service on or before November 13, 2023, and shall concurrently communicate to counsel for Ellinwood that such proof of service has been filed.

(2)       Counsel for Ellinwood shall serve the motion to compel, including all supporting papers, on Plaintiff directly, together with a copy of this ruling. After counsel for Plaintiff files with the Court proof of service of the signed order granting their motion to be relieved as counsel, counsel for Ellinwood shall meet and confer with Plaintiff regarding the motion to compel. Counsel shall file and serve a supplemental meet and confer declaration complying with Code of Civil Procedure section 2016.040.

(3)       Counsel for Ellinwood shall pay to the Court the two unpaid additional filing fees for these motions on or before November 13, 2023, and shall file with the Court a declaration (which may be combined with the supplemental meet and confer declaration) stating that such fees have been filed.

(4)       Plaintiff shall file his response to the motion to compel based upon the continued hearing date.