Marcus E. v. David Ellinwood, et al

Case Number

22CV05139

Case Type

Hearing Date / Time

Wed, 12/13/2023 - 10:00

Nature of Proceedings

Motion of Defendant David Ellinwood to Compel Further Responses to Discovery

Tentative Ruling

For Plaintiff Marcus E.: Self-represented

                                   

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

                  

RULING

For the reasons set forth herein, the motion of Defendant David Ellinwood to compel further response to written discovery is granted. On or before January 16, 2024, Plaintiff Marcus E. shall serve verified further responses to Defendant Ellinwood’s form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one, without objection except as to privilege and in a form complying with the Code of Civil Procedure. To the extent that Plaintiff withholds any information or documents on the grounds of privilege, Plaintiff shall concurrently serve a privilege log which shall identify each such piece of information, or each such document withheld, the privilege(s) asserted, and sufficient factual information for the Court to determine the claim of privilege specific to each withheld piece of information or document. The request for monetary sanctions is denied. Defendant shall serve notice of this order on Plaintiff.

Background

On December 29, 2022, Plaintiff Marcus E. 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 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 showed service by mail on the Plaintiff as “Marcus E.” with the mailing address redacted. Plaintiff’s counsel’s supporting declaration identified the March 6, 2024, case management conference and the June 26, 2024, trial date, but also stated 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 included 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 included redactions for Plaintiff’s last known address and telephone number. (Id. at ¶ 6.) This order noted 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 stated: “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. 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 on November 1. The case management statement shows service on Plaintiff by mail with an address.

On November 1, 2023, the Court held its initial hearing on this matter. The Court noted that there were procedural issues preventing the Court from resolving the motion to compel at that hearing. In particular, the Court noted the following:

(1)       There was no proof of service of the signed order relieving Plaintiff’s counsel. Filing proof of service was a condition precedent to the effectiveness of that order;

(2)       The Court had no address of record for the to-be-self-represented Plaintiff;

(3)       There was nothing in the Court’s record to show that Plaintiff had been provided with the motion to compel;

(4)       Moving party Ellinwood was effectively making three motions, but had paid only one motion fee; and,

(5)       Plaintiff needed to review prior-counsel’s objections to the discovery at issue and, as appropriate, to supplement or revise Plaintiff’s responses.

The Court made orders at the November 1 hearing to address these issues.

In response to the Court’s orders:

(1)       Counsel for Ellinwood timely served the Court’s order on prior counsel for Plaintiff. (Avila supp. decl., ¶ 3.)

(2)       Counsel for Ellinwood timely paid the two additional motion fees and filed notice of payment of such fees. (Avila supp. decl., ¶ 4.)

(3)       Counsel for Ellinwood served Plaintiff with the motion papers and the Court’s order. (Avila supp. decl., ¶ 5.)

(4)       Counsel for Ellinwood sent a meet and confer letter to Plaintiff (who was discovered then to be incarcerated) inviting Plaintiff to call and discuss the issues raised by the motion to compel. (Avila supp. decl., ¶¶ 5, 6.) As of November 20, 2023, Plaintiff has not contacted counsel for Ellinwood. (Avila supp. decl., ¶ 7.)

(5)       Former counsel for Plaintiff filed proof of service of the signed order relieving counsel, and the motion to compel papers, on Plaintiff.

On November 20, 2023, counsel for Ellinwood filed a supplemental declaration complying with the Court’s orders.

The Court’s order of November 1, 2023, set a deadline of November 30 for opposition to be filed to the motion to compel. No opposition or other response to the motion has been filed.

Analysis

Ellinwood’s motion seeks to compel further responses to: (1) form interrogatories, set one, (2) special interrogatories, set one, and (3) request for production of documents, set one.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: [¶] … [¶] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a)(3).)

The responses to both the form interrogatories and special interrogatories consist entirely of objections, including objections on the grounds of privilege.

“If only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered.” (Code Civ. Proc., § 2030.240, subd. (a).)

“If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.” (Code Civ. Proc., § 2030.240, subd. (b).)

“[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Plaintiff is the responding party against whom this motion has been made. Plaintiff has not filed any opposition or other response to this motion and therefore has failed to meet his burden to justify any of the objections to the interrogatories. The motion to compel will therefore be granted as to the interrogatories.

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] … [¶] (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

“A motion under subdivision (a) shall comply with each of the following: (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).)

In the separate statement filed in support of the motion, Ellinwood demonstrates that the discovery sought by the demand is relevant to the claims made by Plaintiff in his complaint. Ellinwood therefore has met his burden to show good cause justifying the discovery.

Plaintiff is the responding party against whom this motion has been made. Plaintiff has not filed any opposition or other response to this motion and therefore has failed to meet his burden to justify any of the objections to the request for production of documents. The motion to compel will therefore be granted as to the request for production of documents.

“The Court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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., § 2030.300, subd. (d); accord, § 2031.301, subd. (h) [requests for production of documents].)

“The Court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).) Plaintiff has not filed opposition to this motion.

Ellinwood requests monetary sanctions in the amount of $6,825.00, consisting of 18.2 hours of attorney time at $375 per hour. As discussed above with respect to the procedural history, the responses to the discovery consisted of objections prepared by counsel who has since been relieved as counsel. The monetary sanctions are not sought against counsel. (See Code Civ. Proc., § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought ….”].) Given the totality of circumstances here, the Court finds that the imposition of monetary sanctions against Plaintiff would be unjust. The request for monetary sanctions will therefore be denied.