Peter Leroy Miller vs Samuel Gabriel Long, III et al

Case Number

23CV01649

Case Type

Hearing Date / Time

Fri, 05/17/2024 - 10:00

Nature of Proceedings

Motion to Be Relieved as Counsel; Motion to Compel

Tentative Ruling

(1) For all reasons discussed herein, the motions of attorney Jason P. Koch to be relieved as counsel for defendants and cross-complainants Samuel Gabriel Long III and Heather Veronica Gray are each ordered off-calendar.

(2) For all reasons discussed herein, the court continues the hearing on plaintiff’s motion to compel further production of documents directed to defendant Samuel Gabriel Long III, to July 29, 2024. On or before July 15, 2024, plaintiff and defendant shall each file and serve status reports in accordance with this ruling.  

(3) Plaintiff shall serve notice of the court’s ruling herein, including on defendant Samuel Gabriel Long III at all known addresses, and shall file a proof of service on or before May 24, 2024, in accordance with this ruling.

Background: 

This is an action for a partition by sale of two single-family residences located at 2535 De La Vina Street (the Vina Property) and 1708 Castillo Street (the Castillo Property) (collectively, the properties) in Santa Barbara, California. On April 28, 2023, plaintiff Peter Leroy Miller (Miller) filed a verified complaint against defendants Samuel Gabriel Long III (Long) and Heather Veronica Gray (Gray) (collectively, defendants), alleging that Long, who presently holds an undivided 15 percent interest in the Vina Property and a 50 percent interest in the Castillo Property, and Gray, who presently holds an undivided 15 percent interest in the Vina Property, have refused to sell or buy out Miller’s interests in the properties. (Compl., ¶¶ 1, 4-5, 17, 21, 35-37.)

Defendants filed their verified answer to the complaint on July 21, 2023. Also on July 21, 2023, defendants filed a cross-complaint against Miller alleging one cause of action for breach of contract arising from what defendants contend is a failure by Miller to uphold oral agreements relating to the management of and the sharing of expenses and repairs relating to the properties. (See Cross-Compl., ¶¶ 12-13 & 17-20.) Miller filed his answer to the cross-complaint of defendants on August 22, 2023.

Court records reflect that on August 28, 2023, Miller filed a motion for an interlocutory judgment of partition and the appointment of a referee with regard to the properties (the partition motion). Pursuant to a stipulation of the parties, the court entered an order on November 15, 2023, granting the partition motion as unopposed with respect to the Castillo Property and appointing a referee.

Court records further reflect that on November 28, 2023, Miller filed two separate motions for orders compelling Long and Gray to comply with an agreement to produce documents responsive to Miller’s set one request for production of documents (RFP) nos. 1 through 17, 20 through 40, 42, and 44 through 46 (the 2023 discovery motions). In each of the 2023 discovery motions, Miller requested an award of monetary sanctions against Long and Gray.

On December 26, 2023, the court entered an order also pursuant to a stipulation of the parties granting the partition motion as unopposed with respect to the Vina Property and appointing a referee.

On January 23, 2024, defendants caused to be filed a stipulation (the discovery stipulation) pursuant to which defendants agreed to produce to Miller documents responsive to RFP nos. 1 through 17, 20 through 40, 42, and 44 through 46, which are the same RFP at issue in the 2023 discovery motions, and to pay the amount of $2,0000 to Miller’s counsel for costs associated with the making of the 2023 discovery motions. (See Jan. 23, 2024, Stip., ¶¶ 1-2.) In the discovery stipulation, Miller agreed to withdraw the 2023 discovery motions after receipt from defendants of the documents and payment described in the stipulation. (Id. at ¶ 3.)

On January 23, 2024, the court entered an order on the discovery stipulation (the Discovery Order). (See Jan. 23, 2024, Order.) On January 29, 2024, Miller filed a notice of withdrawal of the 2023 discovery motions.

An interlocutory judgment of partition by sale and appointment of referee (the judgment) was entered on February 6, 2024.

On March 25, 2024, attorney Jason P. Koch (Koch), counsel of record for Long and Gray, filed two separate motions to be relieved as counsel for Long and counsel for Gray. In the declarations submitted in support of the motions to be relieved as counsel, Koch states that there has been an “irreconcilable breakdown” in the attorney-client relationship between counsel and each defendant, and that counsel believes a conflict has arisen between Long and Gray such that his continued representation of defendants would not be appropriate. (Koch Decls., ¶¶ 2.)

On March 29, 2024, Gray and Long each filed a substitution of attorney substituting themselves for Koch. On April 3, 2024, Gray filed a second substitution of attorney substituting attorney John J. Thyne, III, as her counsel of record.

On April 8, 2024, Miller filed a motion for an order compelling Long to comply with his agreement to produce all documents responsive to RFP Nos. 1 through 17, 20 through 40, 42, and 44 through 46 as stated in the discovery stipulation. In support of the present motion, Miller submits the declaration of his counsel, Katja M. Grosch, who declares that written responses to the RFP were provided by Long on October 24, 2023, but that Long did not at that time produce responsive documents. (Grosch Decl., ¶ 3 & Exh. 2.) Grosch also generally describes her efforts to meet and confer with Long regarding the document production following Long’s service of his responses to the RFP, and the filing of the 2023 discovery motions following counsel’s efforts. (Id. at ¶¶ 4-14 & Exh. 12.)

Grosch further declares that, after the entry of the Discovery Order, Long produced documents on January 26, 2024, and transmitted a check for Miller’s legal fees. (Grosch Decl., ¶ 18.) Grosch states that “over 1,000 pages were produced in the form of hundreds of separate files in multiple formats, named with apparently random numbers and letters instead of descriptive titles, lacking any Bates Numbering or other way to enable counsel to determine which documents are responsive to which, and which would take extensive time to review to determine if all responsive documents were actually produced. From the review done so far, it appears that many if not most categories were left out entirely, including bank statements covering the entire period and complete mortgage records.” (Id. at ¶ 19.) Based on Long’s promise to provide a supplemental production of documents, counsel withdrew the Long RFP motion. (Id. at ¶ 20.)

Between January 26 and March 20, 2024, the parties communicated regarding what Grosch describes as Long’s failure to timely produce all documents in response to the RFP “with the proper identifications as required by Code of Civil Procedure [section] 2031.280[, subd.] (a).” (Grosch Decl., ¶ 21 & Exh. 15.) Counsel for Long and Gray agreed to submit a supplemental document production by April 8, 2024, but failed to do so necessitating the present motion. (Id. at ¶¶ 23-25 & Exh. 17.)

Long has not filed an opposition to the present motion.

Analysis:

The motions to be relieved as counsel:
 

A substitution of an attorney in an action may be carried out “[u]pon the consent of both client and attorney, filed with the clerk, or entered upon the minutes” or “[u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284, subds. (1) & (2).) Though an attorney may not withdraw from a case without client consent, justifiable cause, proper notice, or leave of court, the filing and service of substitutions of attorney by both Long and Gray demonstrates that each has accepted and consented to the withdrawal and substitution of their counsel, Koch, from this matter. (See Carrara v. Carrara (1953) 121 Cal.App.2d 59, 62.) Court records further reflect that the substitutions of attorney filed by Long and Gray were served on each party to this action. (Code Civ. Proc., § 285.) For these reasons, the motions to be relieved as counsel filed by Koch are each moot. (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574.) Therefore, the court will order the motions to be relieved as counsel filed by Koch off-calendar.

The motion to compel further production of documents from Long:

The present motion of Miller to compel further production of documents from Long is brought under Code of Civil Procedure section 2031.320, which provides that a demanding party may move for an order compelling compliance upon a responding party’s failure to permit an inspection, copying, testing, or sampling in accordance with that party’s statement of compliance. (Code Civ. Proc., § 2031.320, subd. (a).) (Note: Undesignated code references shall be to the Code of Civil Procedure unless otherwise indicated.) Section 2031.320 further provides that if a party fails to obey an order compelling an inspection, copying, testing, or sampling, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2031.320, subd. (c).)

Miller contends that Long has failed to produce all documents as agreed to by Long and has failed to identify documents produced with the specific request number to which the documents respond. Miller also requests an award of monetary sanctions against Long in the amount of $1,785.

The court has no record of Long having filed any opposition to the motion. The court notes that the proof of service attached to the present motion indicates that the motion was served on Long in his self-represented capacity at the address identified in the substitution of attorney filed by Long by both electronic and regular mail. Though there is no information to demonstrate that Long affirmatively consented to electronic service of the present motion (see Cal. Rules of Court, rule 2.251(c)(3)(B), there is no information to suggest that Long was not effectively served with a copy of the present motion by mail.

Notwithstanding whether Long was served proper notice of the present motion, the Grosch declaration submitted in support of the present motion demonstrates that counsel communicated exclusively with Koch regarding what Miller contends is a deficient production of documents by Long. (See Grosch Decl., ¶¶ 21-23 & Exhs. 15-17.) During these communications, the bulk of which occurred before the filing by Koch of the motions to be relieved as counsel, Koch agreed to submit a supplemental document production by April 8, 2024, which fell after Koch sought to withdraw from this action. (Id. at ¶ 23 & Exh. 17.)

In addition, the Koch declarations in support of the motions to be relieved as defendants’ counsel, each of which were submitted 2 weeks prior to the filing of the present motion, reflects a breakdown in the relationship between defendants and Koch. It is unclear when the breakdown in the relationship between Long and Koch occurred and what, if any, impact that breakdown had on Long or Koch’s ability to address any outstanding discovery issues or prepare an opposition to the present motion. The court recognizes the impact that the breakdown in the attorney-client relationship may have had on Long’s ability to address the matters presented in, and to prepare and file opposition to, the present motion.

The evidence offered by Miller also demonstrates that on March 26, 2024, Grosch stated to Koch that “without your influence, I can’t see them complying anywhere short of a court order.” (Grosch Decl., Exh. 16.) The present motion was filed approximately one week after Long substituted himself for Koch as further discussed above. Though section 2031.320 does not require that Miller meet and confer with Long before filing a motion under that section, there is no information to demonstrate that, following the filing of the substitution of attorney further discussed above, Miller attempted to communicate with either Long in his self-represented capacity or with Gray’s new counsel, in an effort to informally resolve the issues presented in the motion. The court further notes that the deadline for Long to file papers opposing the present motion fell less than 2 weeks after the motion was filed and served by Miller, after Koch sought to withdraw as defendants’ counsel and after Long filed the substitution of attorney. (See Code Civ. Proc., § 1005, subd. (b).)

Moreover, though both Long and Gray signed the discovery stipulation agreeing to produce to Miller’s counsel documents responsive to the RFP at issue and though the Discovery Order applies to both Long and Gray, it is unclear why the present motion is brought only against Long and not Gray, who is presently represented by counsel, or whether Gray has in any respect complied with the discovery stipulation or Discovery Order thus mooting the present motion in whole or in part.

“[J]udges [] have the responsibility to eliminate delay in the progress and ultimate resolution of litigation, to assume and maintain control over the pace of litigation, to actively manage the processing of litigation from commencement to disposition, and to compel attorneys and litigants to prepare and resolve all litigation without delay, from the filing of the first document invoking court jurisdiction to final disposition of the action.” (Gov. Code, § 68607.) Accordingly, continuances are generally disfavored. (See Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 766.) On the other hand, judges “must abide by the guiding principle of deciding cases on their merits” and must determine whether a continuance is warranted “in an atmosphere of substantial justice.” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644.) “When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 718.)

Notwithstanding that the present motion appears to have been properly served on Long by mail, under the totality of the circumstances present here as further discussed above, it is unclear whether the breakdown described in the Koch declaration and the substitution of Koch impacted Long’s ability to address purportedly outstanding discovery issues described in the present motion or to file opposition to the motion, and to what extent Gray has or has not complied with the Discovery Order. Accordingly, there exist due process concerns. Therefore, for all reasons noted above, the court will continue the hearing on the present motion to allow Long sufficient time to locate new counsel.

The court will further order Miller to meet and confer with Long in his self-represented capacity or, if appropriate, any new counsel obtained by Long, and with Gray’s new counsel, to determine whether the issues presented in the motion can be resolved informally. The court will further order Miller to file and serve a status report describing his further efforts to informally resolve the issues presented in the motion and addressing what, if any, issues remain outstanding. The court will also order Long to file and serve a status report prior to the continued hearing describing his efforts to locate new counsel or whether Long intends to continue representing himself in this matter. Miller shall serve notice of this ruling on Gray and on Long in his self-represented capacity at all known addresses, and file a proof of service on or before May 24, 2024.