Aug 12, 2020
Thursday, August 6, 2020, 2:30 p.m.
Courtroom 19 – Hon. Rene Chouteau via Zoom
(This calendar will be heard by Judge Chouteau in Courtroom 16.)
3055 Cleveland Avenue, Santa Rosa
In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility. Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom. No party or representative of a party may appear personally in Courtroom 19. CourtCall is not permitted for this calendar.
If the tentative ruling is accepted, no appearance is necessary via Zoom unless otherwise indicated.
D16 – Law & Motion, 2:30 p.m., Thursday
Meeting ID: 263 238 0666
Passcode: 002213
By Phone (use the Meeting ID and Password listed above):
+1 669 900 6833 US (San Jose)
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6602, and all other opposing parties of your intent to appear by 4:00 p.m. today, Wednesday, August 5, 2020. Parties in motions for claims of exemption are exempt from this requirement.
PLEASE NOTE: The Court WILL provide a Court Reporter for this calendar. If there are any concerns, please contact the Court at the number provided above.
1.         MCV-249073, Looney v. Lane
Plaintiff’s unopposed motion for appointment of receiver pursuant to Code of Civil Procedure section 708.630, and to appoint Michael Brewer as receiver is GRANTED.  The Court finds appointment of a receiver to seize and sell Defendant’s liquor license (number 417610) is warranted under the circumstances.  Based on Mr. Brewer’s declaration, the Court finds he is well-qualified to act as the receiver.  Mr. Brewer shall post an undertaking in the amount of $1,000 upon his appointment.
Plaintiff shall submit an order consistent with this ruling which details Mr. Brewer’s powers and duties.
2.         SCV-263490, Barnes v. Linnett Investment Holdings, LLC
John C. Miller Jr.’s motion to be relieved as Plaintiffs’ counsel is GRANTED.
Per Code of Civil Procedure section 284(2): “The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination...Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”
“[T]he determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. [Citation.] Where issues of confidentiality prevent ‘counsel from further disclosure and the court [accepts] the good faith of counsel's representations, the court should find the conflict sufficiently established and permit withdrawal.’ [Citations.]” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.)
Plaintiffs oppose this motion but the Court finds a conflict and irreparable breakdown in attorney-client communication has been sufficiently established based on the letter attached to Mr. Miller’s reply declaration, as well as Plaintiffs’ own representations in their opposition papers. Plaintiffs have ample time to retain new counsel to represent them in this matter as trial is not yet set and the case management conference was recently continued to November 19, 2020.
3.         SCV-265320, Bransford v. Cannacraft, Inc.
This matter is on calendar for the following discovery motions by Defendant CannaCraft, Inc. directed at Plaintiff Patrick R. Bransford (“Plaintiff”): 1) to compel responses to requests for admission and for sanctions; and 2) to compel responses to requests for production of documents and for the production of documents, to compel responses to special interrogatories, to compel responses to form interrogatories, and for sanctions. The motions pertain to CannaCraft’s Requests for Admission, Set No. 1 (“RFAs”), CannaCraft’s Special Interrogatories, Set No. 1 (“SIs”), CannaCraft’s Form Interrogatories, Set No. 1 (“FIs”), and CannaCraft’s Requests for Production of Documents, Set No. 1 (“RPODs”), all of which were served on February 28, 2020. Praetzellis Omnibus Decl. Exs. 1-4.
The Motions establish that Plaintiff requested and received extensions of time to respond to the discovery up to and including April 27, 2020. However, no responses to the foregoing discovery were served before the Motions were filed on May 21, despite CannaCraft’s counsel’s inquiry sent by email on May 5. Praetzellis Omnibus Decl. ¶¶ 3-10 & Ex. 5.  Plaintiff filed Oppositions and supporting Declarations by counsel, John Bauman, which contend that on July 22 and July 24, 2020 Plaintiff served responses to all of the outstanding discovery and that he produced documents.  Plaintiff contends that: 1) the Motions are moot because the responses are in substantial compliance with the Discovery Act and that the failure to timely comply was due to COVID-19 related disruptions of counsel’s personal and professional life; and 2) this relieves Plaintiff from waiver of the objections and an order deeming the RFAs admitted.  Plaintiff also argues that the imposition of sanctions would be unjust because CannaCraft’s Motions only seek sanctions against Plaintiff (and not counsel) but the failure to serve timely responses was counsel’s fault.  CannaCraft contends in its Reply briefs that Plaintiff failed to file his own motion for relief from waiver, that “even a cursory inspection” of the subject responses demonstrates that they are non-compliant with the Discovery Act, and that Plaintiff’s counsel’s declarations do not establish excusable neglect in any event.
The Court has the authority to hear the Motions notwithstanding the service of tardy responses. Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 409-410.  But as a practical matter, the belated responses (whether in substantial compliance or not) moot the motion to compel responses to the SIs, FIs, and RPODs, except with respect to CannaCraft’s request for sanctions. Responses to the RFAs must be in substantial compliance with California Code of Civil Procedure (“CCP”) section 2033.220 to avoid an order deeming them admitted pursuant to CCP § 2033.280(c).
The issue here is that the Court cannot evaluate the sufficiency of the late-served discovery responses because both of the Bauman Declarations filed on July 24, 2020 fail to attach the referenced exhibits, and the responses are not otherwise among the opposition papers.  The Praetzellis Omnibus Reply Declaration filed by CannaCraft on July 30 attaches correspondence between counsel, but not Plaintiff’s late-served discovery responses.
Based on the foregoing, these Motions are CONTINUED to Friday, October 16, 2020 at 2:30 p.m. in Department 17.  Plaintiff is ordered to file a corrected declaration attaching the referenced exhibits no later than August 12, 2020.
Furthermore, CannaCraft is correct that with respect to the RFAs, SIs, FIs, and RPODs, Plaintiff’s failure to serve timely objections automatically waived his objections.  Thus, if Plaintiff seeks to assert previously-waived objections to these requests, he is required to file his own regularly noticed motion for relief from waiver and establish in that motion that his subsequently-served responses are in substantial compliance with the Discovery Act and that his failure to serve timely responses was “the result of mistake, inadvertence, or excusable neglect.”  CCP §§ 2033.280(a) (requests for admission); 2030.290(a) (interrogatories); 2031.300(a) (requests for production); see also Weil & Brown, Civil Procedure Before Trial (Rutter Group 2020) ¶ 8:1023 (“A noticed motion for relief from waiver is required. (I.e., such relief cannot be granted ex parte, or where the only motion pending is a motion to compel.”) (emphasis in original).
The present Motions are not otherwise subject to a meet and confer requirement. However, in light of the fact that: belated responses were served; a continuance is warranted due to Plaintiff’s failure to attach the belated discovery responses; the responses were only recently served and therefore not the subject of a meet and confer; and the Opposition and Bauman Declarations are suggestive of excusable neglect (such that there may be a basis for granting relief from waiver), the parties are hereby ordered to meet and confer in a good faith attempt to resolve the foregoing Motions and forestall any potential motion(s) for relief from waiver which may otherwise be filed by Plaintiff.
The “central precept” of the discovery statutes “is that civil discovery be essentially self-executing.”  Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281.  The purpose of the meet and confer requirement is to force the parties and their lawyers to reexamine their positions and to narrow their discovery disputes to the irreducible minimum before calling upon the court to resolve the matter.  See, e.g. Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016-17 (meet and confer requirement is designed to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order).  “This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.”  Id.  (internal citation omitted). Thus, meeting and conferring “entails something more than bickering with [opposing counsel]” and in fact “requires that there be a serious effort at negotiation and informal resolution.”  Clement, 177 Cal.App.4th at 1281, citing Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1438-39. See also, In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537 (“We close this discussion with a reminder to counsel—all counsel, regardless of practice, regardless of age—that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. …Zeal and vigor in the representation of clients are commendable.  So are civility, courtesy, and cooperation.  They are not mutually exclusive.”)  In Townsend, the court “lamented the all too often interjection of ‘ego and emotions of counsel and clients’ into discovery disputes, warning that ‘[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement.’”  Clement, 177 Cal.App.4th at 1281 citing Townsend, 61 Cal.App.4th at 1436. 
Unless these Motions are taken off calendar before then, CannaCraft shall file a declaration, no later than October 2, 2020, describing the parties’ meet and confer efforts and setting forth what, if any, issues remain to be resolved in connection with the present Motions.  Taking the present Motions off calendar is not a concession that the subject responses (or any future supplemental responses which may be provided during the meet and confer process) are in full compliance and does not prejudice CannaCraft’s ability to move to compel further responses pursuant to the Discovery Act.
4.         SCV-265467, Pace Supply Corp. v. Alvarez
This matter is on calendar for Defendant’s motion to set aside a default judgment and for leave to file a stipulation to change venue. Defendant brings the motion under Code of Civil Procedure section 473.5 and on the grounds that he did not have actual notice of the lawsuit in time to defend. Defendant contends that although he had previously lived at the address were the complaint was served, Defendant had not lived there since 2016 and the person served was not Defendant. Thus, Defendant asks the Court to set aside the December 17, 2019 entry of default and the subsequent January 2, 2020 judgment against Defendant in the amount of $40,592.29.
Plaintiff opposes the motion. First, Plaintiff points out that Defendant improperly relies on Code of Civil Procedure section 473.5, which provides for relief from a default when proper service of the summons and complaint has not resulted in actual notice of the suit. By contrast, Code of Civil Procedure section 473(d) provides relief from a “void” judgment for lack of proper service. Second, Plaintiff attaches a proof of service signed by a registered process server, which demonstrates that Defendant was personally served with the summons and complaint on November 16, 2019 at 1:10 P.M. (See, Hatcher Dec. at Ex. B.) The complaint was served on defendant at the address of 2012 Junewood Avenue in San Jose because that address was listed as his physical business location pursuant to the records kept by the California Contractors State License Board. (Id. at Ex. C.) Third, Plaintiff submits evidence that Defendant acknowledged receipt of the summons and complaint multiple times in conversations with Plaintiff and Plaintiff’s counsel. (Id. at ¶8; see also, Ramierez-Diaz Dec. at ¶2 [“On November 21, 2019 [five days after service of the summons and complaint], I received a call from defendant acknowledging that he had been served with the complaint and asking if he could “make a deal to avoid going to Court.”].) Fourth, Plaintiff points out that Defendant’s “affidavit” in support of this motion is not made under “penalty of perjury” and thus, is not a proper declaration. Finally, Plaintiff avers that Defendant does not have a valid defense in this action. 
Defendant did not file a timely reply to address Plaintiff’s arguments.
After reviewing the parties’ briefs and supporting materials, Defendant’s motion to set aside the default judgment is DENIED. 
Code of Civil Procedure section 473.5 provides: “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (Code Civ. Proc., §473.5(a).) Section 473(d) provides in pertinent part: “[t]he court may...on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., §473(d).) If the summons and complaint are not properly served, as alleged in this case, relief from a default judgment should be sought under section 473(d) as “void” due to improper service. (See, Ellard v. Conway (2001) 94 Cal.App.4th 540, 544; see also, Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2016) §5:420.) Accordingly, Plaintiff is correct that Defendant should have brought this motion under section 473(d).
Nevertheless, under either statute, Defendant’s motion is insufficient to show that service of the complaint was improper or that it did not result in “actual notice” of the action. To start, a registered process server’s declaration of service establishes a rebuttable presumption of proper service shifting the burden of producing evidence of the facts stated in the declaration. (Evid. Code, §647; see also, Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Here, Plaintiff filed a proof of service with a declaration of service from a registered process server, stating that Defendant was personally served on November 16, 2019 at 1:10 P.M. (See, Hatcher Dec. at Ex. B.) This proof of service creates a rebuttable presumption that service was proper and shifts the burden to Defendant to prove otherwise. 
Defendant has failed to submit sufficient evidence that service was improper. As Plaintiff points out, Defendant’s affidavit was not signed under penalty of perjury. However, Defendant has submitted a sworn affidavit in lieu of a declaration under penalty of perjury, which is legally sufficient. Code of Civil Procedure section 2015.5. However, Defendant’s affidavit is not sufficient to rebut the presumption of proper service or to show that despite proper service, Defendant did not have “actual notice” of the action in time to file a response. In fact, Plaintiff has presented evidence to show that Defendant had actual notice of the action and acknowledged the complaint in a call with one of Plaintiff’s employees on November 21, 2019, i.e., five days after service. (Ramierez-Diaz Dec. at ¶2 [“On November 21, 2019, I received a call from defendant acknowledging that he had been served with the complaint and asking if he could ‘make a deal to avoid going to Court.’ He advised me that, if [Plaintiff] was not willing to make a deal, he would file bankruptcy and Pace would not get paid at all.”].) Defendant does not deny or contest this testimony.
Therefore, Defendant has not shown he is entitled to relief under section 473(d) or under section 473.5. Accordingly, the motion is denied.
Plaintiff’s counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court, rule 3.1312.
***This is the end of these tentative rulings.***
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