ACCREDITED SURETY AND CASUALTY COMPANY, INC., A CORPORATION VS INFINITY DATA NETWORKS, INC., ET AL.

Tentative Rulings

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Case Number: 19STLC01556 Hearing Date: October 7, 2021 Dept: 25

PROCEEDINGS: MOTION\r\nFOR ORDER TO DISTRIBUTE THE INTERPLEADED FUNDS

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MOVING PARTY: Defendant\r\nBrian Gotterer

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RESP. PARTY: None

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MOTION TO DISTRIBUTE INTERPLEADED FUNDS

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(CCP § 386, et seq.)

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TENTATIVE RULING:

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Defendant\r\nBrian Gotterer’s Motion for Order to Distribute Interpleaded Funds is PLACED\r\nOFF CALENDAR.

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SERVICE: \r\n

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[X] Proof of Service Timely\r\nFiled (CRC, rule 3.1300) OK

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[X] Correct Address (CCP §§\r\n1013, 1013a) OK

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[X] 16/21 Court Days Lapsed\r\n(CCP §§ 12c, 1005(b)) OK

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OPPOSITION: None filed as of October 5,\r\n2021 [ ] Late [X]\r\nNone

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REPLY: None filed as\r\nof October 5, 2021 [ ] Late [X] None

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ANALYSIS:

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I. \r\nBackground\r\n& Discussion

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On February 14, 2019, Plaintiff Accredited Surety and\r\nCasualty Company, Inc. (“Plaintiff”) filed this action for indemnity,\r\nreimbursement, and interpleader against Defendants Infinity Data Networks, Inc.\r\ndba Infinity General Contractors Group (“Infinity”), Martin Ahlgrim\r\n(“Ahlgrim”), Brandon Joseph Bujold, individually and dba TMK Construction\r\n(“Bujold”), and Brian Gotterer (“Gotterer”).

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Following Defendant Infinity and Defendant Ahlgrim’s\r\nfailure to file a responsive pleading, default was entered against them on May\r\n31, 2019. Default was also entered against Defendant Bujold on June 25, 2019.

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Plaintiff filed a motion to deposit and for discharge of\r\nstakeholder on June 12, 2019. That motion was granted on September 11, 2019 on\r\nthe condition that within thirty (30) days, Plaintiff deposit surplus funds of\r\n$13,000.00 with the Court. (9/11/19 Minute Order.) Funds of $13,000.00 were\r\ndeposited on October 8, 2019.

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On November 6, 2019, the Court signed an order pursuant\r\nto the parties’ stipulation setting aside the default entered against\r\nDefendants Infinity and Ahlgrim and permitting them to file an answer within 20\r\ndays. (11/6/20 Order.) On November 27, 2019, Defendants Infinity and Ahlgrim\r\nfiled a joint general denial. Defendant Infinity filed a Cross-Complaint\r\nagainst Plaintiff, Defendant Bujold, and Defendant Gotterer on December 4, 2019\r\nfor breach of contract and declaratory relief. Defendant Gotterer also filed a\r\nCross-Complaint against Infinity on January 2, 2020 for breach of contract and\r\nnegligence.

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A hearing on the disbursement of funds was scheduled for\r\nJanuary 15, 2020. After conferring with counsel for Plaintiff and Defendants,\r\nthe Court ruled that the matter would proceed to trial. (1/15/20 Minute Order.)\r\n

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Defendant Infinity’s former counsel, Kevin R. Carlin\r\n(“Carlin”), filed a motion to be relieved as counsel on July 10, 2020, which\r\nwas granted on December 9, 2020. (12/9/20 Minute Order.) Carlin filed a proof\r\nof service demonstrating the parties to this action, including Defendant\r\nInfinity itself, were given notice of the Court’s December 9, 2020 Order via\r\nregular mail and email. (12/10/20 Proof of Service.)

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Defendant Gotterer filed a motion to expunge mechanic’s\r\nlien and for an award of attorney’s fees on January 4, 2021. After hearing oral\r\narguments from Defendant Gotterer’s counsel and taking the matter under submission\r\non April 14, the Court denied that motion. (4/19/19 Minute Order.) The Court\r\nreasoned that the motion was procedurally improper because Civil Code section\r\n8480 does not permit a motion for a release order to be joined with any pending\r\naction other than a pending action to enforce a mechanic’s lien. (Id.)

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Pursuant to Plaintiff’s request, Defendants Infinity and\r\nMartin were dismissed from the Complaint on June 18, 2021. (6/15/21 Request for\r\nDismissal.)

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Defendant Gotterer filed the instant Motion for Order to\r\nDistribute the Interpleaded Funds (the “Disbursement Motion”) on July 12, 2021.\r\nThe following day, Defendant Gotterer filed a motion to strike the answer and\r\ndismiss the Cross-Complaint filed by Defendant Infinity. No oppositions were\r\ninitially filed.

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The instant Disbursement Motion and the motion to strike\r\ncame up for hearing on September 7. (9/7/21 Minute Order.) At that time, the\r\nCourt granted Defendant Gotterer’s motion to strike Defendant Infinity’s answer\r\nand dismiss its Cross-Complaint. (Id.) The Court also continued the\r\nhearing on Defendant Gotterer’s Disbursement Motion. (Id.) In doing so,\r\nthe Court reasoned that, although Defendant Gotterer was the only remaining\r\npotential claimant to the subject interpleaded funds, he was still required to\r\ndemonstrate he was entitled to those funds. (Id.) Defendant Gotterer’s\r\nDisbursement Motion, however, was not supported by any documentary evidence. (Id.)\r\nThe hearing was continued to October 7 to allow Defendant Gotterer to submit\r\ndocumentary evidence in support of his claim. (Id.)

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On September 21, default was entered against\r\nCross-Defendant Infinity as to the Cross-Complaint filed by Defendant Gotterer.\r\n(9/21/21 Minute Order.)

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However, Defendant Gotterer has not filed any\r\nsupplemental papers in support of the Disbursement Motion as requested at the\r\nSeptember 7 hearing. Accordingly, the Disbursement Motion is PLACED OFF\r\nCALENDAR.

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II. \r\nConclusion\r\n& Order

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For the foregoing reasons, Defendant Brian Gotterer’s Motion for Order\r\nto Distribute Interpleaded Funds is PLACED OFF CALENDAR.

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Moving party is ordered to give\r\nnotice.

'b'

Case Number: 19STLC01556\t Hearing Date: September 7, 2021 Dept: 25

PROCEEDINGS: (1)\r\nMOTION FOR ORDER STRIKING ANSWER AND DISMISSING CROSS-COMPLAINT OF INFINITY\r\nDATA NETWORKS, INC.

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(2)\r\nMOTION FOR ORDER TO DISTRIBUTE THE INTERPLEADED FUNDS

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MOVING PARTY: Defendant\r\nBrian Gotterer

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RESP. PARTY: None

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MOTION TO STRIKE; MOTION TO DISTRIBUTE INTERPLEADED FUNDS

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(CCP §§ 386; 435; 436)

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TENTATIVE RULING:

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Defendant\r\nBrian Gotterer’s (1) Motion for Order Striking Answer and Dismissing\r\nCross-Complaint is GRANTED. Defendant Infinity Data Networks, Inc.’s\r\nCross-Complaint filed on December 4, 2019 and Answer to Defendant Gotterer’s\r\nCross-Complaint filed on February 4, 2020 are HEREBY STRICKEN.

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Defendant’s\r\n(2) Motion for Order to Distribute Interpleaded Funds is CONTINUED TO OCTOBER\r\n7, 2021 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At\r\nleast 16 court days before the next scheduled hearing, Defendant Gotterer must\r\nfile and serve supplemental papers as requested herein. Failure to do so may\r\nresult in this Motion being placed off calendar or denied.

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SERVICE: \r\n

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[X] Proof of Service Timely\r\nFiled (CRC, rule 3.1300) OK

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[X] Correct Address (CCP §§\r\n1013, 1013a) OK

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[X] 16/21 Court Days Lapsed\r\n(CCP §§ 12c, 1005(b)) OK

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OPPOSITION: None filed as of August\r\n30, 2021 [ ] Late [X]\r\nNone

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REPLY: None filed as of\r\nAugust 30, 2021 [ ] Late [X] None

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ANALYSIS:

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I. \r\nBackground

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On February 14, 2019, Plaintiff Accredited Surety and\r\nCasualty Company, Inc. (“Plaintiff”) filed this action for indemnity,\r\nreimbursement, and interpleader against Defendants Infinity Data Networks, Inc.\r\ndba Infinity General Contractors Group (“Infinity”), Martin Ahlgrim\r\n(“Ahlgrim”), Brandon Joseph Bujold, individually and dba TMK Construction\r\n(“Bujold”), and Brian Gotterer (“Gotterer”).

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Following Defendant Infinity and Defendant Ahlgrim’s\r\nfailure to file a responsive pleading, default was entered against them on May\r\n31, 2019. Default was also entered against Defendant Bujold on June 25, 2019.

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Plaintiff filed a motion to deposit and for discharge of\r\nstakeholder on June 12, 2019. That motion was granted on September 11, 2019 on\r\nthe condition that within thirty (30) days, Plaintiff deposit surplus funds of\r\n$13,000.00 with the Court. (9/11/19 Minute Order.) Funds of $13,000.00 were\r\ndeposited on October 8, 2019.

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On November 6, 2019, the Court signed an order pursuant\r\nto the parties’ stipulation setting aside the default entered against\r\nDefendants Infinity and Ahlgrim and permitting them to file an answer within 20\r\ndays. (11/6/20 Order.) On November 27, 2019, Defendants Infinity and Ahlgrim\r\nfiled a joint general denial. Defendant Infinity filed a Cross-Complaint\r\nagainst Plaintiff, Defendant Bujold, and Defendant Gotterer on December 4, 2019\r\nfor breach of contract and declaratory relief. Defendant Gotterer also filed a\r\nCross-Complaint against Infinity on January 2, 2020 for breach of contract and\r\nnegligence.

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A hearing on the disbursement of funds was scheduled for\r\nJanuary 15, 2020. After conferring with counsel for Plaintiff and Defendants,\r\nthe Court ruled that the matter would proceed to trial. (1/15/20 Minute Order.)\r\n

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Defendant Infinity’s former counsel, Kevin R. Carlin\r\n(“Carlin”), filed a motion to be relieved as counsel on July 10, 2020, which\r\nwas granted on December 9, 2020. (12/9/20 Minute Order.) Carlin filed a proof\r\nof service demonstrating the parties to this action, including Defendant\r\nInfinity itself, were given notice of the Court’s December 9, 2020 Order via\r\nregular mail and email. (12/10/20 Proof of Service.)

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Defendant Gotterer filed a motion to expunge mechanic’s\r\nlien and for an award of attorney’s fees on January 4, 2021. After hearing oral\r\narguments from Defendant Gotterer’s counsel and taking the matter under submission\r\non April 14, the Court denied that motion. (4/19/19 Minute Order.) The Court\r\nreasoned that the motion was procedurally improper because Civil Code section\r\n8480 does not permit a motion for a release order to be joined with any pending\r\naction other than a pending action to enforce a mechanic’s lien. (Id.)

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Pursuant to Plaintiff’s request, Defendants Infinity and\r\nMartin were dismissed from the Complaint on June 18, 2021. (6/15/21 Request for\r\nDismissal.)

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Defendant Gotterer filed the instant Motion for Order to\r\nDistribute the Interpleaded Funds (the “Disbursement Motion”) on July 12, 2021.\r\nThe following day, Defendant Gotterer filed the instant Motion for Order\r\nStriking Answer and Dismissing Cross-Complaint of Infinity Data Networks, Inc.\r\n(the “Motion to Strike”). No opposition briefs were filed.

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II. \r\nRequest\r\nfor Judicial Notice

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Defendant Gotterer requests judicial notice of (1) the\r\nComplaint filed by Plaintiff on February 14, 2019; (2) the Answer filed by\r\nDefendant Gotterer to Plaintiff’s Complaint on May 1, 2019; (3) the Court’s\r\nSeptember 11, 2019 Minute Order on Plaintiff’s motion to deposit by\r\nstakeholder; and (4) the request for dismissal filed by Plaintiff as to\r\nDefendants Infinity and Ahlgrim on June 15, 2021. (Disb. Mot., RJN, ¶¶ 1-4.)

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Defendant’s request is GRANTED. (Evid. Code, § 452, subd.\r\n(d).)

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III. \r\nMotion\r\nto Strike

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A. Legal Standard

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California law authorizes a party’s motion to strike\r\nmatter from an opposing party’s pleading if it is irrelevant, false, or\r\nimproper. (Code Civ. Proc. §§ 435; 436, subd. (a).) Motions may also target\r\npleadings or parts of pleadings that are not filed or drawn in conformity with\r\napplicable laws, rules, or orders. (Code Civ. Proc. § 436, subd. (b).) However,\r\nmotions to strike in limited jurisdiction courts may only challenge pleadings\r\non the basis that “the damages or relief sought are not supported by the allegations\r\nof the complaint.” (Code Civ. Proc. § 92, subd. (d).) The Code of Civil Procedure also authorizes the Court to act on its own\r\ninitiative to strike matters, empowering the Court to enter orders striking\r\nmatter “at any time in its discretion, and upon terms it deems proper.” (Code\r\nCiv. Proc. § 436.)

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Finally, Code of Civil Procedure section 435.5 requires\r\nthat “[b]efore filing a motion to strike pursuant to this chapter, the moving\r\nparty shall meet and confer in person or by telephone with the party who filed\r\nthe pleading that is subject to the motion to strike for the purpose of\r\ndetermining whether an agreement can be reached that resolves the objections to\r\nbe raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).)

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B. Discussion

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Defendant Gotterer moves to strike Defendant Infinity’s\r\nAnswer and Cross-Complaint due to its failure to timely retain new counsel and\r\nfor a delay in prosecution. (Mot. to Strike, p. 2.)

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Defendant Infinity is a corporation.\r\nAs Defendant Gotterer points out, a\r\ncorporation may not appear in court except through licensed counsel. Since the\r\npassage of the State Bar Act in 1927, persons may represent their own interests\r\nin legal proceedings, but may not represent the interests of another unless\r\nthey are active members of the State Bar. [Citation.]” (Hansen v. Hansen\r\n(2003) 114 Cal.App.4th 618, 621.) An entity must be represented by a lawyer in\r\nlegal proceedings and may not represent itself (either directly or through a\r\nnon-lawyer agent) in litigation, as such an act would be the unauthorized\r\npractice of law. (See e.g. Caressa Camille, Inc. v. Alcoholic Beverage\r\nControl Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101) (corporation); Albion\r\nRiver Watershed Protection Ass’n v. Department of Forestry & Fire\r\nProtection (1993) 20 Cal. App. 4th 34, 37 (unincorporated association); Aulisio\r\nv. Bancroft (2014) 230 Cal. App. 4th 1518, 1519-20 (trustee for trust).

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Here,\r\nDefendant Infinity has been on notice since July 2020 that its former counsel\r\nCarlin sought to be relieved. Carlin also gave Defendant Infinity proper notice\r\nof the Court’s order granting its motion to be relieved. (12/10/20 Proof of Service.) Despite\r\nhaving ample opportunity, Defendant Infinity appears to have not yet retained\r\nnew counsel as it has not filed a substitution of attorney. Defendant Infinity\r\nalso did not file any papers in opposition to this Motion to Strike.

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Accordingly, Defendant Infinity’s\r\nCross-Complaint filed on December 4, 2019 and its Answer to Defendant\r\nGotterer’s Cross-Complaint filed on February 4, 2020 are HEREBY STRICKEN.

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IV. \r\nMotion\r\nto Distribute Interpleaded Funds

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A. Legal Standard

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In an interpleader action, the Court first determines the\r\nright of the plaintiff to interplead the funds. (Southern California Gas Co.\r\nv. Flannery (2014) 232 Cal.App.4th 477, 487.) Once the Court determines\r\nthat the plaintiff does indeed have a right to interplead the funds, the\r\nparties must litigate their claims to the funds. (Id.) In the second\r\nphase of the interpleader procedure, the trial court has power under Code of\r\nCivil Procedure section 386 to adjudicate the issues raised in the interpleader\r\naction including (1) the existence of conflicting claims; (2) the plaintiff’s\r\nalleged position as a disinterested stakeholder; and (3) the disposition of the\r\ninterpleaded funds minus plaintiff’s attorney’s fees. (Id.)

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B. Discussion

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In his Motion, Defendant Gotterer argues that because\r\nDefendant Bujold defaulted on June 25, 2019 and Defendants Infinity and Ahlgrim\r\nwere dismissed on June 18, 2021, he is the only one entitled to make a claim on\r\nthe interpleaded funds. (Disb. Mot., pp. 5-6.) He also argues that he filed an\r\nanswer to the interpleader Complaint on May 1, 2019 asserting his claim to the\r\nfunds. (Id.) The Motion is supported by a request for judicial notice\r\nand Defendant Gotterer’s declaration, stating that (1) he entered into a\r\nwritten agreement for certain home improvement work with Defendant Infinity on\r\nOctober 13, 2017; (2) that during the renovation process, Defendant Gotterer\r\nbecame aware the work was subpar and not according to the standards set forth\r\nin their agreement; (3) that Defendant Infinity breached their agreement; and\r\n(4) that Defendant Infinity’s breach of the agreement resulted in damages of at\r\nleast $128,414.99. (Id. at p. 6, Gotterer Decl., ¶¶ 4-9.) Defendant\r\nGotterer seeks the distribution of the full $13,000.00 deposited with the\r\nCourt. (Id.)

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Although Defendant Gotterer is the only remaining\r\npotential claimant to the subject interpleaded funds, he must still demonstrate\r\nhe is entitled to those funds. Defendant Gotterer did not support his claim\r\nwith any documentary evidence. For this reason, he has not demonstrated he is\r\nentitled to the surplus funds.

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Thus the hearing is CONTINUED so\r\nthat Defendant Gotterer may submit supporting documentary evidence\r\ndemonstrating he is entitled to the disbursement of interpleaded funds.

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V. \r\nConclusion\r\n& Order

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For the foregoing reasons, Defendant Brian Gotterer’s (1) Motion for\r\nOrder Striking Answer and Dismissing Cross-Complaint is GRANTED. Defendant\r\nInfinity Data Networks, Inc.’s Cross-Complaint filed on December 4, 2019 and\r\nAnswer to Defendant Gotterer’s Cross-Complaint filed on February 4, 2020 are\r\nHEREBY STRICKEN.

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Defendant’s\r\n(2) Motion for Order to Distribute Interpleaded Funds is CONTINUED TO OCTOBER\r\n7, 2021 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At\r\nleast 16 court days before the next scheduled hearing, Defendant Gotterer must\r\nfile and serve supplemental papers as requested herein. Failure to do so may\r\nresult in this Motion being placed off calendar or denied.

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Moving party is ordered to give\r\nnotice.

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Case Number: 19STLC01556    Hearing Date: April 14, 2021    Dept: 25

HEARING DATE: Wed., April 14, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Accredited Surety & Casualty Company, Inc. v. Infinity Data Networks, Inc. et al.

CASE NUMBER: 19STLC01556 COMPL. FILED: 02-14-19

PROCEEDINGS: MOTION TO EXPUNGE MECHANIC’S LIEN AND FOR AWARD OF ATTORNEY’S FEES

MOVING PARTY: Defendant, Cross-Defendant, and Cross-Complainant Brian Gotterer

RESP. PARTY: None

MOTION TO RELEASE MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

Defendant, Cross-Defendant, and Cross-Complainant Brian Gotterer’s Motion to Expunge Mechanic’s Lien and for Award of Attorney’s fees is DENIED WITHOUT PREJUDICE.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of April 12, 2021 [ ] Late [X] None

REPLY: None filed as of April 12, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On February 14, 2019, Plaintiff Accredited Surety and Casualty Company, Inc. (“Plaintiff”) filed this action for indemnity, reimbursement, and interpleader against Defendants Infinity Data Networks, Inc. dba Infinity General Contractors Group (“Infinity”), Martin Ahlgrim (“Ahlgrim”), Brandon Joseph Bujold, individually and dba TMK Construction (“Bujold”), and Brian Gotterer (“Gotterer”).

Following Defendant Infinity and Defendant Ahlgrim’s failure to file a responsive pleading, default was entered against them on May 31, 2019. Default was also entered against Defendant Bujold on June 25, 2019.

Plaintiff filed a motion to deposit and for discharge of stakeholder on June 12, 2019. That motion was granted on September 11, 2019 on the condition that within thirty (30) days, Plaintiff deposit surplus funds of $13,000.00 with the Court. (9/11/19 Minute Order.) Funds of $13,000.00 were deposited on October 8, 2019.

On November 6, 2019, the Court signed an order pursuant to the parties’ stipulation that the default against Infinity and Ahlgrim be set aside and that they be permitted an opportunity to file an answer within 20 days of the order. (11/6/20 Order.) On November 27, 2019, Defendants Infinity and Ahlgrim filed a joint general denial. Defendant Infinity filed a Cross-Complaint against Plaintiff, Defendant Bujold, and Defendant Gotterer on December 4, 2019 for breach of contract and declaratory relief. Defendant Gotterer also filed a Cross-Complaint against Infinity on January 2, 2020 for breach of contract and negligence.

A hearing on the disbursement of funds was scheduled for January 15, 2020. After conferring with the parties, the Court ruled that the matter would proceed to trial. (1/15/20 Minute Order.)

Defendant Infinity’s former counsel, Kevin R. Carlin (“Carlin”), filed a motion to be relieved as counsel on July 10, 2020, which was granted on December 9, 2020. (12/9/20 Minute Order.) Carlin filed a proof of service demonstrating the parties to this action, including Defendant Infinity, were given notice of the Court’s December 9, 2020 Order via regular mail and email. (12/10/20 Proof of Service.)

Defendant Gotterer filed the instant Motion to Expunge Mechanic’s Lien and for Award of Attorney’s Fees (the “Motion”) on January 4, 2021. No opposition was filed.

1. Legal Standard

After a mechanic’s lien has been recorded, “[t]he owner of property or the owner of any interest in property subject to a claim of lien may petition the court for an order to release the property from the claim of lien if the claimant has not commenced an action to enforce the lien within the time provided in Section 8460.” (Civ. Code, § 8480, subd. (a).) A claimant must commence an action to enforce a lien within 90 days of recording the lien. (Civ. Code, § 8460, subd. (a).) Section 8460 further provides that “[i]f the claimant does not commence an action to enforce the lien within that time, the claim of lien expires and is unenforceable.” (Civ. Code, § 8460, subd. (a).) Section 8460 also provides that the 90-day time limit to commence an action to enforce a lien does not apply if there was an agreement to extend credit and a notice of that fact was recorded within 90 days after recordation of the claim of lien or more than 90 days after recordation of the claim of lien but before a purchaser or encumbrancer for value and in good faith acquires rights in the property. (Civ. Code, § 8460, subd. (b).)

1. Discussion

A. Procedural Propriety

As an initial matter, the Court examines whether Defendant Gotterer’s Motion to release property from Defendant Infinity’s mechanic’s lien is procedurally proper.

As noted above, Civil Code section 8480 permits a property owner to petition the court for an order releasing their property from a mechanic’s lien if no action to enforce the lien has been commenced within 90 days of recording said mechanic’s lien. (Civ. Code, §§ 8460, subd. (a); 8480, subd. (a).)

Section 8480 does not bar any other cause of action or claim for relief by a property owner. (Civ. Code, § 8480, subd. (b).) “A release order does not bar any other cause of action or claim for relief by the claimant, other than an action to enforce the claim of lien that is the subject of the release order.” (Id.)

Section 8480 also permits a petition for a release order to be joined with a “pending action to enforce the claim of lien that is the subject of the petition.” (Civ. Code, § 8480, subd. (c).) (Emphasis added.) However, “[n]o other action or claim for relief may be joined with a petition under this article.” (Id.) (Emphasis added.) In sum, the relevant statutory provisions do not permit a request to release property from a mechanic’s lien to be combined with any action other than a pending action to enforce a claim of lien.

Here, Defendant Gotterer’s filing of the instant Motion to release property from Defendant Infinity’s mechanic’s lien is procedurally improper as it was combined with this action which does not seek to enforce the subject mechanic’s lien. This petition for relief must be separately filed. Accordingly, the Motion is DENIED WITHOUT PREJUDICE.

1. Conclusion & Order

For the foregoing reasons, Defendant, Cross-Defendant, and Cross-Complainant Brian Gotterer’s Motion to Expunge Mechanic’s Lien and for Award of Attorney’s fees is DENIED WITHOUT PREJUDICE.

Moving party is ordered to give notice.

Case Number: 19STLC01556    Hearing Date: December 09, 2020    Dept: 25

HEARING DATE: Wed., December 9, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Accredited Surety & Casualty Co. Inc. v. Infinity Data Networks, Inc., et al.

CASE NUMBER: 19STLC01556 COMPL. FILED: 02-14-19

NOTICE: OK DISC. C/O: 05-20-21

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Defendant/Cross-Complainant Infinity Data Networks Inc.’s Counsel Kevin R. Carlin

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2); CRC rule 3.1362)

TENTATIVE RULING:

Defendant/Cross Complainant Infinity Data Networks, Inc.’s Counsel Kevin R. Carlin’s Motion to be Relieved as Counsel is GRANTED and the proposed order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Defendant Infinity] has been filed with the court.” (Id.)

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of December 7, 2020 [ ] Late [X] None

REPLY: None filed as of December 7, 2020 [ ] Late [X] None

ANALYSIS:

1. Background & Discussion

On February 14, 2019, Plaintiff Accredited Surety and Casualty Company, Inc. (“Plaintiff”) filed this action for indemnity, reimbursement, and interpleader against Defendants Infinity Data Networks, Inc. dba Infinity General Contractors Group (“Infinity”), Martin Ahlgrim (“Ahlgrim”), Brandon Joseph Bujold, individually and dba TMK Construction (“Bujold”), and Brian Gotterer (“Gotterer”).

Following Defendant Infinity and Defendant Ahlgrim’s failure to file a responsive pleading, default was entered against them on May 31, 2019.

Plaintiff filed a motion to deposit and for discharge of stakeholder on June 12, 2019. That motion was granted on September 11, 2019 on the condition that within thirty (30) days, Plaintiff deposit surplus funds of $13,000.00 with the Court. (9/11/19 Minute Order.) Funds of $13,000.00 were deposited with the Court on October 8, 2019.

On November 6, 2019, the Court signed an order pursuant to the parties’ stipulation that the default against Infinity and Ahlgrim be set aside and that they file an answer within 20 days of the order. (11/6/20 Order.) On November 27, 2019, Defendants Infinity and Ahlgrim filed a joint general denial. Defendant Infinity filed a Cross-Complaint against Plaintiff, Defendant Bujold, and Defendant Gotterer on December 4, 2019. Defendant Gotterer also filed a Cross-Complaint against Infinity on January 2, 2020 for breach of contract and negligence.

On July 10, 2020, Defendant Infinity’s Counsel Kevin R. Carlin (“Counsel”) of the Carlin Law Group, APC filed the instant Motion to be Relieved as Counsel (the “Motion”). The Court scheduled the Motion for hearing for September 30, 2020 at 10:00 a.m. and ordered Counsel to give notice. (7/10/20 Minute Order.)

At the initial September 30, 2020 hearing, the Court found it was satisfied with Counsel’s reasons for seeking to be relieved. (9/30/20 Minute Order.) Although the Court was inclined to grant the Motion, it noted that Counsel did not give Defendant Infinity notice of the Court’s July 10^th Order scheduling the hearing. (Id.) Thus, the matter was continued to November 17 at 10:00 a.m. and Counsel was ordered to give Defendant notice of the next hearing. (Id.) That same day, Counsel refiled the Motion with an updated hearing date with a proof of service demonstrating Defendant Infinity and all parties in this action were served with the Amended Motion. (9/30/20 Proof of Service.)

On November 12, 2020, the Court, on its own motion, continued the hearing to December 9, 2020 at 11:00 a.m. and ordered Counsel to give notice. (11/12/20 Minute Order.) On November 16, 2020, Counsel filed a proof of service demonstrating it gave Defendant Infinity and the other parties notice of the November 12^th continuance. (11/16/20 Proof of Service.)

Defendant Infinity did not file an opposition.

As Counsel has now addressed the Court’s concerns regarding notice, the unopposed Motion is GRANTED.

1. Conclusion & Order

For the foregoing reasons, Defendant/Cross Complainant Infinity Data Networks, Inc.’s Counsel Kevin R. Carlin’s Motion to be Relieved as Counsel is GRANTED and the proposed order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Defendant Infinity] has been filed with the court.” (Id.)

Defendant Infinity’s Counsel is ordered to give notice.

Case Number: 19STLC01556    Hearing Date: September 30, 2020    Dept: 25

HEARING DATE: Wed., September 30, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Accredited Surety & Casualty Co. Inc. v. Infinity Data Networks, Inc., et al.

CASE NUMBER: 19STLC01556 COMPL. FILED: 02-14-19

NOTICE: NO (hearing) DISC. C/O: 09-26-20

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Defendant/Cross-Complainant Infinity Data Networks Inc.’s Counsel Kevin R. Carlin

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2); CRC rule 3.1362)

TENTATIVE RULING:

Defendant/Cross Complainant Infinity Data Networks, Inc.’s Counsel Kevin R. Carlin’s Motion to be Relieved as Counsel is GRANTED ON THE CONDITION THAT, before the hearing, Counsel files a proof of service demonstrating he gave Defendant Infinity proper notice of the July 10^th Order scheduling this hearing. If granted, the proposed order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Defendant Infinity] has been filed with the court.” (Id.)

Otherwise, the Motion will be CONTINUED TO NOV 17, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Counsel must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of September 28, 2020 [ ] Late [X] None

REPLY: None filed as of September 28, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On February 14, 2019, Plaintiff Accredited Surety and Casualty Company, Inc. (“Plaintiff”) filed this action for indemnity, reimbursement, and interpleader against Defendants Infinity Data Networks, Inc. dba Infinity General Contractors Group (“Infinity”), Martin Ahlgrim (“Ahlgrim”), Brandon Joseph Bujold, individually and dba TMK Construction (“Bujold”), and Brian Gotterer (“Gotterer”).

Following Defendant Infinity and Defendant Ahlgrim’s failure to file a responsive pleading, default was entered against them on May 31, 2019.

Plaintiff filed a motion to deposit and for discharge of stakeholder on June 12, 2019. That motion was granted on September 11, 2019 on the condition that within thirty (30) days, Plaintiff deposit surplus funds of $13,000.00 with the Court. (9/11/19 Minute Order.) Funds of $13,000.00 were deposited with the Court on October 8, 2019.

On November 6, 2019, the Court signed an order pursuant to the parties’ stipulation that the default against Infinity and Ahlgrim be set aside and that they file an answer within 20 days of the order. (11/6/20 Order.) On November 27, 2019, Defendants Infinity and Ahlgrim filed a joint general denial. Defendant Infinity filed a Cross-Complaint against Plaintiff, Defendant Bujold, and Defendant Gotterer on December 4, 2019. Defendant Gotterer also filed a Cross-Complaint against Infinity on January 2, 2020 for breach of contract and negligence.

On July 10, 2020, Defendant Infinity’s Counsel Kevin R. Carlin (“Counsel”) of the Carlin Law Group, APC filed the instant Motion to be Relieved as Counsel (the “Motion”). The Court scheduled the Motion for hearing for September 30, 2020 at 10:00 a.m. and ordered Counsel to give notice. (7/10/20 Minute Order.)

To date, no opposition has been filed.

1. Legal Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc., § 284(2).) “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.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362(a), (c), (e).)

In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either:

(A) The service address is the current residence or business address of the client; or

(B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.

(Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).)

1. Discussion

Defendant Infinity’s Counsel seeks to be relieved because it has refused to consent to substitution, is not adequately or timely communicating with Counsel, and because there is a conflict of interest between the attorney and client (MC-052, ¶ 2.) Counsel also states that Defendant Infinity has not complied with its financial obligation to Counsel such that continued representation of Defendant Infinity will create severe economic hardship on Counsel. (Id.) Counsel further states that he attempted to resolve the issues noted herein with Defendant Infinity’s president, Alex Rodriguez, between May 26, 2020 and July 8, 2020 without success. (Id. at ¶ 7.) Counsel served Defendant Infinity with the Motion, supporting declaration, and proposed order by mail at Defendant’s current address, which was confirmed by telephone at most thirty (30) days before filing this Motion. (Id. at ¶ 3.)

The Court is satisfied with Counsel’s reasons for seeking to be relieved. Although the Court is inclined to grant the Motion, Counsel did not give Defendant Infinity notice of the Court’s July 10, 2020 Order scheduling this hearing as ordered. (7/10/20 Minute Order.) Indeed, Counsel’s proof of service filed on July 16, 2020, demonstrates Plaintiff, Defendant Gotterer, and Defendant Bujold were served with a notice of this hearing, but not Defendant Infinity.

However, in the interest of judicial economy, the Motion is GRANTED ON THE CONDITION THAT, before the hearing, Counsel files a proof of service demonstrating Defendant Infinity was given adequate notice of this hearing. Otherwise, the hearing will be CONTINUED.

1. Conclusion & Order

For the foregoing reasons, Defendant/Cross Complainant Infinity Data Networks, Inc.’s Counsel Kevin R. Carlin’s Motion to be Relieved as Counsel is GRANTED ON THE CONDITION THAT, before the hearing, Counsel files a proof of service demonstrating he gave Defendant Infinity proper notice of the July 10^th Order scheduling this hearing. If granted, the proposed order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Defendant Infinity] has been filed with the court.” (Id.)

Otherwise, the Motion will be CONTINUED TO NOV 17, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Counsel must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Defendant Infinity’s Counsel is ordered to give notice.