MICHAEL J FOWLER VS ALANNA MITCHELL

Tentative Rulings

Case Number: BC670883    Hearing Date: December 09, 2020    Dept: 48

[TENTATIVE] ORDER RE MOTIONS TO COMPEL; MOTION FOR RELIEF FROM WAIVER; MOTION TO BE RELIEVED

Motion to be Relieved as Counsel

On November 12, 2020, Miles Feldman, Robert Shore, and Lawrence Liu of Raines Feldman LLP, counsel for Plaintiff Michael Fowler, filed a motion to be relieved as counsel. No opposition was filed. Counsel state that Plaintiff has failed to pay legal fees and stopped communicating with counsel. Trial is not until September 20, 2021, and therefore Plaintiff will not be prejudiced by the withdrawal. Therefore, the Court GRANTS the motion, effective upon filing the proof of service of Form MC-053 on Plaintiff and all parties who have appeared.

Motion for Relief from Waiver of Objections

On October 30, 2019, Plaintiff’s former counsel filed a motion to be relieved. The Court granted the motion on December 20, 2019, and the withdrawal was effective on December 26, 2019. Also on December 20, 2019, Defendant Alanna Mitchell served form interrogatories, special interrogatories, and requests for production of documents. On February 4, 2020, Plaintiff filed and served a motion to compel responses and a motion to deem RFAs admitted.

On February 6, 2020, after the responses were due and after the motions were filed, Plaintiff retained current counsel. It took the new counsel several weeks to obtain the client files from the former counsel at the end of February 2020 and then some time to obtain additional documents necessary to answer the discovery. Also during this time, Plaintiff was hospitalized. Plaintiff served responses on June 4, 2020, asserting some privilege and privacy objections.

On November 13, 2020, Plaintiff filed this motion for relief from waiver of objections. Plaintiff seeks relief from his waiver of objections pursuant to Code of Civil Procedure sections 2030.290 and 2031.300, arguing that the response are in substantial compliance and the late responses were due to excusable neglect because former counsel made no attempt to protect his rights or to tell him about upcoming deadlines.

Defendant argues Plaintiff knew his former attorney was seeking to be relieved by October 30, 2019 when they filed the motion to be relieved, but he waited three months to retain new counsel. The new counsel then took about four months to provide the responses but not documents. Plaintiff did not produce some documents until October. Plaintiff then waited until November to file this motion.

Plaintiff has not shown excusable neglect in serving late responses. Plaintiff did not provide a declaration stating whether former counsel told him about the discovery requests and if not when he learned about the responses, detailing what he did to respond to the responses once he learned about them, explaining why his failure to serve timely responses was excusable, and describing the steps he took to expeditiously retain new counsel. Plaintiff does not explain why he did not have new counsel lined up to take over the case when he learned his former counsel was seeking to withdraw. Without evidence from Plaintiff (or the former counsel), it is speculation that former counsel did not tell Plaintiff about the discovery or that Plaintiff’s failure to serve timely responses by the January 2020 due date was excusable. Rather than showing excusable neglect, the evidence points to Plaintiff’s deciding not to participate in this litigation. The failure to pay his former counsel, lack of communication, failure to pay current counsel, and absence of direct evidence from Plaintiff add up to a disinterested plaintiff, not excusable neglect.

Therefore, the motion is DENIED.

Motion to Compel Responses to Special Interrogatories (set 2)

On November 9, 2020, Defendant filed a motion to compel further responses to special interrogatories (set 2). Defendant seeks responses without objections and further responses to Nos. 18, 21, and 31.

As discussed above, Plaintiff’s request for relief from waiver of objections is denied. Plaintiff is to provide verified responses without objections.

No. 18: Granted. This interrogatory seeks a description of the trade secrets with reasonable particularity. Plaintiff contends Defendant took trade secrets from his phone. Plaintiff is to provide a further response by describing with particularity the trade secrets on his phone at the time Defendant allegedly photographed information on the phone. At this time, the Court is not ordering the production of the actual algorithm that Plaintiff claims can be reversed engineered unless that algorithm was on the phone at the time Defendant photographed it.

No. 21: Granted. Plaintiff is to provide a verified response with the names of the past and present clients who have knowledge of the facts supporting the trade secret claims.

No. 31: Granted. This interrogatory seeks the facts supporting the breach of contract claim. Plaintiff responded that Defendant disclosed the terms of a settlement agreement to third parties. Defendant seeks the identity of those third parties, which Plaintiff agreed to produce. Plaintiff is to provide a verified response with the names.

The motion is GRANTED. Plaintiff is to serve verified responses without objections to all the requests and verified further responses without objections to Nos. 18, 21, and 31 within 20 days of the date of this order.

The request for sanctions is GRANTED. Plaintiff has not shown substantial justification for not serving verified further responses. Sanctions are awarded against Plaintiff in the amount of $2,375.00 to be paid with 20 days of the date of this order. The various motions significantly overlap, and the full amounts of sanctions requested in connection with this and the other motions are excessive.

Motion to Compel Responses to Form Interrogatories (set 5)

On November 13, 2020, Defendant filed a motion to compel further responses to form interrogatories (set 5). Defendant seeks responses without objections and further responses to Nos. 8.7, 12.1 and 17.1. Plaintiff states that he has agreed to provide the requested supplemental responses, but it appears that those responses have not yet been provided.

As discussed above, Plaintiff’s request for relief from waiver of objections is denied. Plaintiff is to provide verified responses without objections.

No. 8.7: Granted. This interrogatory asks for the total income Plaintiff has lost and an explanation of how the amount was calculated. Plaintiff estimated $1.1 million but did not explain how he arrived at that number. Plaintiff is to provide the calculation for that amount.

Nos. 12.1, 17.1: Granted. No. 12.1 asks Plaintiff to identify people with knowledge of the incident. In response to No. 12.1 and No. 17.1, Plaintiff referred to creditors not paid by Defendant, but did not identify them. Also, Plaintiff referred to past and present clients. Plaintiff is to identify the creditors and past and present clients.

The motion is GRANTED. Plaintiff is to serve verified further responses to all the form interrogatories without objections and to provide verified further responses to Nos. 8.7, 12.1 and 17.1 as specified above within 20 days of the date of this order.

The request for sanctions is GRANTED. Plaintiff has not served the promised verified supplemental responses, apparently because he has abandoned this case, and has not shown substantial justification for the failure. Sanctions are awarded against Plaintiff in the amount of $2,375.00 to be paid with 20 days of the date of this order.

Motion to Compel Responses to Requests for Production (set 6)

On November 16, 2020, Defendant filed a motion to compel further responses to requests for production (set 6). The motion was set to be heard on December 10, 2020, but will be heard on December 9, 2020. Defendant seeks responses without objections.

As discussed above, Plaintiff’s request for relief from waiver of objections is denied. Plaintiff is to provide verified responses without objections within 20 days of the date of this order except as to third parties’ privacy rights. To the extent the requests seek documents containing third parties’ private information, Plaintiff is to take the necessary and appropriate steps to protect the third parties’ rights. According to Plaintiff, the third parties were notified and did not object. Therefore the responsive documents are to be produced.

Regarding responsive documents protected by the doctor-patient privileged, Plaintiff asserts he does not intend to pursue claims based on his medical information. Therefore, Plaintiff is to provide a verified response stating that he is not, and will not be, pursuing claims based on his medical information. If Plaintiff provides such a verified response, he does not need to produce the responsive documents. If he does not provide the verified response, he is to produce the responsive documents.

The Court is not ordering the production of attorney-client privileged and work product documents and tax documents based on Plaintiff’s failure to timely respond. If Plaintiff withholds responsive documents based on attorney-client privilege, attorney work product, or tax privilege, Plaintiff is to provide a privilege log listing those documents. However, there is a category of communications with tax advisors and counsel that Plaintiff has put at issue – those communications that Plaintiff claims Defendant accessed on his phone as alleged in his second amended complaint. If Plaintiff intends to pursue this claim, Plaintiff must produce those documents. If Plaintiff is no longer pursuing this claim, Plaintiff must so state in verified responses.

The motion is GRANTED. Plaintiff is to serve verified further responses without objections except as discussed above, responsive documents, and a privilege log within 20 days of the date of this order.

The request for sanctions is GRANTED. Plaintiff has not shown substantial justification for not serving verified further responses. Sanctions are awarded against Plaintiff in the amount of $2,375.00 to be paid with 20 days of the date of this order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC670883    Hearing Date: December 01, 2020    Dept: 48

[TENTATIVE] ORDER RE MOTION TO COMPEL; MOTION TO DEEM RFAS ADMITTED

On December 20, 2019, Defendant Alanna Mitchel served requests for admission, form interrogatories, special interrogatories and requests for documents on Plaintiff Michael Fowler. Plaintiff did not serve responses. On February 4, 2020, Defendant filed a motion to compel responses to the form interrogatories, special interrogatories and requests for documents and a motion to deem the requests for admission admitted. The hearing date was continued several times. On November 16, 2020, Plaintiff filed oppositions stating he had served the responses on June 4, 2020. On November 20, 2020, Defendant filed replies arguing that sanctions still need to be decided.

As an initial matter, Defendant should have filed four motions – one for each set of discovery. Before the hearing, Defendant is to pay two additional filing fees and file proof of payment.

The motions are MOOT except for sanctions.

The parties agree that $3,271.45 is the proper amount of attorney fees for the motion to deem requests for admission admitted. As for the motion to compel, Plaintiff has shown substantial justification for not imposing sanctions against Plaintiff. Plaintiff’s prior counsel withdrew from the representation at the time Plaintiff served the discovery and did not hand over a complete case file to the new counsel. Plaintiff was hospitalized after contracting Covid, which delayed the responses.

Therefore, subject to Defendant paying the two additional filing fees, the Court GRANTS the request for sanction on the motion to deem requests for admission admitted and orders sanctions against Plaintiff in the amount of $3,271.45 to be paid within 20 days of the date of this order. The request for sanctions on the motion to compel is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC670883    Hearing Date: December 20, 2019    Dept: 48

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Attorneys Melissa DeJoie, Marita Gorecki and Meg E. Smith, counsel for Plaintiff Michael J. Fowler

RESPONDING PARTY(S): No opposition filed.

PROOF OF SERVICE:

• Correct Address: Yes.
• 16/21 (CCP § 1005(b)): OK. Served by mail on December 12, 2019.

• GRANT motion to be relieved as counsel.

ANALYSIS

Motion to Be Relieved As Counsel

The client has breached an agreement or obligation as to expenses or fees. Declaration, ¶ 2.

The hearing on the motion to be relieved as counsel is GRANTED. The order shall become effective upon the filing of the proof of service of the signed order upon the client.

Case Number: BC670883    Hearing Date: November 26, 2019    Dept: 48

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Attorneys Melissa DeJoie, Marita Gorecki and Meg E. Smith, counsel for Plaintiff Michael J. Fowler

RESPONDING PARTY(S): No opposition filed.

PROOF OF SERVICE:

• Correct Address: No proof of service.
• 16/21 (CCP § 1005(b)): No proof of service,

• CONTINUE HEARING on motion to be relieved as counsel for supplemental declaration and proof of service.

ANALYSIS

Motion to Be Relieved As Counsel

California Rules of Court, Rule 3.1362 requires that the following Mandatory Judicial Council forms be filed for a motion to be relieved as counsel: Notice of Motion and Motion to Be Relieved as Counsel--Civil (form MC-051); Motion to Be Relieved as Counsel--Civil (form MC-052); and Order Granting Attorney's Motion to Be Relieved as Counsel--Civil (form MC-053). See CRC Rule 3.1362(a), (c), (e). These three forms must be served on must be served on the client and on all other parties who have appeared in the case. Rule 3.1362(d).

The Court may issue an order allowing an attorney to withdraw from representation, after notice to the client. CCP § 284(2). An attorney may withdraw with or without cause as long as the withdrawal would not result in undue prejudice to the client's interest - i.e., counsel cannot withdraw at a critical point in the litigation because that would prejudice the client, but can withdraw otherwise. Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915. The court has discretion to deny an attorney’s request to withdraw where such withdrawal would work an injustice or cause undue delay in the proceeding; but the court’s discretion in this area is one to be exercised reasonably. Mandell v. Superior Court (1977) 67 Cal.App.3d 1.

The Declaration does not offer any reason for the withdrawal. Declaration, ¶ 2. Although attorney-client privileged communications are required to be kept confidential, moving party must at least give a generalized description of the reason for withdrawal.

Accordingly, the hearing on the motion to be relieved as counsel is CONTINUED to December 20, 2019. By no later than December 13, 2019, moving party is to file a supplemental declaration addressing the above-identified deficiency, and to file a proof of service regarding notice of the motion and of the continuance.