This case was last updated from Los Angeles County Superior Courts on 07/30/2020 at 08:19:27 (UTC).

PPL OF THE STATE OF CAL., ET AL. VS. FLINTRIDGE TREE, ET AL

Case Summary

On 01/23/2018 PPL OF THE STATE OF CAL filed an Other lawsuit against FLINTRIDGE TREE. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is WILLIAM D. STEWART. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7704

  • Filing Date:

    01/23/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

WILLIAM D. STEWART

 

Party Details

Plaintiff

PEOPLE OF THE STATE OF CALIFORNIA

Defendants

STEVEN'S TREE EXPERTS

FLINTRIDGE TREE CARE INC.

CLARKE DEBORA ANN

SAN MARINO TREE CARE INC.

SCHULTZ STEVEN

LANDSCAPE ENGINEERING INC.

HENRY LANCE ELLIS

Not Classified By Court

BRUCE T. MCINTOSH

Attorney/Law Firm Details

Plaintiff Attorneys

MEDNICK ALLEN D. CHIEF PROSECUTOR OFFIC

PRUITT STACEY MONIQUE

Defendant Attorneys

MCINTOSH BRUCE T.

MCINTOSH BRUCE TERENCE

SARKISYAN ANOUSH

BRUCE T. MCINTOSH

 

Court Documents

Stipulation - No Order - STIPULATION - NO ORDER FOR SETTLEMENT AND ENTRY OF JUDGMENT

6/15/2020: Stipulation - No Order - STIPULATION - NO ORDER FOR SETTLEMENT AND ENTRY OF JUDGMENT

Declaration - DECLARATION OF NICOLE SILVA IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

3/11/2020: Declaration - DECLARATION OF NICOLE SILVA IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [MINUTE ORDER (HEARING ON MOTION FOR TERMINATING SANCTIONS BY PLTFF PEOPLE O...)]

1/30/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [MINUTE ORDER (HEARING ON MOTION FOR TERMINATING SANCTIONS BY PLTFF PEOPLE O...)]

Motion for Order - MOTION FOR ORDER MOTION IN LIMINE PROHIBITING DEFENDANTS FROM REFERRING TO, OFFERING, OR INTRODUCING INTO EVIDENCE INFORMATION NOT PRODUCED BY DEFENDANTS DURING DISCOVERY

12/26/2019: Motion for Order - MOTION FOR ORDER MOTION IN LIMINE PROHIBITING DEFENDANTS FROM REFERRING TO, OFFERING, OR INTRODUCING INTO EVIDENCE INFORMATION NOT PRODUCED BY DEFENDANTS DURING DISCOVERY

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR TERMINATING SANCTIONS BY PLTFF PEOPLE O...)

12/20/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR TERMINATING SANCTIONS BY PLTFF PEOPLE O...)

Brief - INDEX OF EXHIBITS

11/15/2019: Brief - INDEX OF EXHIBITS

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR...)

11/14/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR...)

Proof of Service (not Summons and Complaint) - PROOF OF SERVICE (NOT SUMMONS AND COMPLAINT) FOR AMENDED DECLARATION ISO EX PARTE APPLICATION

11/13/2019: Proof of Service (not Summons and Complaint) - PROOF OF SERVICE (NOT SUMMONS AND COMPLAINT) FOR AMENDED DECLARATION ISO EX PARTE APPLICATION

Brief - PLAINTIFF'S INDEX OF EXHIBITS

11/12/2019: Brief - PLAINTIFF'S INDEX OF EXHIBITS

Declaration - DECLARATION OF BRUCE T. MCINTOSH IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL THE ATTENDANCE AT DEPOSITION OF FLINTRIDGE TREE CARE, INC,

9/30/2019: Declaration - DECLARATION OF BRUCE T. MCINTOSH IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL THE ATTENDANCE AT DEPOSITION OF FLINTRIDGE TREE CARE, INC,

Reply - REPLY TO OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS

10/4/2019: Reply - REPLY TO OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS

Stipulation and Order - STIPULATION AND ORDER TO CONTINUE DISCOVERY CUT-OFF, MOTION CUT-OFF, FINAL STATUS CONFERENCE AND TRIAL DATE

6/24/2019: Stipulation and Order - STIPULATION AND ORDER TO CONTINUE DISCOVERY CUT-OFF, MOTION CUT-OFF, FINAL STATUS CONFERENCE AND TRIAL DATE

Proof of Service (not Summons and Complaint)

3/22/2018: Proof of Service (not Summons and Complaint)

Minute Order - MINUTE ORDER ENTERED: 2018-04-09 00:00:00

4/9/2018: Minute Order - MINUTE ORDER ENTERED: 2018-04-09 00:00:00

Answer

4/23/2018: Answer

Answer

5/30/2018: Answer

Declaration - Declaration of Stacy M. Pruitt in support of Motion to Strike Defts' Answers

12/28/2018: Declaration - Declaration of Stacy M. Pruitt in support of Motion to Strike Defts' Answers

Case Management Statement -

7/10/2018: Case Management Statement -

94 More Documents Available

 

Docket Entries

  • 06/29/2020
  • Docketat 10:00 AM in Department A, William D. Stewart, Presiding; Hearing on Motion for Summary Judgment (Filed by Pltff the People of the State of California, et. al.) - Not Held - Advanced and Vacated

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  • 06/29/2020
  • Docketat 10:00 AM in Department A, William D. Stewart, Presiding; Trial Setting Conference - Not Held - Advanced and Vacated

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  • 06/29/2020
  • Docketat 10:00 AM in Department A, William D. Stewart, Presiding; Hearing on Motion in Limine (Proibiting Defts from Referring to, Offering, or Introducing into Evidence Information not Produced by Defts during Discovery) - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 06/29/2020
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Non-Jury Trial - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 06/29/2020
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Final Status Conference - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 06/29/2020
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Non-Jury Trial - Not Held - Continued - Stipulation

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  • 06/29/2020
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Final Status Conference - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 06/29/2020
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Hearing on Motion in Limine (PROHIBITING DEFENDANTS FROM REFERRING TO, OFFERING, OR INTRODUCING INTO EVIDENCE INFORMATION NOT PRODUCED BY DEFENDANTS DURING DISCOVERY) - Not Held - Rescheduled by Court

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  • 06/17/2020
  • Docketat 11:16 AM in Department A, William D. Stewart, Presiding; Court Order

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  • 06/17/2020
  • DocketJudgment (AND INJUNCTION PURSUANT TO STIPULATION); Filed by People of the State of California (Plaintiff)

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128 More Docket Entries
  • 03/22/2018
  • DocketProof of Service (not Summons and Complaint); Filed by People of the State of California (Plaintiff)

    Read MoreRead Less
  • 03/22/2018
  • DocketProof of Service (not Summons and Complaint); Filed by People of the State of California (Plaintiff)

    Read MoreRead Less
  • 03/22/2018
  • DocketProof of Service (not Summons and Complaint); Filed by People of the State of California (Plaintiff)

    Read MoreRead Less
  • 03/22/2018
  • DocketProof of Service (not Summons and Complaint); Filed by People of the State of California (Plaintiff)

    Read MoreRead Less
  • 03/22/2018
  • DocketProof of Service (not Summons and Complaint); Filed by People of the State of California (Plaintiff)

    Read MoreRead Less
  • 01/23/2018
  • DocketCivil Case Cover Sheet; Filed by People of the State of California (Plaintiff)

    Read MoreRead Less
  • 01/23/2018
  • DocketComplaint filed-Summons Issued; Filed by People of the State of California (Plaintiff)

    Read MoreRead Less
  • 01/23/2018
  • DocketSummons; Filed by People of the State of California (Plaintiff)

    Read MoreRead Less
  • 01/23/2018
  • DocketNotice of Case Management Conference; Filed by Court

    Read MoreRead Less
  • 01/23/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Court

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Tentative Rulings

Case Number: EC067704    Hearing Date: December 20, 2019    Dept: A

SCAQMD v Flintridge Tree Care

Motion for Reconsideration; Motion for Terminating Sanctions

Calendar:

13

Case No.:

EC067704

Hearing Date:

December 20, 2019

Action Filed:

January 23, 2018

Trial Date:

January 27, 2020

Reconsideration

MP:

Defendants Flintridge Tree Care, Inc.; Steven Schultz; Lance Ellis Henry; Debora Ann Clarke

RP:

Plaintiff People of the State of California ex rel. South Coast Air Quality Management District

Terminating Sanctions

MP:

Plaintiff People of the State of California ex rel. South Coast Air Quality Management District

RP:

Defendants Flintridge Tree Care, Inc.; Steven Schultz; Lance Ellis Henry; Debora Ann Clarke

ALLEGATIONS:

In this action, Plaintiff People of the State of California ex rel. South Coast Air Quality Management District (“Plaintiff”) alleges that it is tasked with regulating non-vehicular air pollution and emissions in the Counties of Los Angeles, Orange, Riverside, and San Bernardino. Plaintiff alleges that Defendants Flintridge Tree Care, Inc. (“Flintridge”); Landscape Engineering Inc. d/b/a Steven’s Tree Experts (“Steven’s”); San Marino Tree Care, Inc. (“SMT”); Lance Ellis Henry (“Henry”); Debora Ann Clarke (“Clarke”); and Steven Schultz (“Schultz” and collectively the “Defendants”) are required to comply with various Health & Safety Code provisions, but that they failed to do so and are thus subject to paying civil penalties for their noncompliance. Namely, Plaintiff alleges that Defendants used wood chipper or grinders without a valid license to operate them.

The Complaint, filed January 23, 2018, alleges causes of action for violation of District Rule 203: (1) Strict Liability (Health & Saf. Code §42402); (2) Negligent Emission of Air Contaminants (Health & Saf. Code §42402.1(a)); (3) Knowing Emission of an Air Contaminant and Failure to Take Corrective Action (Health & Saf. Code §42402.2(a)); and (4) Willful and Intentional Emission of an Air Contaminant (Health & Saf. Code §42402.3(a)).

PRESENTATION:

Defendants’ motion for reconsideration was filed on October 29, 2019. Plaintiff filed opposition on November 22, 2019, and Defendants submitted a reply brief on December 11, 2019.

Plaintiff moved for terminating sanctions on November 15, 2019, Defendants opposed the motion on December 09, 2019, and a reply brief was filed on December 13, 2019.

RELIEF REQUESTED:

Defendants move for reconsideration of the Court’s October 11, 2019, Order granting Plaintiff’s motion to deem requests for admission admitted.

Plaintiff moves for terminating sanctions against Defendants.

DISCUSSION:

Standard of Review – Reconsideration – Code of Civ. Proc. §1008 provides in relevant part: “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for failure to produce that evidence at an earlier time. Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 1342. The provisions of Code of Civil Procedure Section 1008 delineate the court’s jurisdiction with respect to applications for reconsideration of its orders, whether interim or final. Code of Civil Procedure § 1008(e); Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499. Therefore, should the strict procedural limits of Code of Civil Procedure Section 1008 not be met, the court lacks jurisdiction to reconsider its prior ruling. See, e.g., Kerns v. CSE Insurance Group (2003) 106 Cal. App. 4th 368, 383.

10 Day Jurisdictional Limits – In order to comply with the 10-day jurisdictional timeline described in Code of Civ. Proc. §1008, the time to respond is ten days from the order, plus any automatic extension pursuant to Code of Civ. Proc. §1013.

Here, the Order was issued on October 11, 2019, and notice of the ruling was served by mail by Plaintiff on October 15, 2019. As the mailing address is an in-state address, the time to file the instant motion is on or before October 30, 2019. As the instant motion was filed on October 29, 2019, the motion is timely.

Merits – As an initial matter, the Court notes that Defendants make two material errors in their recitation of the procedural history of the underlying motion. First, Defendants represent that the Court dismissed Defendant’s supplemental declaration attesting to the service of the four sets of responses to Requests for Admission. Motion, 4:5-7. In the Court’s October 11, 2019, Minute Order, the Court noted that the supplemental declaration (filed October 02, 2019) was “untimely and unauthorized” but that the holding of the Court related to the supplemental declaration, following the Court’s review of it, was that the declaration was insuffucuent due to the failure of Defendants to attach their responses to the Requests for Admission. October 11, 2019, Minute Order, pp. 3. Second, that the Court did not afford Defendants the opportunity to supplement their briefs. Motion, 4:8-11. In fact, the tentative decision of the Court specifically noted that “If Flintridge Defendants indicate to the Court that they require the motion continued to permit further briefing caused by this error [Plaintiff’s late filing the RFAs], the Court will consider such request at oral arguments. Otherwise, the Court is inclined to adjudicate the matter without further continuance.” October 11, 2019, Minute Order, pp. 3. Defendants chose not to attend the hearing, chose not to request an extension in order to file supplemental briefing, and chose not to avail themselves of any other process available to them under the code.

Defendants now move the Court to reconsider on the basis of their provision of the October 02, 2019, RFA responses in the instant motion. Motion, 4:12-14. However, on the record before the Court, Defendants fail to provide the Court with a satisfactory explanation for failure to produce that evidence at an earlier time. Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 1342. While recognizing that applicability of the Mink standard on motion, (Motion, 5:12-15), the sole basis of Defendants’ putative explanation is that “To the extent that copies of the Responses were not attached to the Supplemental Declaration, that failure was my failure and not the failure of the Defendants in the case.” Decl. of McIntoch, ¶10.

To the extent that Defendants are arguing that the supplemental declaration, on its own, should have been sufficient to deny the underlying motion to deem Requests for Admission Admitted, the Court notes that Code of Civ. Proc. §2033.280(c) required that such a motion be granted unless the Court “finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” In sum, the Code requires that the Court consider both (1) whether responses were served, and (2) whether the responses were in substantial compliance with the code requirements. Absent actual production of the responses, the Court is not capable of reviewing them for substantial compliance with the code, and cannot, therefore, deny a motion to deem RFAs admitted.

 

Accordingly, the Court will deny the motion for reconsideration.

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Motion for Terminating Sanctions – Code Civ. Proc. §2023.030(d) authorizes the Court to impose terminating sanctions due to a party’s misuse of the discovery process. “A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to trial, thus implicating due process rights.” Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal. App. 4th 566, 604, review denied (July 27, 2016). “A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279–80, as modified on denial of reh'g (May 4, 2005). Subsection (d) specifically authorizes the Court to “strik[e] out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process… stay[] further proceedings by that party until an order for discovery is obeyed… dismiss[] the action, or any part of the action, of that party… [or] rendering a judgment by default against that party.” Code Civ. Proc. §2023.030(d)(1)-(4).

On review, the Court finds that Plaintiff has failed to establish a prima facie right to terminating sanctions for failing to establish (1) a willful violation, (2) a history of abuse, and (3) that less severe sanctions would not produce compliance. Specifically, Plaintiff primarily relies on the purported non-compliance with this Court’s October 11, 2019, Order. However, the single violation of a court order is insufficient to establish that history of abuse necessary to justify terminating sanctions. Nor does providing the Court with a record of all the discovery propounded on Defendants by Plaintiff to date suffice to establish a history of discovery abuse. There is no evidence provided that any failure was willful. Finally, there is no indication that less severe sanctions are necessary now when there is now additional counsel brought in on the case, and no indication that other sanctions are warranted under the circumstances.

Accordingly, the motion will be denied.

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RULING: Deny both motions.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Flintridge Tree Care, Inc.; Steven Schultz; Lance Ellis Henry; Debora Ann Clarke’s Motion for Reconsideration came on regularly for hearing on December 20, 2019, together with Plaintiff People of the State of California ex rel. South Coast Air Quality Management District’s Motion for Terminating Sanctions with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTIONS ARE DENIED.

.

DATE: _______________ _______________________________

JUDGE

Case Number: EC067704    Hearing Date: December 13, 2019    Dept: A

SCAQMD v Flintridge Tree Care

Motion for Reconsideration; Motion to be Relieved as Counsel

Calendar:

16

Case No.:

EC067704

Hearing Date:

December 13, 2019

Action Filed:

January 23, 2018

Trial Date:

January 27, 2020

Reconsideration

MP:

Defendants Flintridge Tree Care, Inc.; Steven Schultz; Lance Ellis Henry; Debora Ann Clarke

RP:

Plaintiff People of the State of California ex rel. South Coast Air Quality Management District

Relieved as Counsel

MP:

Bruce T. McIntosh, Esq., counsel for Defendants Flintridge Tree Care, Inc.; Steven Schultz; Lance Ellis Henry; Debora Ann Clarke

RP:

Plaintiff People of the State of California ex rel. South Coast Air Quality Management District

ALLEGATIONS:

In this action, Plaintiff People of the State of California ex rel. South Coast Air Quality Management District (“Plaintiff”) alleges that it is tasked with regulating non-vehicular air pollution and emissions in the Counties of Los Angeles, Orange, Riverside, and San Bernardino. Plaintiff alleges that Defendants Flintridge Tree Care, Inc. (“Flintridge”); Landscape Engineering Inc. d/b/a Steven’s Tree Experts (“Steven’s”); San Marino Tree Care, Inc. (“SMT”); Lance Ellis Henry (“Henry”); Debora Ann Clarke (“Clarke”); and Steven Schultz (“Schultz” and collectively the “Defendants”) are required to comply with various Health & Safety Code provisions, but that they failed to do so and are thus subject to paying civil penalties for their noncompliance. Namely, Plaintiff alleges that Defendants used wood chipper or grinders without a valid license to operate them.

The Complaint, filed January 23, 2018, alleges causes of action for violation of District Rule 203: (1) Strict Liability (Health & Saf. Code §42402); (2) Negligent Emission of Air Contaminants (Health & Saf. Code §42402.1(a)); (3) Knowing Emission of an Air Contaminant and Failure to Take Corrective Action (Health & Saf. Code §42402.2(a)); and (4) Willful and Intentional Emission of an Air Contaminant (Health & Saf. Code §42402.3(a)).

PRESENTATION:

Defendants’ motion for reconsideration was filed on October 29, 2019. Plaintiff filed opposition on November 22, 2019.

Bruce T. McIntosh, Esq.’s motion to be relieved as counsel was filed on November 12, 2019. Plaintiff filed opposition on November 22, 2019.

RELIEF REQUESTED:

Defendants move for reconsideration of the Court’s October 11, 2019, Order granting Plaintiff’s motion to deem requests for admission admitted.

Bruce T. McIntosh, Esq. moves to be relived as counsel for Defendants.

DISCUSSION:

Standard of Review – Reconsideration – Code of Civ. Proc. §1008 provides in relevant part: “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for failure to produce that evidence at an earlier time. Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 1342. The provisions of Code of Civil Procedure Section 1008 delineate the court’s jurisdiction with respect to applications for reconsideration of its orders, whether interim or final. Code of Civil Procedure § 1008(e); Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499. Therefore, should the strict procedural limits of Code of Civil Procedure Section 1008 not be met, the court lacks jurisdiction to reconsider its prior ruling. See, e.g., Kerns v. CSE Insurance Group (2003) 106 Cal. App. 4th 368, 383.

10 Day Jurisdictional Limits – In order to comply with the 10-day jurisdictional timeline described in Code of Civ. Proc. §1008, the time to respond is ten days from the order, plus any automatic extension pursuant to Code of Civ. Proc. §1013.

Here, the Order was issued on October 11, 2019, and notice of the ruling was served by mail by Plaintiff on October 15, 2019. As the mailing address is an in-state address, the time to file the instant motion is on or before October 30, 2019. As the instant motion was filed on October 29, 2019, the motion is timely.

Merits – As an initial matter, the Court notes that Defendants make two errors in their recitation of the Court’s holding in its October 11, 2019, Minute Order. First, Defendants represent that the Court dismissed Defendant’s supplemental declaration attesting to the service of the four sets of responses to Requests for Admission. Motion, 4:5-7. As stated in the Court’s October 11, 2019, Minute Order, the Defendants’ supplemental declaration (filed October 02, 2019) was “untimely and unauthorized”. However, the Court did not disregard the supplemental declaration on those grounds, but on the merits, holding that the declaration was substantively insufficient due to the failure of Defendants to attach their responses to the Requests for Admission. October 11, 2019, Minute Order, pp. 3. Second, Defendants state that the Court did not afford Defendants the opportunity to supplement their briefs. Motion, 4:8-11. This is incorrect, as in the Minute Order (originally published as the Court’s tentative decision prior to the hearing) specifically provided that “[i]f Flintridge Defendants indicate to the Court that they require the motion continued to permit further briefing caused by this error [Plaintiff’s late filing the RFA documents], the Court will consider such request at oral arguments. Otherwise, the Court is inclined to adjudicate the matter without further continuance.” October 11, 2019, Minute Order, pp. 3. As such, the Court specifically afforded Defendants the opportunity to request a continuance in order to file supplemental briefs upon Defendants’ request. Defendants chose not to attend the October 11 hearing, chose not to request an extension in order to file supplemental briefing, and chose not to avail themselves of any other process available to them under the code.

Defendants now move the Court to reconsider on the basis of their provision of the October 02, 2019, RFA responses in the instant motion. Motion, 4:12-14. However, on the record before the Court, Defendants fail to provide the Court with a satisfactory explanation for failure to produce that evidence at an earlier time. Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 1342. While recognizing that applicability of the Mink standard on motion, (Motion, 5:12-15), the sole basis of Defendants’ putative explanation is that “[t]o the extent that copies of the Responses were not attached to the Supplemental Declaration, that failure was my failure and not the failure of the Defendants in the case.” Decl. of McIntosh, ¶10. This statement of attorney fault, however, is not a satisfactory explanation for Defendants’ failure to produce the RFAs prior to the October 11, 2019, Oral Arguments.

To the extent that Defendants are arguing that the supplemental declaration, on its own, should have been sufficient to deny the underlying motion to deem Requests for Admission Admitted, this argument is contrary to the provisions of the code. The Court notes that Code of Civ. Proc. §2033.280(c) requires that a motion on Requests for Admission be granted unless the Court “finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” Stated differently, the Code requires that the Court consider both (1) whether responses were served prior to oral arguments, and (2) whether the responses were in substantial compliance with the code requirements. Absent actual production of the responses, the Court is not able to review them for substantial compliance with the code, and cannot, therefore, deny a motion to deem RFAs admitted without those documents.

 

Accordingly, the Court will deny the motion for reconsideration.

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Motion to be Relieved as Counsel – Code of Civil Procedure §284(1) allows for a change or substitution of attorney “[u]pon the consent of both client and attorney, filed with the clerk, or entered upon the minutes.” If both parties do not consent to a substitution of attorney, Code of Civ. Proc. §284(2) allows for a substitution “[u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” California Rules of Court Rule 3.1362 sets forth procedures for relieving counsel without the mutual consent of both parties.

Under Rule 3.1362, an attorney seeking to withdraw by motion rather than by consent of the client, as here, is required to make that motion using approved Judicial Council forms. The motion also requires a declaration stating “in general terms, and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).” Cal. Rules of Ct., Rule 3.1362(c). Judicial Council form MC-052, the attorney’s declaration, requires that the client be provided no less than five days’ notice before hearing on the motion. A proposed order prepared on form MC-053 must also be lodged with the court with the moving papers.

The Court of Appeals has recognized, “A lawyer violates his or her ethical mandate by abandoning a client [citation], or by withdrawing at a critical point and thereby prejudicing the client’s case. [Citation.] We are, however, aware of no authority preventing an attorney from withdrawing from a case when withdrawal can be accomplished without undue prejudice to the client’s interests.” Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.

In the Declaration of McIntosh, counsel attests that he is physically unable to continue his representation of Defendants and must therefore withdraw pursuant to California Rules of Professional Ethics, Rule 3-700(B)(3). Decl. of McIntosh, ¶¶3-6. While counsel provides additional grounds for his permissive withdraw as well, the Court considers the mandatory withdraw adequate to grant the motion on the merits.

To the extent that Plaintiff opposes the motion on the grounds that it may experience some inconvenience due to any delay of the proceedings, the Court finds that such concerns are inadequate to overcome the fundamental prejudice that Defendants would suffer should they be required to employ an attorney that attests to his physical inability to adequately represent his clients.

Accordingly, the motion to be relieved as counsel is granted.

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RULING: Deny motion to reconsider; Grant motion to be relieved.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Flintridge Tree Care, Inc.; Steven Schultz; Lance Ellis Henry; Debora Ann Clarke’s Motion for Reconsideration came on regularly for hearing on December 13, 2019, together with Defendants’ Counsel Bruce T. McIntosh’s Motion to be Relieved as Counsel with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR RECONSIDERATION IS DENIED; AND

THE MOTION TO BE RELIEVED AS COUNSEL IS GRANTED.

DATE: _______________ _______________________________

JUDGE