Judge Deborah C. Servino, Case 30-2020-01143706 2022-07-29 Tentative Ruling

Judge: Deborah C. Servino, Case: 30-2020-01143706, Date: 2022-07-29 Tentative Ruling

Defendant Howard Waters’ motion to deem admitted requests for admissions, set one, as to Plaintiff Kim Sorensen, is moot except for sanctions.

Procedural Background

When Plaintiff filed her Complaint on May 26, 2020, she was represented by Carpenter, Zuckerman, and Rowley. (ROA 2.) On February 25, 2022, Plaintiff’s current counsel, Trial Lawyers for Justice, attempted to file a document entitled “Notice of Change of Plaintiff’s Counsel’s Firm Name and Contact Information”. On March 2, 2022, the Clerk’s Office rejected the document because the address was not changing, and counsel of record was changing. The Clerk indicated that a substitution of counsel was needed. (ROA 76.) It was not until April 29, 2022 that Trial Lawyers for Justice filed a substitution of counsel on the correct form indicating that Trial Lawyers for Justice was new counsel of record for Plaintiff. This was electronically served on all parties including Waters’ counsel at the correct email address. (ROA 81.)

Meanwhile, on April 11, 2022, Defendant Waters served request for admission, set no. one, on Plaintiff’s former counsel and all other parties by electronic service to the correct addresses. (Berneking Decl., at ¶ 2, Exh. A.) Having received no responses, Defendant filed this motion on June 6, 2022. (ROA 83, 95.)

Plaintiff served verified responses on July 17, 2022, a day before the opposition was filed. (Hanker Decl., at ¶ 16, Exh. K.)

Merits

First, Code of Civil Procedure section 284 provides that an attorney may be changed at any time before or after judgment or final determination, as follows . . .” Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes”. (Emphasis added.) Where the change is by consent, it can be effected at any time simply by filing and serving a signed substitution of attorneys. Permission of court is not required. (Code Civ. Proc., § 284, subd. (1); see Hock v. Superior Court (1990) 221 Cal.App.3d 670, 671.)

Code of Civil Procedure section 285 states: “When an attorney is changed, as provided in the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party. Until then he must recognize the former attorney.”

Even service alone of the Change of Address form is insufficient to give notice of a substitution in counsel. California Rule of Court 1.30 provides that Judicial Counsel forms are either mandatory or optional. Rule 1.31 says that “Forms adopted by the Judicial Council for mandatory use are forms prescribed under Government Code section 68511. Wherever applicable, they must be used by all parties and must be accepted for filing by all courts. In some areas, alternative mandatory forms have been adopted.”

The purpose of the substitution procedure is to have the record of representation clear, so that the parties may be certain with whom they are authorized to deal. Litigants are not required to investigate the relationship between opposing attorneys of record and their clients. Litigants and the courts have every right to rely on court records as binding on both litigants and the attorneys appearing of record on their behalf. (McMillan v. Shadow Ridge at Oak Park Homeowner's Assn. (2008) 165 Cal. App. 4th 960, 965.)

Trial Lawyers for Justice was required to use the Judicial Council’s Substitution of Counsel form to give notice to opposing counsel. Until notice has been given, the adverse party must recognize the former attorney as the former client's exclusive representative. (Code Civ. Proc., § 285; Epley v. Califro (1958) 49 Cal.2d 849, 854.) Plaintiff was properly served via electronic mail to former counsel. Trial Lawyers for Justice attempted to file and served the wrong form to notify parties of a change in counsel. A change in firm name is not the same as a substitution of counsel. The incorrect form was rejected and never filed with the court. Until April 29, 2022, opposing counsel was entitled to serve Plaintiff’s former counsel.

Second, the court finds that this motion was rendered moot by the service of responses, whether or not objections are permitted. (Code Civ. Proc., § 2033.280, subd. (c) [the court shall deem the matters admitted “unless it 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”]; see also St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 782 [actual compliance not required where the proposed response is facially a good-faith effort to respond to requests for admission in a manner that is substantially code-compliant].)

Defendant argues that failure to timely respond to requests for admissions results in waiver of all objections to the requests—including claims of privilege or work product protection. (Code Civ. Proc., § 2033.280, subd. (a).) Plaintiff’s verified responses each contain objections. (Hanker Decl., at ¶ 16, Exh. K.) It is enough that the responses served substantially complies with Code of Civil Procedure 2033.220. (See Tobin v. Oris (1992) 3 Cal.App.4th 814, 827 (disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12) [“that some of the responses were less than clear or complete does not detract from that conclusion”].) To make this determination, the court must evaluate the response “in toto,” rather than based on responses to individual RFAs. (St. Mary v. Superior Court, supra, 223 Cal.App.4th at pp. 779-780.) In looking at the responses as a whole, the court finds that although each contains objections, each is also admitted or denied notwithstanding the objections. Therefore, the court finds that the responses are substantially compliant. The motion is therefore moot other than the issues of sanctions.

Within 30 days of the notice of ruling, Plaintiff is ordered to pay sanctions in the amount of $840 to Messner Reeves LLP. (Code Civ. Proc., § 2033.280, subd. (c); Cal. Rules of Court, rule 3.1348(a).) Since this motion was for a failure to respond, rather than inadequate responses, no meet and confer was required. (See Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4 [citing text] (disapproved on other grounds by Wilcox v. Birtwhistle, supra, 21 Cal.4th at 983, fn. 12); St. Mary v. Superior Court, supra, 223 Cal.App.4th at pp. 777-778.)

Defendant shall give notice of the ruling.