Judge: John C. Gastelum, Case: 20-01180676, Date: 2022-08-23 Tentative Ruling
Martin v. Bare Performance Nutrition LLC
(1) Motion to Compel Further Responses to Special Irogs (2) Motion to Compel Response to RFAs (3) CMC
Ruling: (1-3) Off Calendar – no hearing will be held.
The Motions to Compel brought by Plaintiff Dominick Martin (ROA Nos. 68 and 70) are CONTINUED to 9-27-2022, Dept. C11, at 2 pm.
Initially, the Motions are continued as the Proofs of Service provided by Plaintiff insufficiently demonstrate service on Defendant. Notably, the Proofs of Service for both Motions to Compel state only that the declarant is “causing the document(s) to be served by email or electronic transmission via USA Legal…” The declarant does not indicate they completed service themselves and, consequently, the Proofs of Service lack personal knowledge that service was, in fact, completed. Alternatively, the relevant Proofs of Service fail to comply with Code of Civil Procedure section 1013b, as the declarant does not indicate a familiarity with the “business’ practice for filing electronically,” as contemplated by section 1013b(a)(3). In addition to the above, the declarant does not identify the “name and residence or business address of the person making service,” as required. (Code Civ. Proc., §1013b(a).) Instead, the Proofs of Service merely identify the server as “USA Legal.”
Additionally, while Code of Civil Procedure section 1010.6 indicates that “[e]lectronic service may be performed…through an electronic filing service provider,” the provision does not permit a failure to comply with section 1013b. Moreover, the Court notes that “USA Legal” is not included on the publicly available list of court approved electronic filing service providers.
In addition to the above, the motions are continued, to permit Plaintiff to address, through supplemental briefing, whether these motions are properly before the Court, given the motions rely on responses provided by unlicensed counsel.
On March 29, 2021, a Motion to Dismiss was filed by Counsel Anthony M. Davis, on behalf of Defendant. (ROA No. 10). However, on October 5, 2021, the Court expressly noted that Anthony M. Davis is not licensed in California and is not permitted to represent Defendant, unless he seeks to appear as counsel pro hac vice. (ROA No. 40). Notably, no Application to Appear Pro Hac Vice has been filed in this action.
Despite the above, the subject discovery was served only on Anthony M. Davis, on November 18, 2021 – a date subsequent to the Court’s October 5, 2021 order. (¶2 of Knowles Declaration and Exhibits A and B thereto). Indeed, the underlying discovery was only served on Anthony Davis, despite the fact an Answer was filed for Defendant on September 13, 2021, by Ramon Derek Brett Livingston, a licensed California attorney. (ROA No. 28).
While the instant motions have purportedly been served on Mr. Livingston (see discussion above), Mr. Livingston does not appear to have been included in any of the discovery correspondences. Notably, all discovery responses at issue in this motion were served by Anthony Davis, purportedly on Defendant’s behalf. (¶4 and ¶6 of Knowles Declaration and Exhibits C and E thereto). While the responses to the subject discovery include within the caption “Pro Hac Vice Case No.: 00726358,” once again, no Application to Appear Pro Hac Vice has been filed in this action.
Based on all of the above, it does not appear Plaintiff’s Counsel has served discovery on Defendant’s licensed Counsel of Record. Similarly, it does not appear Defendant has served responses, via the same. In this context, it does not appear the instant Motions have been properly filed or are properly before the Court.
Plaintiff shall file, no later than 9 court days prior to the continued hearing date, a supplemental brief addressing the above issues, not to exceed 5 pages. Similarly, no later than 9 court days prior to the continued hearing date, Plaintiff shall file Proofs of Service which comply with Code of Civil Procedure section 1013b.