Judge Katherine Chilton, Case 22STCP03790 2023-02-15 Tentative Ruling

Judge: Katherine Chilton, Case: 22STCP03790, Date: 2023-02-15 Tentative Ruling

Case Number: 22STCP03790 Hearing Date: February 15, 2023 Dept: 25

PROCEEDINGS: APPLICATION TO APPEAR PRO HAC VICE

MOVING PARTY: Counsel Scott D. Ponce, for Petitioner Miami New Times, LLC

RESP. PARTY: None

APPLICATION TO APPEAR PRO HAC VICE

(CRC Rule 9.40)

TENTATIVE RULING:

The hearing on Counsel Scott D. Ponce’s Application to Appear Pro Hac Vice is CONTINUED to MARCH 15, 2023 at 10:00 a.m. in DEPARTMENT 25, SPRING STREET COURTHOUSE. Counsel is ordered to serve the amended Notice and supplemental papers on Respondent and file proof with the Court at least sixteen (16) court days before the next scheduled hearing. Failure to do so may result in the Application 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 February 8, 2023. [ ] Late [X] None

REPLY: None filed as of February 8, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On October 17, 2022, Petitioner Miami New Times, LLC (“Petitioner”) filed a Petition to Compel Compliance with Subpoena (“Petition”) against Respondent Erik Laibe (“Respondent”).

On October 19, 2022, Scott D. Ponce, Esq. (“Ponce”) filed the instant Application to Appear as Counsel Pro Hac Vice (“Application”) for Petitioner Miami New Times, LLC, in association with Counsel of Record Lydia L. Lockett, Esq. (“Lockett”).

On October 26, 2022, the Court denied Petitioner’s Ex Parte Application for Order Shortening Time for Notice and Advancing Hearing Dates on Petition to Compel Compliance with Subpoena and Application to Appear as Counsel Pro Hac Vice, filed on October 24, 2022. (10-26-22 Minute Order.)

On January 5, 2023, the Court continued the hearing on the instant Application to allow Counsel Ponce an opportunity to correct the courthouse address on the Notice and to file proof of paying the $50.00 application fee to the State Bar of California. (1-5-23 Minute Order.)

On January 20, 2023, Counsel filed an Amended Notice and a Supplemental Declaration of Lauren N. Moritz in support of the Application.

No opposition has been filed.

II. Legal Standard

California Rules of Court rule 9.40 provides that an attorney in good standing in another jurisdiction may apply to appear as counsel pro hac vice in the State of California by filing a verified application together with proof of service by mail of a copy of the application and notice of hearing on all parties who have appeared in the case and on the State Bar of California at its San Francisco office, with payment of a $50.00 fee, so long as that attorney is not a resident of the State of California, and is not regularly engaged in substantial business, professional, or other activities in the State of California. (Cal. Rules of Court, rule 9.40.)

“The application must state: (1) the applicant’s residence and office addresses; (2) the courts to which the applicant has been admitted to practice and the dates of admission; (3) that the applicant is a member of good standing in those courts; (4) that the applicant is not currently suspended or disbarred in any court; (5) the title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) the name, address, and telephone number of the active member of the State Bar of California who is attorney of record in the local action.” (Cal. Rules of Court, rule 9.40(d).)

III. Discussion

Counsel Scott D. Ponce (“Ponce”) has submitted the instant verified Application to appear as counsel pro hac vice for Petitioner Miami New Times, LLC, in association with Counsel of Record Lydia L. Lockett. (Ponce Decl. ¶ 1.) He has also submitted Proof of Service indicating that Respondent was served with the Notice and Application by overnight courier on October 20, 2022. (10-20-22 Proof of Service.)

Counsel Ponce declares that he has been admitted to practice in several jurisdictions and has provided the dates of admission. (Ibid. at ¶ 4.) Counsel has not been admitted to practice in the state of California. (Ibid.) He is a member of good standing in all jurisdictions and is “not currently suspended or disbarred in any court.” (Ibid. at ¶ 5.) He has provided his residence and home addresses, which are both located in the state of Florida. (Ibid. at ¶¶ 2-3.) Counsel has not applied to appear as counsel pro hac vice in California in the last two years. (Ibid. at ¶ 6.) Finally, Counsel provides the name, address, and telephone number of Petitioner’s attorney of record, who practices in California. (Ibid. ¶ 6.)

On January 5, 2023, the Court noted that despite substantial compliance with the requirements of such applications, Counsel had failed to submit evidence demonstrating that he paid the $50.00 application fee to the State Bar of California. (1-5-23 Minute Order.) The Court also noted that Counsel had filed a defective Notice of Application, containing the wrong address for the courthouse where the hearing would be held. (Ibid.) The Court continued the hearing on the Application to allow Counsel an opportunity to correct these deficiencies. (Ibid.)

On January 20, 2023, Counsel filed an Amended Notice and a Supplemental Declaration of Lauren N. Moritz in support of the Application.

Counsel has submitted a receipt emailed from the State Bar of California to Kim Campbell, Practice Assistant at Holland & Knight, for a Pro Hac Vice Application. (Supp. Decl. Moritz ¶¶ 7-8, Ex. 2.) The Court finds that Counsel has paid the application fee to the State Bar of California.

The Court also finds that Counsel has filed a corrected Notice. However, Counsel has improperly served the Amended Notice, Notice of Ruling, and supplemental papers to the self-represented Respondent via electronic transmission. (1-20-23 Amended Notice pp. 3-5; 1-20-23 Supp. Decl. pp. 15-20; 1-20-23 Notice of Ruling pp. 8-10.) Code of Civil Procedure § 1010.6 authorizes service of documents by electronic service (service by e-mail) in certain enumerated circumstances. Code of Civil Procedure § 1010.6(a)(2)(A)(ii) provides, “[f]or cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized” only: (1) “if a party . . . has expressly consented to receive electronic service in that specific action”, (2) “if . . . the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d)”, or (3) “if . . . the document is served electronically pursuant to the procedures specified in subdivision (e)”, that is, electronic service is made upon a party who is represented by counsel. (Code Civ. Proc., §§ 1010.6(a)(2)(A)(ii), (c), (d), (e).)

Accordingly, the Court once again continues the hearing. Counsel is ordered to properly serve the Amended Notice and supplemental papers on Respondent.

IV. Conclusion & Order

For the foregoing reasons,

Moving party is ordered to give notice.

The Court further notes that, on October 20, 2022, Petitioner filed Proof of Service indicating that Respondent was served with the Petition and Notice of Hearing on Petition by overnight courier. Respondent should have either been served by personal service or substitute service.