Judge Matthew C. Braner, Case Number: 37-2023-00037152-CU-BT-CTL, Date: 2024-04-12 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2023-00037152-CU-BT-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 11, 2024

04/12/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Business Tort Discovery Hearing 37-2023-00037152-CU-BT-CTL FISHER VS INTERNATIONAL COFFEE & TEA LLC [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Plaintiff Lizette Fisher's motion to compel discovery responses is DENIED.

Defendant International Coffee & Tea, LLC's motion to stay further discovery is GRANTED.

Motion to Compel According to Plaintiff's counsel, Defendant was served by mail with sets of form interrogatories, requests for production, and requests for admission on September 12, 2023. (ROA #19, Kuhn Dec., � 3.) Plaintiff mailed the discovery to Defendant's agent for service of process. (Kuhn Dec., Ex. A.) With five days added for mail service, Plaintiff calculates the original deadline to respond to the requests as October 17, 2023; but because discovery was stayed while this case was in federal court from October 2, 2023 to December 12, 2023, Defendant had until December 27, 2023 to respond. (Kuhn Dec., �� 3-5.) Defendant did not respond, prompting the filing of Plaintiff's motion on December 29, 2023. (Kuhn Dec., � 6.) In opposition, Defendant's counsel attests he was not aware the discovery had been mailed to Defendant until he received Plaintiff's motion; only a set of special interrogatories served by Plaintiff on September 13, 2023, also to Defendant's agent for service of process, had been forwarded to counsel prior to September 22, 2023. (ROA #55, Jones Dec., �� 4, 10.) After investigating the issue, counsel learned Plaintiff had served the form interrogatories, requests for production, and requests for admission the day prior to serving the special interrogatories, and the separate written discovery confused Defendant. (Jones Dec., � 10.) The parties then met and conferred via a series of letters from January 2, 2024 to February 16, 2024. (Jones Dec., Ex. 5.) Although Defendant's counsel believed service of the written discovery by mail to Defendant's agent for service of process was improper, Defendant nonetheless responded to the discovery on February 20, 2024.

Service by mailing to Defendant's agent for service of process was improper. Plaintiff's reliance on Code of Civil Procedure section 2030.020 is unavailing; whether a plaintiff has leave to propound interrogatories has no bearing on whether the manner of serving those interrogatories, or any other written discovery, was legally authorized.

The Discovery Act (Title 4) specifies that 'Sections 1011 and 1013 apply to any method of discovery or service of a motion provided for in this title.' (Code Civ. Proc., � 2016.050.) Section 1011 is inapplicable here, as Plaintiffs did not personally serve the discovery nor send the documents to an attorney's office.

(Code Civ. Proc., � 1011, subd. (a).) Section 1013 permits service to a party by mail, but it must be sent Calendar No.: Event ID: TENTATIVE RULINGS

3071595 25 CASE NUMBER: CASE TITLE: FISHER VS INTERNATIONAL COFFEE & TEA LLC [E-FILE] 37-2023-00037152-CU-BT-CTL to 'the office address as last given on any document filed in the cause and served on the party making service by mail; otherwise at that party's place of residence.' (Code Civ. Proc., � 1013, subd. (a).) At the time Plaintiff mailed the discovery, Defendant had not filed or served any documents in this case; as such, Plaintiff's only option was to mail the discovery to Defendant's residence. But the court does not believe a corporate entity's address for service of process can or should be construed as its 'residence' for purposes of this Code section, given the limitations a corporate defendant faces in defending itself in court. An entity like Defendant cannot defend itself in court without an attorney and would be subject to a default if it failed obtain representation and respond to a complaint. (See Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284, fn. 5; see also Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 725, 729-31 [reaffirming the well-established rule that a 'corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney.' (quoting Vann v. Shilleh (1975) 54 Cal.App.3d 192, 199)].) The court recognizes the practical effect of this conclusion: a plaintiff is effectively barred from serving discovery on a corporate defendant at the outset of a case until it is represented by counsel. However, this result makes sense due to a corporate defendant's inability to represent itself in court, and it appears intentional on the part of the legislature given the service limitations specified by the Discovery Act.

In sum, Plaintiff's service of the discovery on Defendant's agent for service of process was improper; Defendant was and is not obligated to respond to it. Plaintiff's motion to compel is therefore denied.

Motion to Stay Further Discovery Defendant requests the court exercise its discretion to stay further discovery in this case until the hearing on its demurrer to the first amended complaint. (Code Civ. Proc., � 2019.020, subd. (b); see also Philippine & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1084 ['In general, the management of discovery matters lies within the sound discretion of the trial court.'].) Given Plaintiff's conduct described above in relation to its motion to compel, and further described below, the court is inclined to grant Defendant's request.

First, the court is troubled by Plaintiff's initial discovery tactics. Plaintiff and her counsel attempted to serve written discovery on what they must have known (having mailed the discovery to Defendant's agent for service of process, and not to its attorney) was an unrepresented corporate entity only 11 days after service of process. Had this tactic been deployed against an unrepresented individual defendant with authorized service to his or her residence, the court would not view it favorably, would likely give the defendant leeway if the subsequent responses were late or deficient, and would expect the plaintiff to extend the professional courtesy of an extension of time to respond once the defendant retained counsel. The court similarly views with disfavor Plaintiff's attempt to improperly serve Defendant's agent for service of process with written discovery.

Second, Plaintiff and her counsel not only improperly served the written discovery, but they also knew or should have suspected Defendant's counsel was unaware written discovery beyond the special interrogatories had been mailed to Defendant. (ROA #55, Jones Dec., Ex. 2 [email on September 22, 2023 from attorney Jones to Plaintiff's counsel informing them he represents Defendant, requesting a 15-day extension to respond to the complaint, and confirming receipt of only the special interrogatories and requesting a stay of discovery].) After the case was remanded from federal court, Plaintiff ignored Defendant's email requesting an extension on responding to the special interrogatories, waited until after close of business on December 28, 2023 to send a 'meet and confer' letter in which she claimed discovery was due that same day, then filed the motion to compel the following day. (ROA #30, Jones Dec., �� 5-6, Ex. C.) Once Defendant became aware of the written discovery that was the subject of Plaintiff's motion, and despite its (correct) assertion the discovery was improperly served, it engaged in a lengthy meet and confer process before serving responses. Plaintiff nonetheless refused to withdraw the motion unless Defendant agreed to several unreasonable concessions/admissions related to class certification.

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3071595 25 CASE NUMBER: CASE TITLE: FISHER VS INTERNATIONAL COFFEE & TEA LLC [E-FILE] 37-2023-00037152-CU-BT-CTL In sum, Plaintiff has already misused discovery procedures and appears ready to continue doing so, and has evidenced an unwillingness to collaborate with Defendant on discovery issues or extend reasonable professional courtesies. Under these circumstances, a stay of discovery is appropriate until the pleadings have been resolved and the case is fully at issue.

Accordingly, Defendant's motion to stay is granted. Further discovery in this case is stayed until June 7, 2024, when Defendant's demurrer to the first amended complaint is scheduled to be heard. The court will assess whether to lift the stay or keep it in place after it has ruled on the demurrer.

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