Judge: Michael Shultz, Case: 23STCV01110, Date: 2025-01-21 Tentative Ruling
DEPARTMENT 40 - MICHAEL J. SHULTZ - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call.
Case Number: 23STCV01110 Hearing Date: January 21, 2025 Dept: 40
23STCV01110 Karen Flores v. Everbrands,
Inc., et al.
[TENTATIVE] ORDER
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint alleges
wage and hour claims in violation of the Labor Code and a claim for unfair
competition and business practices against Defendants, Everbrands, Inc.,
(“Everbrands”), Yon Lai (“Lai”), and Michael Florman (“Florman”), who allegedly
employed Plaintiff. The individual defendants are alleged to be officers of
Everbrands.
II.
ARGUMENTS
Plaintiff argues
that Lai and Florman are self-represented since their counsel withdrew. Plaintiff
served Lai on September 9, 2024 by mail, with a notice to appear for
deposition. His email address and telephone number were not included in the
order permitting Lai’s counsel to withdraw. Lai has not responded to any
letters sent by Plaintiff. Lai has a history of discovery abuse for which the
court previously issued over $15,000 in sanctions against Defendants. The court
should impose more severe sanctions in the form of terminating, issue or
evidentiary sanctions, or alternatively monetary sanctions.
With respect to
Florman, Plaintiff also seeks terminating sanctions and other sanctions for his
repeated refusal to participate in this matter. Florman also fails to respond
to any of Plaintiff’s correspondence or telephone calls. His email and
telephone number were not included in the order relieving former counsel. Both
individual defendants have engaged in a history of discovery abuse, and
monetary sanctions will not achieve the desired goal of requiring Defendants to
participate in discovery.
Defendants Lai and
Florman contend the motion is defective for numerous reasons including that they
are untimely filed, Plaintiff did not meet and confer, that Plaintiff served the
individual defendants at an address for a company in which Lai is a passive
investor. Neither party received the deposition notice.
In reply,
Plaintiff states the court should strike the opposition, which was prepared by counsel
for Everbrands, Inc., Noel McCauley, who is not counsel for Lai or Florman. As
self-represented parties, neither Lai nor Florman can seek an award of
attorney’s fees incurred against Plaintiff.
III.
DISCUSSION
The court grants
Plaintiff’s motion to strike the declaration of McCauley, who does not
represent Lai or Florman as McCauley concedes. (McCauley decl., ¶ 2.) The
court’s file does not contain a substitution of attorney form or a limited
scope representation form for either party.
The motions are
denied for procedural reasons. Plaintiff did not serve the motion on all
parties. The motion regarding Lai was not served on Florman, and the motion
regarding Florman was not served on Lai, however, a party may be deemed to have
waived any irregularity by appearing at the hearing, opposing the motion, not
asking for a continuance and not demonstrating any prejudice resulting from the
defective notice. (Carlton
v. Quint (2000) 77 Cal.App.4th 690, 697.)
Notices
of deposition must be served on all other parties appearing in the action. (Code
Civ. Proc., § 2025.240 subd. (a).) The Notice of
Florman’s Deposition was served only on Florman but not Lai and Evergreen. (Plaintiff’s
Ex. 2.) The Notice of Lai’s Deposition was served only on Lai. (Plaintiff’s
Notice of Errata). Florman’s opposition was served only on Plaintiff and
Florman in violation of Code Civ. Proc., § 1005
(b).
This case
suffers from more fundamental defects that have not been addressed or cured by
the parties. The Hon. Justice Richardson granted former counsel’s motions to be
relieved as counsel for all Defendants. (M.O. 7/9/24.) However, only one signed
order has been filed relieving counsel as attorney for Everbrands. (Ord. 7/24/24.) The proposed orders relieving former
counsel as to Lai and Florman received 3/28/24 are unsigned. Former counsel
confirmed only the mailing address of Everbrands, but did not disclose contact
information for Lai or Florman. (Decls. 3/28/24.)
The order
granting a motion to be relieved requires the clients to disclose a confirmed,
current address and telephone number. (Cal.
Rules of Court, Rule 3.1362.) Defendants Florman and Lai are ordered to
provide written notice of their current address and telephone number to the
court and all parties. Without this information, Plaintiff’s ability to meet
and confer with Florman and Lai on any issue is hampered and also prevents this
court from serving notices to either party to require their appearance.
IV.
CONCLUSION
Based
on the foregoing, Plaintiff’s two motions to compel the depositions of Yon Lai
and Michael Florman are DENIED.