NOTICE: To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7858 (Department 53) by 4:00 p.m. the court day before this hearing and advise opposing counsel. If no call is made, the tentative ruling becomes the order of the court. Local Rule 3.04. Judge McMaster discloses that attorneys appearing in cases on todays calendar may have donated to the Committee for Judicial Independence which was formed to oppose the attempted recall of judge McMaster. A list of donors and amounts donated is under the custody of court executive officer Jody Patel and can be reviewed at room 611, sixth floor, courthouse, 720 Ninth Street. Department 53 Superior Court of California 800 Ninth Street, 3rd Floor LOREN E. MCMASTER, Judge T. West, Clerk V. Carroll, Bailiff Friday, April 21, 2006, 2:00 PM Item 1 03AS05039 YIKUNO COPELAND VS. JESSICA L. SHARP Nature of Proceeding: Motion To Strike Filed By: Jones, Michael G. Defendant's motion for terminating sanctions is denied. Plaintiff failed to obey the Court's order of February 15, 2006 directing him to respond to defendant's discovery requests. Plaintiff has filed an opposition indicating that he will provide the responses before the time of the hearing. Under the circumstances, terminating sanctions are not justified. Monetary sanctions were not requested. Plaintiff shall serve responses not later than April 21, 2006. This minute order is effective immediately and no formal order is required. Item 2 03AS06439 SUSAN SHAPIRO VS. SUTTER MEDICAL GROUP, ET AL Nature of Proceeding: Motion To Compel Filed By: Bowman, Robert Plaintiff's motion to compel depositions is denied. Plaintiff noticed the depositions of Mahla, Sells, and Ison for April 18, 2006 by mail and provided only 13 days notice. Plaintiff renoticed the deposition of Ison for April 24, 2006 by FAX. Plaintiff states the original notices were also sent by FAX. Mail service is defective because it was untimely. As for FAX service, there is no written agrement for such as required by CCP section 1013(e). Plaintiff's argument that there is an implied agreement for FAX service is without legal support. The fact that some documents have been served by FAX does not change the requirements of section 1013(e). In any event, defendant's attorney declares he has never agreed to FAX service and has always served pleadings and notices by mail or personal service except when the Court has ordered service by FAX. Expert discovery closes on April 23, 2006 and the trial is set for May8, 2006. Defendant is entitled to begin trial preparation without having to attend depositions. This minute order is effective immediately and no formal order is required. Item 3 04AS02960 WAYNE GUINN, ET AL VS. C M C STEEL FABRICATORS, INC., ET AL Nature of Proceeding: Motion To Compel Filed By: Davis, Jonathan E. Plaintiffs' motion to compel defendant to produce documents is denied. Plaintiff Wayne Guinn was an employee of Fru-Con, the general contractor on the Consumnes Power Plant Project. Fru-Con is not a party to this action. Plaintiff was injured when he stepped over an open bundle of rebar. Defendant is a steel subcontractor who was furnished and installed rebar. In December defense counsel traveled to Fru-Con's corporate office in St. Louis to inspect documents related to the site. Counsel reviewed hundreds of photographs and selected and copied certain ones. Plaintiffs have demanded that defendant produce the documents. Defendant refuses to do so on the grounds that (1) the discovery seeks documents protected by the attorney work-product privilege and (2) the documents are equally available to plaintiffs. Fru-Con has stated that plaintiffs may have the same access to the documents that defendant had. The documents are as availabale to plaintiffs as they were to defendant. Defense counsel's choice of which photographs to copy is counsel's work product. Nacht & Lewis Architects, Inc. (1996) 47 Cal. App. 4th 214, 217. Not all the documents were deemed to be of equal importance. Counsel made the selection based on what she believed would best support her client's defense. Counsel's work consisted of her impressions of the relative effectiveness for the defense case of the particular photos. Her efforts are clearly protected by the attorney work-product privilege. The discovery statutes mandaate the the party who unsuccessfully made a discovery motion incur monetary sanctions, unless the court finds that the motion was filed with substantial justification. Since defendant's counsel's efforts here is a classic example of attorney work-product, the Court cannot find that the motion was filed with substantial justification. Monetary sanctions are imposed against plaintiffs in the amount of $980 (7 hours, $140.00 per hour). Sanctions shall be paid by May 21, 2006. This minute order is effective immediately and no formal order is required. Item 4 04AS03863 THOMAS WITTE VS. MARVEN STROH, ET AL. Nature of Proceeding: Motion For Judgment On Pleadin Filed By: Barrett, David S. Defendant's motion for judgment on the pleadings is granted. Defendant's motion for judgment on the pleadings is granted. The first cause of action for breach of contract fails as the contract at issue (the ttorney retainer and fee agreement) is illegal and unenforceable. The allegations of this cause of action do not comply with B&P Code section 6148(a) because tjhe complaint does nott contain the "general nature of the legal services to be provided to the client." "To prosecute the action of Stroh v Stroh" is so broad as to be meaningless. The agreement also fails to comply with B & P Code section 6148(a)(3) in that it fails to set forth the obligations and responsibilities of the attorney and the client. The purported lien referenced violates the Rules of Professional Conduct, Rule 3-300. The lien is an adverse interest and the client Stroh must be advised of his right to seek independent advice. There is no such advisement in the contract. The cause of action for fraud is merely an iteration of the breach of contract cause of action. There is no legal duty alleged other than that related to the contract. "An omission to perform a contract obligation is never a tort unless that omission is also an omission of a legal duty." Applied Equipment Corp.v Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515. Plaintiff's request for leave to amend to state a claim for quantum meruit is granted. A party may properly request leave to amend when faced with a demurrer or a motion for judgment on the pleadings without having to file a noticed motion. The court is unclear whether or not an action for quantum meruit will lie if the offending portion of the agreement (lien) is deem stricken. When a contact is unenforceable, it may nonetheless be possible for the attorney to recover the value of the services rendered. The question the court has is whether a claim for quantim meruit may be stated if the lien claim language is disregarded. Since the Court cannot anticipate how the amended complaint will be drafted, and since the Court desires full briefing on the issue before disposing of the claim, Plaintiff is granted leave to amend to seek to state a cause of action for quantum meruit. The amended complaint shall be filed and served no later than May 1, 2006, and any responsive pleading thereto shall be filed ten days thereafter (15 days if served by mail). This minute order is effective immediately and no formal order isrequired. Item 5 04AS03877 BEVERLY BLENKINSHOP VS. DPR, INC. Nature of Proceeding: Summary Judgment Filed By: Thomas, Jennifer R. Defendant’s motion for summary judgment is denied. Plaintiff was injured on November 6, 2003 when she tripped and fell on a loose tile on the second floor of the Kaiser facility where she worked. Defendant was performing major renovations at the time and was working on the first floor. Plaintiff contends that defendant’s work on the first floor caused the damage to the second floor. She believes that work occurring in the evening of November 5, 2003 the second floor. She believes that work occurring in the evening of November 5, 2003 caused the damages. Plaintiff argues there were numerous activities that could have impacted the second floor, including HVAC, plumbing electrical, and work on the walls and soffits. Defendant’s exhibit I, New Phasing Schedule dated November 24 is the most accurate record of work done on November 5 or 6. Defendant’s superintendent, Kaster, testified that the schedules are continuously updated to reflect projected and actual completion of various phases of the project. The schedule shows that framing walls and soffits was the only work done between November 3 and November 11. Prior to that PARC had removed the fire proofing. This was done by hand and did not involve power tools. (Kaster deposition, pages 69-70.) Kaster testified that it was not possible for PARC’s work to cause the tile above to shift. (Kaster deposition, page72.) Framing the walls and soffits involved shooting pins into the ceiling. (Kaster deposition, page 85.) HVAC was done from November 6 to November 12. Kaster testified that this work would not have disrupted the tile. (Kaster deposition, page 87.) As plaintiff has testified the tile was in place on November 5, the only time it could have been damaged would have been the night of November 5 and before 6AM on November 6. The only work done was framing the walls and soffits. Kaster was unequivocal that the pins could not have damaged the tile above the ceiling. Later on November 6 defendant repaired the tile. (Plaintiff’s deposition, page 41.) Kaster had no knowledge of this repair. However, he did testify that there have been times when the tile was disrupted when defendant was working in the area, below or around it, and that defendant would repair it even if it did not actually cause the damage. (Kaster deposition, page 74). There is a factual dispute as to whether defendant’s work on the night of November 5 - 6 could have disrupted the tile. Kaster said it was not possible because the concrete is five inches thick and the pins are two and one half inches longs. Kaster acknowledged tile damage had occurred in areas near where defendant worked. The fact that the pins were not long enough to penetrate the concrete does not mean that the tile could not have been damaged by some other aspect of defendant’s work (e.g. vibrations). Whether defendant repaired the area or knew of plaintiff’s injury is immaterial as to whether its work caused the tile to come loose. Plaintiff’s evidence objections to the declaration of Pugh are sustained. If he had no personal knowledge of the work done, he also had no personal knowledge that any work could have damaged the tile. Defendant’s evidence objections to the declarations of Clark, Lata and Kirtley are sustained as to page 2 lines1 - 3. However, it is not disputed that plaintiff tripped and fell. Lata and Kirtley may state that they saw the persons who repaired the tile and state their belief that they were defendant’s employees. As noted above, who repaired the tiles does not determine the outcome of this ruling. Defendant’s objections to certain exhibits on the ground of relevancy are overruled. Plaintiff shall submit a formal order pursuant to CCP 437c(g) and CRC rule. Item 6 05AS00163 RENE CARTER VS. ALTA'S PLACE, INC. ET AL Item 6 05AS00163 RENE CARTER VS. ALTA'S PLACE, INC. ET AL Nature of Proceeding: Motion For Summary Adjudicatio Filed By: Kropf, Marcos Plaintiff's motion for summary adjudication is denied. Plaintiff has alleged seven causes of action. Plaintiff's separate statement does not comply with CRC rule 342 (d). Plaintiff's notice and separate statement do not set forth which causes of action she seeks to have adjudicated and it is not clear from the separate statement to which causes of actions it applies. It is improper to require the opposing party and the Court to guess at what cause of action is sought to be adjudicated. The motion is denied for the further reason that plaintiff seeks the court to summarily adjudicate issues. The Court can only adjudicate matters that completely dispose of a cause of action. CCP section 437(f)(1). Plaintiff's claims of duty are specious. The gravamen of the complaint is that defendants violated provisions of rthe Labopr Code. In any event, adjudication that defendant did or did not owe a duty to plaintiff is proper only if it completely disposes of a claim or defense. See Regan Roofing Co. v. Superior Court (1994) 24 Cal.App.4th 425, 435. This minute order is effective immediately and no formal order is required. Item 7 05AS02225 VERNON EUGENE WHITEHOUSE VS. SENIOR GLEANERS INC., ET AL Nature of Proceeding: Motion To Amend Answer Filed By: Brereton, Drew Defendant Murillo's motion for leave to file an amended answer is unopposed and granted. DXefendant shall file and serve his amendedanswer by April 24, 2006. Item 8 05AS03689 PEOPLE OF THE ST OF CA VS. GENERAL STEEL DOMESTIC SALES,ETAL Nature of Proceeding: Motion To Compel Filed By: Doolittle, Patrick This matter is continued to 4/24/2006 at 02:00PM in this department. Item 9 05AS03951 CHRISTO ASIMAKOPOULOS VS. MICHAEL DAVID, M.D., ET AL Nature of Proceeding: Motion To Compel Interrogatories And Documents Filed By: Thornton, Larry Defendant's motion to compel plaintiff to respond to discovery is unopposed and granted. Compliance without objections shall be by May 1, 2006. This minute order is effective immediately and no formal order is required Item 10 05AS04391 DAVID MICHAEL BRISTER, ET AL VS. OLLIE B BURGER, ET AL Nature of Proceeding: Default Hearing Nature of Proceeding: Default Hearing Filed By: Glick, Peter E. This matter is continued to 4/28/2006 at 02:00PM in this department. Item 11 05AS04957 TERCAR, INC., ET AL VS. AARON L. SWICKARD, ET AL Nature of Proceeding: Motion To Compel Responses, Deposition Attendance and Attorney's Fees Filed By: Jurkovich, Michael J. Plaintiff's motion to compel Inna Swickard to provide further substantive responses to discovery is unopposed and granted. Plaintiff's motion for an order that certain matters be deemed admitted is also granted unless defendant serves responses in substantial compliance with CCP sections 2033.210, 2033.220, and 2033.230O before the hearing. CCP 2033.280. Objections to the requests for admissions are wavied as they were not timely. If plaintiff receives responses to the requests for admissions before the hearing it shall inform the Court. Defendant also shall attend her deposition and take the oath at a time and place to be noticed by defendant. Sanctions are mandatory on the requests for admissions. Although the Court ordinarily does not impose sanctions when a motion to compel is unopposed, in this case the defendant has engaged in a pattern of abuse of the discovery process and sanctions are appropriate to deter such conduct in the future. Sanctions are ordered pursuant to CCP 2023.010 (d) and (e) for misuse of the discovery process. When plaintiff attempted to obtain pertinent records, defendant moved to quash the subpoena. That motion was denied. She refused to take the oath at her deposition and refused to be deposed. Her objections to the discovery propounded by plaintiff are without merit, if not frivolous. Sanctions are ordered in the amount of $7873.50. The Court has awarded fees for both attorneys for this motion and for time spent related to the failed deposition: Attorney Fox 31.8 hours at $120 per hour, Attorney Jurkovich 10.15 hours at $250.00n per hour, $120 for filng fees. Sanctions shall be paid by May 21, 2006. This minute order is effective immediately and no formal order is required Item 12 05AS05385 CALIFORNIA GAMBLING CONTROL COMM VS. SYLVIA BURLEY ET AL Nature of Proceeding: Motion To Quash Service Summon Filed By: Steele, George L. This matter is continued to 6/15/2006 at 02:00PM in this department. Item 13 05AS05385 CALIFORNIA GAMBLING CONTROL COMM VS. SYLVIA BURLEY ET AL Nature of Proceeding: Motion To Discharge Liability Filed By: Le Forestier, Marc A. This matter is continued to 6/15/2006 at 02:00PM in this department. Item 14 05AS05385 CALIFORNIA GAMBLING CONTROL COMM VS. SYLVIA BURLEY ET AL Nature of Proceeding: Demurrer Nature of Proceeding: Demurrer Filed By: Steele, George L. This matter is continued to 6/15/2006 at 02:00PM in this department. Item 15 05AS05467 MARK BUCKMAN VS. JOHN LEFAKIS ET AL Nature of Proceeding: Motion for Sanctions (Debbie Depo) Filed By: Prokop, Tyler S. Plaintiff's request for imposition of sanctions for his motion to compel defendant Debbie Lefakis to attend her deposition is denied. The motion was continued to this date as to the award of attorneys’ fees, only. Sanctions are denied because the motion was not opposed, and the court finds that other circumstances make the imposition of sanctions unjust. Code of Civil Procedure section 2025.450(c). The Court is displeased by the ad hominem attacks between counsel, and the apparent lack of professional courtesies extended by moving party to defendants. The Court is also displeased by the unprofessional tactics of moving party by engaging in "Rambo" litigation tactics against his former clients and continuing to communicate directly with the defendants regarding settlement demands and threats knowing that they were represented by counsel. “The profession of the law possesses extraordinary powers. Lawyers can make the arrogant humble and the weak strong. In control of the course of litigation and armed with the knowledge of right and wrong, they are most able to abjure illegal or tortious conduct; it is their duty to do so. As occupants of a high public trust and officers of the court, they are expected to conform their behavior in legal affairs to a higher standard of rectitude and spirit of obedience than those who are willing to endure the dust of transgression. Guided by oath, duty and obligation, the lawyer’s path avoids the vices from which the virtuous abstain.” Kimmel v. Goland (1990) 51 Cal.3d 202, 214. ”‘[I]t is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law.’ (People v. Chong (1999) 76 Cal.App.4th 232, 243.) Indeed, unwarranted personal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct. (Id. at p. 245; see also Stone v. Foster (1980) 106 Cal.App.3d 334, 355.)” In Re S.C. (April 7, 2006) ___Cal.App.4th ___, 2006 Cal. App. LEXIS 482, 3 DCA, slip opinion, p. 22 The barrage of discovery served at the earliest possible time in the case, and the subsequent refusal to extend time, could be found to be burdensome oppressive and hence a misuse of the discovery process. (Code of Civil Procedure section 2023.01 (c)) and unprofessional (Appendix to Sacramento Superior Court Local Rules). As soon as it was possible under the statutory provisions, Plaintiff unleashed the following discovery barrage on his former clients: Deposition notices to each defendant, form interrogatories to each defendant, special interrogatories to each defendant, form interrogatories to each defendant, special interrogatories to each defendant, requests for admission to each defendant, and requests for production of documents to each defendant. The Court incorporates herein the discussion of Plaintiff’s conduct in item 16 on today’s calendar. Therefore the Court orders as follows: 1. The Court on its own motion grants reconsideration of all its prior rulings that determining that Requests for Admissions were deemed admitted and all orders that imposed monetary sanctions against defendants (four motions on 3/7/06, four motions on 3/13/06, one motion on 3/15/06, and four motions on 3/33/06) and will reconsider whether or not such orders are appropriate in light of all of the facts in this case. Said hearing shall be held on May 19, 2006, 2:00 p.m. in Department 53. Plaintiff shall file and serve any memorandum he chooses to file no later than May 8, 2006. Defendants may file and serve any reply memorandum no later than May 15, 2006. 2. The court orders Plaintiff Mark Buckman and his attorney, Tyler Prokop, to show cause, if any they have, on May 19, 2006, 2:00 p.m., Department 53, why they should not be sanctioned for misusing the discovery process in this case. See Code of Civil Procedure section 2023.010(c). The Court advises Plaintiff and counsel that the sanctions being contemplated are the imposition of monetary sanctions to reimburse defendant for attorneys’ fees incurred in responding to Plaintiffs’ discovery motions. See Code of Civil Procedure section 2023.030. 3. Not later than April 24, 2006, Defendants’ counsel shall file and serve attorney time records and attorneys' fees incurred in responding to Plaintiffs’ discovery motions in this case. 4. Not later than May 8, 2006, Mr. Buckman and Mr. Prokop shall file and serve their responses to the Court’s order to show cause and their argument, if any, why sanctions should not be imposed, or any limitation thereto. 5. Not later than May 15, 2006, Defendants may file and serve any Reply Memorandum deemed appropriate. 6. Not later than May 8, 2006, Plaintiff shall file and serve a document that sets forth a list of all discovery demands served on Defendants by Plaintiff, the date each discovery demand was served, and a notation of the present status of each discovery demand. The Court hereby stays all discovery by Plaintiff directed to defendants until further order of the Court. This minute order is effective immediately and constitutes sufficient notice of the Court’s grant of reconsideration on its own motion, the Court’s issuance of the order to show cause to Mssrs. Buckman and Prokop, and the Court’s stay of further discovery by Plaintiff. No formal order is required. This minute order is effective immediately and no fomal order is required. Item 16 05AS05467 MARK BUCKMAN VS. JOHN LEFAKIS ET AL Nature of Proceeding: Motion for Sanctions (John Docs) Nature of Proceeding: Motion for Sanctions (John Docs) Filed By: Buckman, Mark F. (Continued to this date for oral argument only.) Plaintiff's request for imposition of sanctions on motion to compel defendant John Lefakis to respond to request for production is unopposed but denied. The motion was continued to this date as to the award of attorneys’ fees, only. Sanctions are denied because the motion was not opposed. See March 6, 2006 Plaintiff’s Reply/ Consolidated Notice of Non-Opposition to Plaintiff’s Discovery Motions calendared for March 13, 2006, and continued by the Court to this date. Although CRC 341 purports to authorize sanctions if a motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery (Code of Civil Procedure section 2030.300(d)) authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355. However, repeated failures to comply with discovery obligations may lead the Court to find an abuse of the discovery process and award sanctions on that basis. If the motion were opposed, the sanctions would still be denied as being unjust under the circumstances. See ruling on item 12. This minute order is effective immediately and no formal order is required, Item 17 05AS05467 MARK BUCKMAN VS. JOHN LEFAKIS ET AL Nature of Proceeding: Motion for Sanctions (John Rogs) Filed By: Buckman, Mark F. (Continued to this date for oral argument only.) Plaintiff's request for imposition of sanctions on motion to compel defendant John Lefakis to answer interrogatories is unopposed but is denied. The motion was continued to this date as to the award of attorneys’ fees, only. Sanctions are denied because the motion was not opposed. See March 6, 2006 Plaintiff’s Reply/ Consolidated Notice of Non-Opposition to Plaintiff’s Discovery Motions calendared for March 13, 2006, and continued by the Court to this date. Although CRC 341 purports to authorize sanctions if a motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery (Code of Civil Procedure section 2031.300(c)) authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355. However, repeated failures to comply with discovery obligations may lead the Court to find an abuse of the discovery process and award sanctions on that basis. If the motion were opposed, the sanctions would still be denied as being unjust under the circumstances. See ruling on item 12. This minute order is effective immediately and no formal order is required, Item 18 05AS05467 MARK BUCKMAN VS. JOHN LEFAKIS ET AL Nature of Proceeding: Motion for Sanctions (John RA) Filed By: Buckman, Mark F. (Continued to this date for oral argument only.) This matter is continued to 5/19/2006 at 02:00PM in this department. . This order is sufficient notice of the continuance. No formal order is required. Item 19 05AS05467 MARK BUCKMAN VS. JOHN LEFAKIS ET AL Nature of Proceeding: Motion To Set Aside Default Filed By: Alam Jesmin (Continued to this date for oral argument only.) Defendants’ Motion to set aside the default and the entry of the Clerk’s default judgment is unopposed and granted. Defendants’ objection to Plaintiff’s late filed opposition is sustained. The Court declines to consider plaintiff’s late-filed memorandum. CRC Rule 317(d). Throughout the brief, but turbulent, life of this case, Plaintiff has sought to strictly enforce deadlines regarding defendants. He can hardly be heard to complain when the consequence he demanded be imposed on defendants is applied to him. Even if the motion were opposed with a timely filed memorandum, the motion would still be granted. This case is a lawsuit by an attorney against his former clients seeking to recover allegedly unpaid fees. While the Court expects professional and ethical conduct in every case, such is especially true when an attorney sues persons who were his former clients and to whom he owed a fiduciary duty. York v. Superior Court (1979) 90 Cal.App.3d 669, 675. While attorney sharp practices are never proper, they are even more inappropriate when a lawyer sues his former clients. Plaintiff knew that new counsel substituted in as attorney of record for his former clients on or about March 6, 2006. Defendants’ new counsel made a request for a three week extension in which to file a responsive pleading. This request was entirely reasonable given the barrage of discovery that Plaintiff served on his former clients at the earliest possible time (10 days after service of the summons and complaint). Plaintiff declined to respond to the request, and instead entered Defendants’ default. The tactic of “quiet speed” to obtain the default is improper. While earlier letters may have threatened a default, Plaintiff did not respond to the Defendants’ request for a continuance. An attorney, who knows that the defendants are represented by counsel, has an ethical obligation to specifically inform such counsel prior to taking the default. has an ethical obligation to specifically inform such counsel prior to taking the default. Smith v. Los Angeles Bookbinder’s Union No. 63 (1955) 133 Cal.App.2d 486, 500. Plaintiff’s tactic in quickly and silently running to the courthouse to “beat” the filing of a responsive pleading, and thereafter refusing to stipulate to set aside the default after learning that a responsive pleading was to be filed the following day, must not be rewarded. Given the recent substitution of attorneys, the flurry of discovery unleashed on defendants at the earliest possible time, and the reasonable expectation that plaintiff would extend normal professional courtesies (See e.g., the Appendix to the Sacramento County Local Rules incorporating the standards of conduct adopted by the Sacramento County Bar Association), the failure to beat plaintiff to the courthouse constitutes excusable neglect or mistake, thereby warranting the court setting aside the default and default judgment. See Elston v. City of Turlock (1985) 38 Cal.3d 227, 233. The Court also notes that from the inception of this case until the present Plaintiff’s conduct toward defendants has been unprofessional, if not unethical. Besides the “quiet speed” default of his former clients, and the bombardment of substatial discovery requests without providing the courtesy of reasonable extensions, Plaintiff has continued to communicate directly with the defendants notwithstanding that he knew that they were and are represented by counsel. See, e.g. Mr. Buckman’s letters to Mr. and Mrs. Lefakis dated March 17, 2006 (Exhibit H to Defendant’s motion to set aside default) and March 27, 2006 (Exhibit K to Ex Parte Application to set aside default filed March 28, 2006). Such conduct is a direct violation of the Rules of Professional Conduct, Rule 2-100. Plaintiff’s conduct in violating Rule 2-100 is particularly egregious since his communications directly with Mr. and Mrs. Lefakis, who he knew to be represented by counsel, concerned settlement demands, threats of dire consequences should his demands not be met, and comments seeking to undermine Mr. and Mrs. Lefakis’ confidence in their attorney. It is difficult to imagine a more blatant violation of Rule 2- 100. The conduct of Plaintiff and his counsel in the discovery process is set forth in the ruling in item 12, which ruling is incorporated herein by this reference. The Court orders the Clerk to transmit a copy of this ruling, as well as the ruling in item 12 on today’s calendar, along with copies of Mr. Buckman’s letters of March 17 and 27 to the State Bar of California. This minute order is effective immediately and no formal order is required. Item 20 05AS05787 ENGINEERED GLASS WALLS, INC VS. DOUGLAS E. BARNHART ET AL Nature of Proceeding: Demurrer Filed By: Petray, Andrea L. This matter is continued to 5/30/2006 at 02:00PM in this department. Item 21 04AM10285 KATHLEEN S. DEDMAN VS. JIMMYED MORRISON Nature of Proceeding: Default Hearing Filed By: Dedman, William Appearance required. Item 22 06CS00355 IN RE: ROBERT POWERS Nature of Proceeding: Petition For Change Of Name Filed By: Powers, Robert The petition for name change is unopposed and is granted. Item 23 06CM00049 NATIONAL CREDIT ACCEPTANCE, INC. VS. LEE S. GARRIDO ET AL Nature of Proceeding: Petition To Confirm Arb Award Filed By: Pugh, John J. This matter is dropped from calendar.
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