MCKAGUE LAW GROUP, PC vs SHIRLEY

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided. TENTATIVE RULING: The moving papers do not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06.

Moving defendant is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving defendant is unable to contact opposing counsel prior to the hearing, moving defendant is ordered to appear at the hearing in person, by Zoom or by telephone.

Defendant in pro per Cole’s motion for order “staying all discovery requests related to

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 06/17/2025 Hearing on Motion - Other to Stay Discovery in Department 53

the Answer of Verified Complaint for Interpleader and cross-complaint filed by The Bowen Law Firm on behalf of Gary Shirley, Elaine Shirley and Lori McCracken, pursuant to California Code of Civil Procedure §2030.090(b)” is ruled upon as follows.

Factual Background

This is an action for interpleader by a law firm which previously negotiated a settlement on behalf of its clients, who were unable to agree on a distribution of the settlement proceeds. Defendant Cole filed an answer to the complaint on 12/19/2024 but defendants McCracken and Shirley also filed a cross-complaint against defendant Cole for declaratory relief, common counts and accounting. Defendants McCracken and Shirley later propounded discovery requests on defendant Cole, consisting of interrogatories, requests for production and requests for admissions.

Defendant Cole now seeks an order “staying all discovery requests” served by The Bowen Law Firm on behalf of its clients “pursuant to California Code of Civil Procedure §2030.090(b)” the grounds that “(1) Defendant [Cole] has filed a request for entry of default, which remains pending; (2) the answer [of defendants McCracken and Shirley] has not been properly served on Defendant [Cole]; (3) the cross-complaint [of defendants McCracken and Shirley] has not been properly served on Defendant [Cole]; and (4) proceeding with discovery at this stage would be procedurally improper and unduly prejudicial to Defendant [Cole].” (Mov Papers, p.1:16-25.)

Defendants McCracken and Shirley oppose, arguing that this motion should be denied because “Defendant [Cole] has not demonstrated a likelihood of success on the merits, irreparable harm, or that the balance of equities and public interest favor a stay on discovery” and even if service of the Answer, Summons and Cross-Complaint were not properly completed, defendant Cole “has no right to request a stay of discovery in this matter as all the parties have properly appeared, and he cannot legally make a Request for Entry of Default.” (Opp., p.1:28-p.2:6.) The opposition also requests pursuant to California Code of Civil Procedure §128.5 sanctions against defendant Cole in the amount of $2,890.00 for filing this frivolous motion.

Discussion

At the outset, the Court finds that the proof of service defendant Cole filed with his moving papers on 1/30/2025 attests to service on only defendants McCracken and Shirley (via their attorneys) and makes no mention of service of the moving papers on plaintiff McKague Law Group or defendant Department of Child Support Services, despite the fact each of these parties filed an appearance in this action prior to the present motion’s filing on 1/30/2025. According to Code of Civil Procedure §1014, each and every party who makes an appearance in this action is entitled to notice of all

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 06/17/2025 Hearing on Motion - Other to Stay Discovery in Department 53

subsequent court filings and proceedings regardless of whether they seek any relief against that particular party. Since the Court currently finds on file no proof of service of the moving papers on plaintiff McKague Law Group and/or defendant Department of Child Support Services and since CRC Rule 3.1300(c) requires that proof of service be filed at least five court days prior to the scheduled hearing date, the present motion is DROPPED from calendar due to defective service of notice which deprives the Court of jurisdiction to consider this matter. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509-511.)

In light of the foregoing, the Court need not proceed further but it nevertheless does so in order to demonstrate reasons why defendant Cole, even if he had properly served this motion on all parties as required by to Code of Civil Procedure §1014, would not be entitled to an order “to stay discovery” as sought by the moving papers filed on 1/30/2025.

Code of Civil Procedure §2030.090(b), the statute on which this motion is expressly premised, does not provide for a “stay” of discovery. Instead, by its own terms, §2030.090(b) merely authorizes this Court to issue an order “to protect any party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense” associated with a set of interrogatories or particular individual interrogatories. Critically, §2030.090(a) further provides that any motion for protective order relating to interrogatories “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Underline added for emphasis.)

However, in this case, defendant Cole did not file with his moving papers any declaration whatsoever, much less one which complies with the express requirements of §2016.040 and thus, on this ground the Court would deny the present motion due to defendant Cole’s failure to comply with §2030.090(a)’s meet-and-confer requirements.

Additionally, as noted above, the first of the four grounds cited as support for this motion is that “Defendant [Cole] has filed a request for entry of default, which remains pending.” (Mov Papers, p.1:21-22.) This ground, however, does not warrant the requested stay since (1) the Court’s file does not reflect any request for entry of default having been filed by defendant and more importantly, (2) defendant Cole has filed no complaint, cross-complaint or other pleading on which he may seek the default of any other party to this action, much less defendants McCracken and Shirley. Therefore, whether defendant Cole may have submitted a request for default and whether such request may remain “pending” is of no legal consequence and in no way justifies the requested stay on discovery.

The next two grounds cited as support for this motion is that the answer and crosscomplaint of defendants McCracken and Shirley have not been properly served on Defendant Cole” (Mov Papers, p.1:22-23) but neither of these grounds is sufficient to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 06/17/2025 Hearing on Motion - Other to Stay Discovery in Department 53

warrant an order staying discovery. As noted above, defendant Cole did not file with his moving papers any declaration whatsoever and thus, the Court has no proper evidentiary basis on which to conclude defendants McCracken and Shirley’s answer to complaint and/or cross-complaint was not properly served on defendant Cole but even if there were evidence to substantiate these claims, the Court is not persuaded these justify the requested stay of discovery propounded by defendants McCracken and Shirley.

The remaining ground for this motion is that “proceeding with discovery at this stage would be procedurally improper and unduly prejudicial to Defendant [Cole]” (Mov Papers, p.1:13-25) but this too falls short. The moving papers have failed to persuade this Court that permitting defendants McCracken and Shirley to proceed with their discovery would be “procedurally improper” and defendant Cole, by failing to file any declaration in support of this motion, has not presented any evidence which tends to show that defendants McCracken and Shirley’s discovery requests would cause any undue prejudice that might justify a stay of discovery.

Finally, while defendants McCracken and Shirley’s discovery includes not only interrogatories but also requests for production and requests for admissions, defendant Cole’s moving papers did not seek relief pursuant to Code of Civil Procedure §2031.060(b) or §2033.080(b) so as to address the pending requests for production and requests for admissions, respectively. These two provisions parallel §2030.090(b) in that they authorize similar relief in the form of a protective order in connection with requests for production and requests for admissions, respectively.

However, despite the fact defendants McCracken and Shirley also propounded requests for production and requests for admissions, defendant Cole did not seek any relief specifically related to such requests and thus, the Court has no proper basis on which to issue a stay relating to these requests for production and requests for admissions. But even if defendant Cole had requested such relief, it would be denied because he likewise failed to file in support of this motion a meet-and-confer declaration as expressly required by Code of Civil Procedure §2031.060(a) and §2033.080(a).

Disposition

For the reasons explained above, defendant in pro per Cole’s motion for order “staying all discovery requests” propounded by defendants McCracken and Shirley pursuant to Code of Civil Procedure §2030.090(b) is DROPPED from calendar.

Defendants McCracken and Shirley’s own request for monetary sanctions pursuant to Code of Civil Procedure §128.5 is DENIED since §128.5(f)(1)(A) specifies that “[a] motion for sanctions under this section shall be made separately from other motions,” while §128.5(f)(1)(D) adds that the moving papers shall not be filed with the Court less

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 06/17/2025 Hearing on Motion - Other to Stay Discovery in Department 53

than 21 days after the motion’s service, effectively providing the opposing party/counsel with a 21-day “safe harbor” within which to withdraw a challenged “action or tactic.”

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)