Opinion
2:22-cv-00348-KJM-JDP
10-03-2024
Johnny Kan, Plaintiff, v. Verdera Community Association, et al., Defendants.
ORDER
This court previously relieved Marc Applbaum as counsel for plaintiff Johnny Kan, suspended Applbaum from the bar of this court, and referred him to the California State Bar for consideration of whether he violated California's Rules of Professional Conduct. See Order (Oct. 12, 2023), ECF No. 83. Applbaum had, among other things, publicly divulged confidential communications between himself and Kan.in an effort to illustrate the “irreconcilable differences” that had developed between them. See id. at 8-9. Kan.did not retain substitute counsel after Applbaum was relieved, so the matter was referred to the assigned Magistrate Judge under this district's local rules. See Order (Dec. 1, 2023), ECF No. 90; E.D. Cal. L.R. 302(c)(21).
Two defendants, Shamus McClure and the Verdera Community Association, filed a motion for summary judgment in November 2023-after this court issued its order relieving Applbaum as counsel but before it became clear Kan.would not obtain substitute counsel. See Mot., ECF No. 88. Their motion is based on a set of requests for admissions they emailed to Applbaum in July 2023. See Mem. at 5-6, ECF No. 88-1; see also Rolfe Decl. ¶¶ 3-5 & Exs. A-B, ECF No. 88-2. This was during the time Applbaum was claiming he and Kan.were not communicating effectively. See Mem. at 5-6, ECF No. 88-1. Kan.describes the relationship in even darker terms. He claims Applbaum “had been misappropriating and absconded with” his assets. See Opp'n at 1, ECF No. 97. McClure and Verdera never received a response to the requests for admissions they emailed to Applbaum, and for that reason, they argue Kan.has admitted what they requested under Federal Rule of Civil Procedure 36(a)(3). See Mem. at 5.
The Magistrate Judge recommends denying the motion for summary judgment. See F&Rs, ECF No. 102. McClure and Verdera offer no evidence to show they obtained Kan's or Applbaum's written consent to receive documents by email, as required by Rule 5(b)(2)(E), so neither Applbaum nor Kan.actually received formal service of the requests for admissions. See F&Rs at 6, ECF No. 102. McClure and Verdera object to that recommendation, but they “do not dispute they did not obtain a writing that explicitly confirms electronic service.” Objections at 3, ECF No. 103.
The Magistrate Judge's findings and recommendations are both correct and just. The court adopts them in full. McClure and Verdera cannot selectively rely on the rules that serve their purposes while disregarding others that do not. That is especially true in circumstances such as these. It is unclear whether Kan-or even Applbaum-was aware of the disputed requests for admission. McClure and Verdera cite an email to prove Applbaum acknowledged receipt, but the email was not from Applbaum. It was from his paralegal. See Edgemont Email (July 24, 2023), ECF No. 103-1. Nor does the email mention any requests for admissions. See id.
In the alternative, McClure and Verdera request permission to serve their requests for admissions again on Kan.directly, this time by mail. See Objections at 3-4. They may raise that request with the assigned Magistrate Judge.
1. The findings and recommendations (ECF No. 102) are adopted in full.
2. The motion for summary judgment (ECF No. 88) is denied.
3. This matter is referred back to the assigned Magistrate Judge for further pretrial matters.
IT IS SO ORDERED.