XS Network v. Smith
Filed 6/20/06 XS Network v. Smith CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| XS NETWORK, INC., Plaintiff and Appellant, v. ROBERT SMITH et al., Defendants and Respondents. | G034945 (Super. Ct. No. 03CC09358) O P I N I O N |
Appeal from orders of the Superior Court of Orange County, William M. Monroe, Judge. Affirmed in part and affirmed in part as modified. Request for judicial notice granted. Motion to strike denied.
Everett L. Skillman for Plaintiff and Appellant.
Grace & Grace, Michael K. Grace and Pamela D. Deitchle for Defendants and Respondents Robert Smith, Digital Enterprises, LLC, Sergio Duarte and SystemCentrix.
Corporate Counsel Partners and John Selbak for Defendants and Respondents Sergio Duarte and SystemCentrix.
The plaintiff corporation in a trade secrets case failed to conduct discovery prior to the trial date and blocked the defendants' discovery efforts. The plaintiff corporation's exasperated attorney filed a motion to be relieved as counsel. The court granted the motion on the scheduled trial date and continued the trial date. It subsequently ordered the parties to agree to discovery dates and then set the agreed upon dates by minute order. When the plaintiff corporation and its president thereafter failed to comply with the discovery schedule, the defendants filed motions for orders compelling discovery, and for monetary and terminating sanctions. The plaintiff corporation filed no opposition, although its fourth attorney on the case appeared at the hearing on the motions. The court awarded the requested monetary and terminating sanctions and the plaintiff corporation appeals.
The plaintiff corporation, having failed at the trial level to make any objections to the statutory basis for the terminating sanctions, has waived any objections it may have had with respect to that issue. Furthermore, we reject its arguments concerning due process, the doctrine of relation back and the doctrine of necessity. We affirm the dismissal of the complaint as against defendants Robert Smith, Digital Enterprises, LLC, SystemCentrix and Sergio Duarte, and order the trial court to modify its order to clarify that the dismissal pertains to these defendants. We also affirm the award of monetary sanctions against the plaintiff corporation. The award of monetary sanctions against the president of the plaintiff corporation is not at issue on this appeal, so we do not address it. We grant the plaintiff corporation's request for judicial notice, but deny its motion to strike.
I
FACTS
On July 22, 2003, XS Network, Inc. filed a complaint against Robert Smith (Smith), Digital Enterprises, LLC (Digital), Robert Prestwood (Prestwood), SystemCentrix, and Sergio Duarte (Duarte), asserting causes of action for injunctive relief, declaratory relief, breach of contract, breach of fiduciary duty, violation of the Uniform Trade Secrets Act, Civil Code section 3426 et seq., common law misappropriation and conversion. The complaint was filed by the law firm of Grant, Genovese & Baratta.
On December 11, 2003, Attorney Steven R. Young substituted in as counsel of record for XS Network, Inc. That same date, the court set the matter for trial on July 26, 2004.
On April 15, 2004, XS Network, Inc., by its president Connie Jordan (Jordan), attempted to file a substitution of attorney substituting itself as its own legal representative in place of Attorney Young. However, the court clerk rejected the document for filing, stating that a corporation may not represent itself.
On May 27, 2004, Attorney Young filed a motion to be relieved as counsel.[1] In his supporting declaration he stated, inter alia: â€
