Legal Question in Family Law in California
My wife filed for divorce and spousal support community property issues have been resolved by the Judge. No dependents. Second marriage of each of us. My wife retained an attorney (Attorney#1) to whom all Discovery docs were sent to. Wife then terminated relationship with Attorney#1 and retained a second and now her current attorney. Attorney#2 served my attorney with another Set One Interrogatories (which now presents 116 questions...yes 116 items) and they were slipped under his door by a licensed server during business hours. In addition, my attorney sent opposing Attorney #2 a "Notice of Non-Availabillity" for one week (vacation), during which time the documents were slipped under a locked and vacant office.
Since my attorney won't talk to me, I'm very confused. Would this manner of document delivery be deemed as "Improper Service" in meeting the legal standards of Personal or Substitute service, or did the licensed server know what he was doing. There was no line item stating Personal or Substitue, nor check boxes on the Confirmation of Service paper. Can two "Set One" forms be accepted by the court, and if service was improper, do I have to address these 116 questions within the 30 day statute? My attorney says "just do it".....
1 Answer from Attorneys
Your attorney doesn't know what he/she is doing. You have a "copycat" attorney who does things a certain way, just because he or she has seen other attorneys do it, without a deeper understanding of whether it is even legal or permissible. Courts don't recognize a "Notice of Unavailability of Counsel" and most of the time they are used for improper game playing.
"It has apparently become common practice in the trial courts for litigants to file a 'notice of unavailability' under the guise of Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299. The notice purports to advise the other parties to the action�as well as the court�that the deliverer will not be available for a prescribed period of time and that no action may be taken during that period which adversely affects the unavailable party. To the extent this practice attempts to put control of the court's calendar in the hands of counsel� as opposed to the judiciary�it is an impermissible infringement of the court's inherent powers." (Carl v. Superior Court (4th Dist. 2007) 157 Cal.App.4th 73.)
The legitimate inquiry should be whether or not the interrogatories are form interrogatories or special interrogatories. If they are form, then any number can be served. If they are special interrogatories, and you answered them before, then the issue is whether or not a declaration for additional discovery was attached, justifiying propounding interrogatories in excess of the limit of 35, as set forth in Code of Civil Procedure section 2030.050.
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