Judge Audra Mori, Case 20STCV41192 2023-02-16 Tentative Ruling

Plaintiff Kristen Osegueda (“Plaintiff”) filed this action against defendants Ontrac, California Overnight, Inc., Express Messenger Systems, Inc., and Felix Ortega Dominguez (“Dominguez”) for damages arising from a motor vehicle accident vs bicycle accident. Plaintiff has filed an amendment to complaint naming Zion Delivery Service, Inc. (“Zion”) as Doe 1.

As relevant to this proceeding, on May 5, 2022, defense counsel, Robert T. Mackey (“Mackey”), filed an answer to Plaintiff’s complaint on behalf of Dominguez. At this time, Mackey moves for an order to withdraw defense counsel’s appearance and answer filed for Dominguez. The moving papers have been personally served on Dominguez. (Proof of Service, filed Jan. 25, 2023.) Plaintiff opposes the motion. Any reply was due on or before February 8, 2023. As of February 10, 2023, no reply has been received.

Mackey provides that the answer was mistakenly filed on behalf of Dominguez because he was listed on Zion’s insurance policy as an additional insured, and Mackey wrongly assumed someone from his firm had been in contact with Dominguez regarding representing and filing an answer for him. Mackey contends that there will be no prejudice to Dominguez from granting this motion as Mackey never had any agreement with Dominguez to represent him, and defense counsel has not represented Dominguez in this action aside from mistakenly filing the answer. Additionally, Mackey asserts that because trial is set for August 23, 2023, Dominguez will have ample time to retain counsel and prepare for trial.

In opposition, Plaintiff contends that it is unclear whether Dominguez has been given proper notice of Mackey’s motion or whether Mackey has made contact with Dominguez. Plaintiff further argues that Mackey’s motion is an improper motion to withdraw from representation, and that defense counsel can still contact Dominguez at any time. Plaintiff argues that Mackey has prejudiced Dominguez and cannot now abandon him because Plaintiff has served discovery requests on Dominguez through defense counsel and faces discovery sanctions.

CCP § 128(a)(8) provides that the court has the power “[t]o amend and control its process and orders so as to make them conform to law and justice.” Furthermore, the court at any time can “[s]trike out any irrelevant, false, or improper matter inserted in any pleading,” or “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state.” (CCP § 436(a), (b); accord. CCP § 473(a)(1) [“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.”).]

Here, Mackey states that he believed his firm had established contact with Dominguez prior to the answer being filed for Dominguez, but Mackey recently learned that defense counsel did not contact Dominguez. (Mot. Mackey Decl. ¶ 8.) Further, Mackey asserts that contrary to insurance information in defense counsel’s possession, Mackey learned that Dominguez was not working for Zion at the time of the incident. (Id. at ¶ 9.) Mackey attests that defense counsel has not made any contact with Dominguez, that there was never any agreement to represent him, and that defense counsel has not represented Dominguez in this matter aside from filing the answer. (Id. at ¶ 10.) In addition, Mackey contends that Dominguez’s interests could be adverse to Zion’s, for which Mackey is counsel of record in this action. (Id. at ¶ 14.)

The evidence shows that Mackey and his firm mistakenly and improperly filed the answer on behalf of Dominguez without his permission or even his knowledge. There is no evidence that an attorney-client relationship was ever established between Dominguez and Mackey or his law firm, and thus there is no such relationship from which to withdraw. Plaintiff does not dispute that neither Mackey nor his firm have done anything in this action to represent Dominguez other than mistakenly filing the answer. As Mackey and his firm were not authorized to file the answer on Dominguez’s behalf, it should be stricken to conform to reality and to correct counsel’s mistake. (CCP § 436(a), (b); accord. CCP § 473(a)(1).)

To the extent that Plaintiff contends that it is unclear whether Dominguez has been given notice of this motion, Mackey filed proof of service showing personal service of the documents at Dominguez’s address on January 23, 2023. (Proof of Service, filed Jan. 25, 2023.) Plaintiff seems to argue that service pursuant to CCP § 1011(b) is inappropriate because Dominguez is not a party to the lawsuit, but Plaintiff has indisputably named Dominguez as a defendant in this action, which makes him a party, and Plaintiff has filed a proof of service of summons on Dominguez. Plaintiff’s implication that Dominguez is only a party to the action only because or if he answered lacks authority or merit.

The motion is granted as follows: the answer filed on behalf of Dominguez by Mackey and Veatch Carlos, LLP without authority on May 5, 2022, is ordered stricken. Mackey is ordered to serve notice of this order on Dominguez, along with courtesy copies of the summons and complaint, within 10 (ten) days. Dominguez thereafter has 30 days to file a responsive pleading. As to the discovery requests Plaintiff served on defense counsel, Plaintiff is should re-serve the discovery on Dominguez, as counsel did not have authority to represent Dominguez or accept the discovery on Dominguez’s behalf. Mackey and Veatch Carlos, LLP are to pay the costs for Plaintiff re-serving the discovery. (CCP § 473(a)(2).) The costs are to be paid within twenty (20) days of Plaintiff’s counsel providing proof of the costs to defense counsel.

Hon. Audra Mori

Judge of the Superior Court