Judge: Bruce G. Iwasaki, Case: 22STCV01789, Date: 2023-03-24 Tentative Ruling
Case Number: 22STCV01789 Hearing Date: March 24, 2023 Dept: 58
Judge Bruce Iwasaki
Hearing Date: March 24,
2023
Case Name: Caetano,
Tapiz v. Garrido, Garrido, Mendoza
Case No.: 22STCV01789
Motion: Order to Show Cause re Defendants’ Counsel
Moving
Party: Plaintiffs Caetano and Tapiz
Tentative
Ruling: Plaintiffs’ Order to Show Cause to Give Defendants Written Notice
to Appoint Another Attorney or Appear is granted.
Background
On January
18, 2022, Plaintiffs Karime Caetano and Javier Caetano sued Defendants Edgar
Garrido, Mario Garrido, and Manuel Mendoza for 1) Negligence; 2) Breach of
Implied Warranty of Habitability; 3) Breach of Los Angeles County Code 8.52.130;
and 4) Breach of Business and Professions Code section 17200.
On
September 27, 2022, Defendants answered. Defendants/Cross-Complainants also
filed a cross-complaint for 1) Breach of Contract; 2) Common Counts; and 3)
COVID-19 Rental Debt. On October 7, 2022, Plaintiffs/Cross-Defendants answered.
On October
9, 2022, according to the State Bar website, counsel for Defendants, Andrew P. Altholz,
became ineligible to practice law in California.
On November
7, 2022, at the case management conference, Kenneth Ray Gaugh appeared for
Defendants. The court ordered counsel for the defendants to file a substitution
for attorney by November 28, 2022. As of this tentative ruling, he has not done
so.
On January
31, 2023, Plaintiffs moved the court to set an order to show cause regarding whether
Defendants have retained licensed counsel and/or to relieve Andrew P. Altholz
as Defendants’ counsel. Plaintiffs also moved the court to direct Plaintiffs’
counsel to give notice to Defendants per California Code of Civil Procedure
section 286. In the alternative, Plaintiffs asked the court to set an order to
show cause why it should not strike Defendants’ pleadings.
Discussion
Courts have inherent power, as well
as power under section 187 of the Code of Civil Procedure, to adopt any
suitable method of practice if the procedure is not specified by statute or by
rules adopted by the Judicial Council. (Tide
Water Associated Oil Co. v. Super. Ct. of L.A. Cnty. (1955) 43 Cal.2d
815, 825.)
When an attorney dies, or is removed
or suspended, or ceases to act as an attorney, before any further proceedings
move forward against the party the attorney was representing, the adverse
party, by written notice, must require the party the attorney was representing to
appoint another attorney or appear in person. (Code Civ. Proc. § 286.) The
statute applies only when the attorney has died or ceased to be an attorney. (Cal. Water Service Co. v.
Edward Sidebotham & Son, Inc. (1964) 224 Cal.App.2d 715; Gion v. Stroud (1961) 191 Cal.App.2d 277.)
The statutory phrase "ceases to act as such" applies only to an
attorney whose professional activities are generally discontinued and not to
one who merely ceases to act for a particular party. (Id.) It also does
not apply to one who is only temporarily incapacitated. (Reed v. Garfinkle
(1952) 111 Cal.App.2d 943.)
The purpose of section 286 is to provide notice to a party who might
otherwise be taken unaware. (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 742.) The term “proceedings”
refers to something done or to be done in a court of justice or before a
judicial officer. (Id.)
Because Andrew P. Altholz has become
ineligible to practice law in the state of California, his professional
activities are generally discontinued. At the hearing, the Court will set a
date by which Defendants must appear by and through a new attorney, or appear
in person. The Court will also set a
status conference for that date.