Judge: Christian R. Gullon, Case: 19STCV18394, Date: 2023-10-04 Tentative Ruling

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Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

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Case Number: 19STCV18394    Hearing Date: October 4, 2023    Dept: O

Tentative Ruling

James R. Galliver, Esq.’s Motion to Be Relieved as Counsel for Plaintiff Darlene Escobedo is GRANTED, effective upon [see below].

Background

This case arises from alleged food poisoning. Plaintiffs LINDA R. MARTINEZ (et al)[1] allege the following against Defendant WINCO FOODS, LLC: On September 9, 2018, Plaintiffs attended an event and ate various foods, a couple of which were supplied by Defendant. The following day, each Plaintiff who consumed “some or all” of the food supplied by Defendant became sick.

On May 28, 2019, Plaintiffs filed against Defendant for:

On November 19, 2019, Defendant filed its answer.

On January 26, 2021, Defendant filed a substitution of attorney, replacing James W. Pincin with Kelly J. Snowden of Reese, Smalley, Wiseman & Schweitzer.

On September 16, 2022, a joint stipulation to continue trial was filed.

On January 11, 2023, January 12, 2023, January 13, 2023, January 26, 2023, twelve Offers to Compromise and Acceptance (CCP 998) were filed wherein some of the Plaintiffs accepted Defendant’s offer to pay the subject Plaintiffs $1,000 each in exchange for Plaintiff filing a request for dismissal of Defendant with prejudice.

On March 23, 2023, the Plaintiffs who were a part of the 998 offers filed dismissals against Defendant.

On April 4, 2023, James R. Galliver, Counsel for Plaintiff Darlene Escobedo (“Client”), filed a motion to be relieved as counsel due to his inability to contact plaintiff despite multiple attempts. More specifically, Counsel’s declaration (MC-052) explains that he has been unable to contact the Client for more than 6 months. Counsel attempted to contact Client 19 times via separate emails, 4 phone calls with voice messages, and a letter to Client’s last known address requesting Client to respond or that Counsel would need to withdraw from representation, along with a substitution of attorney form. According to the form, Counsel mailed the motion papers to Client’s last known address (return receipt requested), called the client’s last telephone number, contacted other plaintiffs concerning Client’s whereabouts and contact information, and mailed a letter to the client on 3/27/23 and emailed client.

On April 6, 2023, the court denied the ex-parte application to shorten the time for the hearing on the above motion to be relieved as counsel, and noted in its ruling that it is unclear whether the client was properly served with both the ex-parte application and notice of the motion to be relieved as counsel.

On April 17, 2023, the court granted the stipulation to continue to continue trial.

On April 21, 2023, Paro Astourian filed a motion to be relieved as counsel of Plaintiff Mary Martinez due to similar inabilities to reach the client, but Plaintiff’s counsel took the motion off calendar on 5/25/2023.

On June 8, 2023, the court stated, in relevant part, the following in its minute order (adopting the tentative ruling) regarding the motion to be relieved as counsel for Darlene Escobado:

Counsel has filed proof of service on Plaintiff at the last known address . . . The Court wishes to hear from Counsel concerning Counsel’s attempts in confirming the Plaintiff’s address. Assuming the Court is satisfied with Counsel’s attempts in confirming the client’s address, the motion will be granted; the ruling is effective upon filing proof of service of the final order. The Court notes the next scheduled matter is a Final Status Conference set for September 21, 2023, and trial is scheduled for October 5, 2023. Therefore, there is sufficient time for Plaintiff to seek other counsel or otherwise prepare prior for trial. The Court is not satisfied with Counsel's attempts in confirming the client's address. Counsel must serve the moving papers on the Clerk of the Court at the Stanley Mosk Courthouse. Counsel is to submit the proof of service by June 26th. Pursuant to the request of moving party, the Hearing on Motion to be Relieved as Counsel scheduled for 06/08/2023 is continued to 06/30/2023 at 01:30 PM in Department 31 at Spring Street Courthouse. (emphasis added).

On June 26, 2023, Counsel Galliver filed a ‘Supplemental Declaration Of Declaration Of James R. Galliver, Esq. In Support Of Motion To Be Relieved As Counsel For Plaintiff Darlene Escobedo.’

On June 28, 2023, the case was reassigned to the instant department.

On July 3, 2023, the court filed a ‘returned mail as to James W. Pincin, attorney formerly represented defendant.’

On August 18, 2023, Plaintiff’s Counsel filed a Notice Of Hearing On Motion To Be Relieved As Counsel For Plaintiff Darlene Escobedo.

On September 27, 2023, Plaintiff’s Counsel filed a ‘Reply To Non-Opposition Of Darlene Escobedo To Motion To Be Relieved As Counsel,’ indicating no opposition to his motion has been received by the client.

The FSC is scheduled for 4/30/2024 and jury trial is scheduled for 5/07/2024.

Discussion

Based upon the supplemental declaration filed by Counsel Galliver, per the court’s request during the 6/8/23 hearing, he delivered the moving papers to the Clerk of the Court pursuant to Code of Civil Procedure §1011(b) and California Rules of Court Rule 3.1362(d). As the Proof of Service indicates that service was made upon the court clerk on June 13, 2023 (Supp. Decl., Ex. 2), the court finds that Counsel has cured the defect noted by the court during the 6/8/23 hearing.

With that, as (i) all required forms have been submitted, (ii) as notice has been provided to the Client and Defendant, (iii) as Counsel cannot effectively represent the Client without communicating with Client, (iv) as Counsel cannot prepare for trial without communicating with Client, (v) as Counsel relay settlement offers without communicating with Client, (vi) as there are no matters on calendar requiring Client’s participation, (vii) Client has not filed an opposition stating prejudice from granting the motion, and (viii) Counsel has taken numerous measures to contact Client, the court finds good cause to grant the motion.

Conclusion

Based on the foregoing, Counsel’s Motion to Be Relieved as Counsel for Darlene Escobedo is GRANTED, effective upon the filing of proof of service of this court’s order relieving Counsel, sent to Plaintiffs, Defendant, and all other parties who have appeared in the case.