Judge: Deborah C. Servino, Case: 30-2018-00993688, Date: 2022-10-28 Tentative Ruling
The motions of Callahan & Blaine, APLC to be relieved as counsel of record for Courtney S. Scott; Courtney S. Scott, M.D., Inc.; Cranford L. Scott; Cranford L. Scott, MD, Inc.; Equaltox, LLC ESA Equaltox, Inc., APC; Smensa Medical Group, P.C.; and Sulaiman Masood, are denied.
Pursuant to California Rules of Court, rule 3.1362(d), notice of motion and motion, the declaration, and proposed order must be served on the client. The notice may be by personal service, electronic service, or mail. A well-regarded practice guide provides in relevant part the following:
CAUTION: CRC 3.1362 contains a number of technical requirements for a motion to be relieved as counsel that are frequently overlooked, resulting in these motions having to be continued for compliance. Counsel should carefully read the rule and comply with each of its requirements when preparing the motion.
(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9:385.1.)
Here, Callahan & Blaine, APLC served each of their clients of the documents by mail, email, and personally. As discussed below, however, each service was deficient.
Rule 3.1362(d)(1) provides that if the notice is served on the client by mail, it must be accompanied by a “declaration stating facts showing that either: (A) The service address is the current residence or business address of the client; or (B) The service address is the last known residence or business address of the client and the attorney had been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.” Rule 3.1362 (d) expressly provides: “As used in this rule, ‘current’ means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client’s last known address and was not returned or no electronic delivery failure message was received is not by itself, sufficient to demonstrate that the address is current. . . .” (Cal. Rules of Court, rule 3.1362(d).) Except for Smensa Medical Group, P.C., each declaration in support of the motions to be relieved as counsel, counsel indicated that the client’s address was confirmed to be current “by other means”, specifically “Counsel has mail served clients with this motion for relief and served the instant motion papers via email to currently operative email accounts.” (ROA 1122, 1124, 1126, 1130, 1132, 1134.) Accordingly, notice by mail was deficient for Courtney S. Scott; Courtney S. Scott, M.D., Inc.; Cranford L. Scott; Cranford L. Scott, MD, Inc.; Equaltox, LLC ESA Equaltox, Inc., APC; and Sulaiman Masood. As for Smensa Medical Group, P.C., the declaration indicated that Smensa Medical Group’s address was confirmed to be current by mail with return receipt requested. However, the date for the hearing on the motion in the documents served upon Smensa was for February 24, 2023, not for the instant hearing after the ex parte application was granted. (ROA 1128.)
Rule 3.1362(d)(2) provides: “If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client’s current electronic service address.” Merely demonstrating that no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. (Cal. Rules of Court, rule 3.1362(d).) Except for Smensa Medical Group, P.C., each declaration in support of the motions to be relieved as counsel, counsel indicated that the client’s address was confirmed to be current “by other means”, specifically “Counsel has mail served clients with this motion for relief and served the instant motion papers via email to currently operative email accounts.” (ROA 1122, 1124, 1126, 1130, 1132, 1134.) Accordingly, notice by electronic service was deficient for Courtney S. Scott; Courtney S. Scott, M.D., Inc.; Cranford L. Scott; Cranford L. Scott, MD, Inc.; Equaltox, LLC ESA Equaltox, Inc., APC; and Sulaiman Masood.
Personal Service
Except for Cranford L. Scott, M.D., Inc., proofs of personal service on all of the clients were filed. However, it does not appear that the notice of ruling on the ex parte application to shorten time, notice of motion and motion to be relieved, and declaration in support of motion were personally served in compliance with Code of Civil Procedure section 1011, subdivision (b). The proposed orders were not on the list of documents served. (See ROA 1184, 1186, 1188, 1190, 1192, 1194, 1198.) A proposed order must be served. (Cal. Rules of Court, rule 3.1362(d).) Furthermore, the proof of service for Smensa Medical Group indicates that service was performed at 233 N. Prairie Ave., Inglewood, CA 90301. (ROA no. 1186.) That address does not match the address provided as the current address for Smensa Medical Group on the proposed order. (Compare Proposed Order [ROA 1149].)
Accordingly, none of the parties to the motions were properly served with notice of the motion being heard on October 28, 2022. None of Callahan & Blaine, APLC’s clients filed an opposition to the motions. It is unclear to what extent the failure to file an opposition was due to inadequate notice. Because trial is one month away, the court must insist on strict compliance with notice before relieving counsel. Continuing the motions for counsel to cure the deficiencies in service would pose an obvious risk of prejudice to the clients. (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 5; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9:385.2.) The motions are denied.
Callahan & Blaine, APLC shall give notice of the rulings to its clients and all parties.