Judge: Elaine Lu, Case: 20STCV31931, Date: 2023-01-04 Tentative Ruling

Case Number: 20STCV31931    Hearing Date: January 4, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

On April 27, 2021, the pursuant to the parties’ stipulation the instant action was stayed in part pending arbitration pursuant to a binding arbitration agreement as to the litigation between Plaintiff Ryan Kelm (“Client”) and Defendants Hinoki and the Bird, Culinary Lab Partners, and Walter Schild.  (Minute Order 4/27/21.)  On September 27, 2021, the remaining unstayed claims against Defendant Gabriel Enciso were dismissed without prejudice. 

On May 3, 2022, Plaintiff’s counsel Ivie McNeill Wyatt Purcell & Diggs, including Rodney S. Diggs, Esq. and Tyrine S. Ama (collectively “Counsel”) moved to be to be relieved as counsel of record for Client.  On June 22, 2022, the Court denied the motion on the grounds that Counsel failed to file the required mandatory forms to be dismissed – i.e., MC-051, MC-052, and MC-053, (See Cal. Rules of Court, Rules 3.1362(a),(c), (e)) – despite being previously notified of this mandatory requirement.  (Minute Order 6/22/22.)  Counsel was also notified that the accompanying memorandum was unnecessary.  (Minute Order 6/22/22; Cal. Rules of Court, Rule 3.1362(b), [“Notwithstanding any other rule of court, no memorandum is required to be filed or served with a motion to be relieved as counsel.”].) 

On August 25, 2022, Counsel filed a motion to be relieved as counsel and filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 pursuant to California Rules of Court Rule 3.1362.  However, the motion was noticed for the next day – August 26, 2022 – instead of the required 16 court days.  (CCP § 1005(b).)  Accordingly, on August 26, 2022, the Court denied the instant motion for insufficient of notice.  (Minute Order 8/26/22.)  The Court also noted that “the arbitrator has already relieved Plaintiff's Counsel. The Court is of the view that it does not currently have jurisdiction to rule on any further motion to be relieved by Plaintiff's Counsel. If Plaintiff's Counsel disagrees, Plaintiff's Counsel must brief this jurisdictional issue in any renewed motion to be relieved prior to the conclusion of the arbitration.”  (Minute Order 8/26/22.)

On September 29, 2022, the Court noted that Counsel “may be filing a noticed motion to be relieved and a concurrent motion to lift the stay to allow Plaintiff's Counsel's motion to be relieved to be heard.”  (Minute Order 9/29/22.)

On November 30, 2022, Client filed the instant motion to be relieved as counsel and filed the motion to lift the stay.  The motion to lift the arbitration stay is advanced from August 28, 2023 to today and GRANTED.  The stay pursuant to Code of Civil Procedure section 1281.4 as to Counsel’s motion to be relieved.

Code of Civil Procedure section 1281.4 “grants a trial court discretion to lift a stay prior to the completion of arbitration only under circumstances in which lifting the stay would not frustrate the arbitrator's jurisdiction.”  (MKJA, Inc. v. 123 Fit Franchising, LLC (2011) 191 Cal.App.4th 643, 660.)  Here, as the arbitrator has already granted Counsel’s motion to be relieved on April 18, 2022, (Aman Decl. ¶ 18, Exh. A), lifting the stay as to the instant motion to be relieved would not frustrate the arbitrator’s jurisdiction.

As to the motion to be relieved, Counsel has again failed to file the required and mandatory forms MC-051, MC-052, and MC-053. (See Cal. Rules of Court, Rules 3.1362(a),(c), (e).)  Further, Counsel has not confirmed that Client’s last known mailing address is current within 30 days of the motion.  The last attempt by Counsel to contact Plaintiff was on January 14, 2022 to which no response was received.  (Aman Decl. ¶¶ 8-9.)  In fact, as conceded by Counsel, Counsel has not even attempted to confirm the address as required.  (Aman Decl. ¶ 15, [“Our office has not attempted to locate Plaintiff and has not used time and resources to locate Plaintiff …”].) 

California Rules of Court Rule 3.1362 requires that Counsel confirm Client’s address “within 30 days before the filing of the motion to be relieved.”  Rule 3.1362 further provides that “[m]erely 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.”  (Id. at (d)(2).) 

Further, Counsel does not assert that they have confirmed that the address is current by the traditional means of “mail, return receipt requested,” “telephone,” or “conversation”.  Accordingly, Counsel has failed to demonstrate that the address listed on the proof of service filing is indeed current as of 30 days prior to the filing of Counsel’s motion to be relieved.

Rule 3.1362’s requirement that Client’s address be confirmed as current within 30 days of Counsel’s motion to be relieved is not a mere technicality without a purpose.  If the Court grants Counsel’s motion to be relieved without requiring a current, working address for Client, neither the Court nor the other parties will have the ability to serve Client with pleadings, motions, and orders, which implicates due process concerns.

Accordingly, the instant motion to be relieved as counsel is DENIED WITHOUT PREJUDICE as Counsel has failed to follow multiple mandatory requirements to be relieved as Counsel. 

The stay on the entirety of the action is reimposed.

Moving Counsel is to give notice to all parties, including Client, and file proof of service of such within 10 days.

DATED: January 4, 2023                                                       ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court