Judge: Elaine Lu, Case: 21STCV09634, Date: 2023-05-22 Tentative Ruling





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Case Number: 21STCV09634    Hearing Date: May 22, 2023    Dept: 26

 

 

 

Superior Court of California

County of Los Angeles

Department 26

 

HIN KU,

                        Plaintiff,

            v.

 

zhenya he; ying chen; le sky group, llc; et al.,

                        Defendants.

 

  Case No.:  21STCV09634

 

  Hearing Date:  May 22, 2023

 

[TENTATIVE] order RE:

motion to be relieved as counsel

 

 

Defense counsel, Doron F. Eghbali, Esq. (“Counsel”), moves to be relieved as counsel for Defendant Ying Chen (“Client”). On March 21, 2023, Counsel filed the instant motion to be relieved as counsel.

Counsel has filed a form MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 pursuant to CRC Rule 3.1362.  

The MC-052 form states that Counsel served Client via mail at Client’s last known mailing address, which Counsel states he has confirmed as current within 30 days of the motion by a government-issued driver’s license.

Counsel states that “[a]t this time, it would be in the interest of justice and of the [Client] if counsel of record was relieved from representing [Client] due to irreconcilable differences between client and attorney.”

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 if notice is served 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 has 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.”  (Id. at (d).)

Merely stating that an address matches a government-issued driver’s license is woefully insufficient to establish that the client’s address is current.  There is no evidence of the date on which the government issued the driver’s license at issue.  Thus, there is no evidence that the government-issued driver’s license is current as of 30 days of Counsel’s filing of the instant motion.  Moreover, the most recent status report that Plaintiff has filed indicates that it is very likely that Client no longer resides at the address on the government-issued driver’s license.  As the status report notes, Client has been indicted in federal court for fraud in connection with unlawfully obtained PPE funds.  (Sagheb Decl. ¶ 5, Exh. A.)  Plaintiff Counsel states that on information and belief, Defendant Client has fled the country to China to avoid the federal indictment.  (Sagheb Decl. ¶ 6.)  If Client has indeed fled the country to China, mailing service to an address in California – as moving Counsel’s declaration suggests – would be insufficient to give notice to Client of the proceedings.

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.

Because Counsel has failed to confirm within 30 days of the motion that Client’s address is current, Counsel’s motion to be relieved is denied without prejudice.  Before renewing this motion to be relieved, Counsel must make diligent and reasonable efforts to obtain a current address for Client by a combination of the following means: mailing the motion papers to Client’s last known address, return receipt requested; calling Client’s last known telephone numbers; contacting persons familiar with Client; and conducting searches via Lexis, a private investigator, or other means.  If after making these reasonable and diligent efforts, Counsel is still unable to locate a current address for Client, Counsel may renew her motion to be relieved by filing new moving papers, and properly completing item 3(b)(2) of Form MC-052 to identify all diligent and reasonable efforts made to attempt to locate a current address for Client.

 

As Plaintiff’s post-mediation status report notes, “Plaintiff has now been served with a civil action filed by Zhenya He, a defendant in default in this action, in which Ms. He seeks to quite [sic] title to the property that is the subject of this action, purchased by Plaintiff.”  (Sagheb Decl. ¶ 8, Exh. B.)  To the extent that Plaintiff contends that the actions (21STCV09634 and 23AHCV00325) are related, Plaintiff must file and serve a notice of related cases in both actions (21STCV09634 and 23AHCV00325). 

The Court hereby sets an OSC re filing of notice of related cases for June 8, 2023 at 8:30 am.

Moving Counsel is ordered to provide notice of this order and file proof of service of such.  The Court’s Judicial Assistant shall also serve a copy of this order on Plaintiff.

 

 

DATED: May 22, 2023                                                          ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court