Judge: Elaine Lu, Case: 21STCV43201, Date: 2022-08-29 Tentative Ruling

Case Number: 21STCV43201    Hearing Date: August 29, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

            Richard Daggenhurst of Felman, Daggenhurst, & El Dabe (“Defendant’s Counsel”) moves to be relieved as counsel of record for Defendant David Bogner (“Defendant”).  Defendant’s Counsel filed the present Motion to Be Relieved as Counsel on July 27, 2022.

            In accordance with California Rules of Court, Rule 3.1362, Defendant’s Counsel has properly filed a Notice of Motion and Motion to Be Relieved as Counsel—Civil (MC-051), a Declaration in Support of Attorney’s Motion to Be Relieved as Counsel—Civil (MC-052), and a Proposed Order Granting Attorney's Motion to Be Relieved as Counsel-Civil (MC-053).  (Cal. Rules of Court, Rule 3.1362, subd. (a), (c), (e).)

            Defendant’s Counsel’s basis for withdrawal is summarized as follows: “[T[he attorney-client relationship between Defendant Bogner and this firm has wholly broken down and certain other considerations of that broken down attorney-client relationship require this firm to withdraw from representing the client in this matter.”  (Decl. in Supp. of Attorney’s Mot., ¶ 2.)

            The Court finds Defendant’s Counsel has failed to comply with the service requirements, as outlined within California Rules of Court, Rule 3.1362.  (Cal. Rules of Court, Rule 3.1362, subd. (d)(1).)  Defendant’s Counsel represents that the Notice of Motion and Motion, and Declaration have been served upon Defendant “by mail at the client’s last known address”.  (Decl. in Supp. of Attorney’s Mot., ¶ 3.)  Defendant’s Counsel further represents that Defendant’s last known address has been confirmed within the last thirty (30) days to be Defendant’s “current” address “by UPS tracking”.  (Ibid.)  California Rules of Court, Rule 3.1362, subdivision (d) provides that “[m]erely demonstrating that the notice was sent to the client’s last known address and was not returned . . . is not, by itself, sufficient to demonstrate that the address is current.”  (Cal. Rules of Court, Rule 3.1362, subd. (d).)  Defendant’s Counsel does not explain how the use of “UPS tracking” confirmed Defendant’s last known address is “current,” as defined by California Rules of Court, Rule 3.1362, subdivision (d).  (Ibid.)  To the extent Defendant’s Counsel’s reference to “UPS tracking” equates with the successful delivery of the present Notice of Motion and Motion, and Declaration, such successful delivery, alone, is insufficient to adequately confirm Defendant’s address.  (Ibid.)

            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 the 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.

            The Court further notes that Defendant’s Counsel’s Proposed Order Granting Attorney's Motion to Be Relieved as Counsel-Civil (MC-053) is deficient, as Defendant’s Counsel has failed to complete Sections 7, 8, and 9, which require Defendant’s Counsel to identify “[t]he next scheduled hearing in this action”, “additional hearings and other proceedings (including discovery matters) [which] are set in this action”, and “[t]he trial in this action”.  (Proposed Order, ¶¶ 7-9.)  The Court’s docket reflects the following hearing and trial dates are upcoming, and either “scheduled” or “reserved” in this action: (1) Hearing on Motion for Order Request for Court Judgment under CCP 585(b), 585(c), 989, etc. against Defendant Ernest Financial, LLC, scheduled on November 18, 2022 at 8:30 a.m. in Department 26 (“Reserved”); (2) Hearing on Motion for Judgment on the Pleadings on November 30, 2022 at 8:30 a.m. in Department 26 (“Reserved”); (3) Hearing on Motion to Set Aside/Vacate Default on January 5, 2023 at 8:30 a.m. in Department 26 (“Reserved”); (4) Post-Settlement Status Conference on January 23, 2023 at 8:30 a.m. in Department 26 (“Scheduled”); (5) Final Status Conference on June 26, 2023 at 9:00 a.m. in Department 26 (“Scheduled”); and (6) Jury Trial (7-10 day est.) on July 10, 2023 at 9:30 a.m. in Department 26.

            Defendant’s Counsel is responsible for determining if there are any other hearings scheduled or due dates for discovery for this case, including any motions hearings, which must all be listed upon the Proposed Order.  For each hearing, Defendant’s Counsel is required to state the date, time, and location of the hearing (“111 N. Hill Street, Dept. 26, Los Angeles, CA 90012”).  For each due date for discovery, Defendant’s Counsel must identify the nature of the discovery responses that are outstanding, the due date, and the address where verified responses must be sent. 

            In light of Defendant’s Counsel’s inadequate efforts to confirm the ongoing validity of Client’s last known address, the Court is precluded from permitting Defendant’s Counsel’s withdrawal, as requested.  Defendant’s Counsel is ordered to submit a revised Motion to Be Relieved as Counsel, ensuring confirmation of Defendant’s “current” address is obtained prior to notice and service of the present Motion to Be Relieved as Counsel, in accordance with California Rules of Court, Rule 3.1362.  (Cal. Rules of Court, Rule 3.1362, subd. (d)(1).)  Further, upon submission of a revised Motion to Be Relieved as Counsel, Defendant’s Counsel should ensure the adequate amendments are made to the Proposed Order Granting Attorney's Motion to Be Relieved as Counsel-Civil (MC-053).

Conclusion and ORDER

            Richard Daggenhurst of Felman, Daggenhurst, & El Dabe’s Motion to Be Relieved as Counsel is DENIED, without prejudice.

            Moving Party to give notice within seven (7) days.

DATED:  August 29, 2022                                                     ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court