Judge: Elaine Lu, Case: 22STCV11499, Date: 2023-02-08 Tentative Ruling
Case Number: 22STCV11499 Hearing Date: February 8, 2023 Dept: 26
|
THE
FREMONT REGENCY CONDOMINIUM OWNERS’ ASSOCIATION, Plaintiff, v. marilyn
batchelor, et al. Defendant. |
Case No.: 22STCV11499 Hearing Date: February 8, 2023 [TENTATIVE]
order RE: motion to be relieved as counsel |
Defense counsel, Elliot S. Blut (“Counsel”),
moves to be relieved as counsel for Defendant Marilyn Batchelor (“Client”). On December
23, 2022, Counsel filed the instant motion to be relieved as counsel.
Counsel has filed a form MC-051 and MC-052
pursuant to California Rules of Court, Rule 3.1362. However, Counsel has filed to lodge the
proposed order on form MC-053 as required by California Rules of Court, Rule 3.1362(e).
Counsel states that there has been a
“breakdown in communication such that withdrawal at this time is
required.” The MC-052 form further states
that Counsel served Client via mail at Client’s last known mailing address, which
Counsel states he has not been able to confirm as current within 30 days of
filing the instant motion.
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 Counsel is unable to confirm the
address as current, the declaration must show “[t]he 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)(1)(B), [italics
added].) Moreover, “[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).)
Here, Counsel merely notes that he was
unable to confirm the address after mailing correspondence to the address,
return receipt requested, calling the client’s last known telephone number, and
serving the motion on Client’s current email address. Given that Counsel has expressly noted a
breakdown in communication, these efforts are insufficient to demonstrate that
a reasonable effort has been made to confirm Client’s address as current. There is no indication whether Client has
received or responded in any way to the calls, the emails, or the mailing by
return receipt. Nor is there any
indication of the number of attempts made by Counsel showing that the attempts
were reasonable. Further, no attempt was
made by Counsel to contact people familiar with Client to confirm the address
as current. Nor is there any indication
that Counsel has used Lexis or pursued other reasonable means to ascertain a
current working address for Client. In
sum, 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.
Moving Counsel is to give notice and file
proof of service.
DATED: February 8, 2023 ___________________________
Elaine
Lu
Judge
of the Superior Court