Judge: Elaine Lu, Case: 22STCV30082, Date: 2024-02-21 Tentative Ruling

Case Number: 22STCV30082    Hearing Date: February 21, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Defense counsel, James P. Gutierrez (“Counsel”), moves to be relieved as counsel for Defendants Jose Almendares and Luis Almendares (jointly “Clients”). On January 11, 2024 Counsel filed the instant motions 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 Clients’ last known mailing address, which Counsel claims he has confirmed as current within 30 days of the motion by telephone.  However, this assertion is contradicted by Counsel’s declaration, which states that “Client[s] ha[ve] failed to communicate with the Attorney or call the office. Various calls have been place[d] to Clients regarding their pending case and our office has not received a call back. A substitution of Attorney attempt was made and no response has been sent.” 

Based on Counsel’s declaration, it is unclear whether Counsel is in contact with Client or has even properly served the instant motion to be relieved.  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, then Counsel should file a declaration showing “[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].)  Here, Counsel claims to have called Clients but they have not responded.  Therefore, it is not possible for Counsel to have confirmed the address by telephone within 30 days if the Clients have not been responding to Counsel’s calls. 

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.

In addition, the proposed order on form MC-053 must include the following additional language:

-       In item 7 (next scheduled hearing): “Final Status Conference and Order to Show Cause Re: Sanctions for Plaintiffs failure to Appear, set for April 3, 2024 at 8:30 am at 111 N. Hill St., Dept. 26, L.A., CA 90012.”

-       In Item 9: “Trial set for April 15, 2024 at 8:30 am at 111 N. Hill St., Dept. 26, L.A., CA 90012.” 

-       Also in Item 9, Counsel must also include the following language: “Failure to appear at trial will result in the Court deeming that Defendants waive Defendants’ appearance for trial, the trial proceeding in Defendants’ absences, and the entry of judgment against Defendants in any amount of damages and fees proven at trial.”

-       Also in Item 13:  “Moving Counsel is ordered to serve all parties, including Client, with a copy of this signed order and file proof of service of such within three days.”

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 his 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.

Moving Counsel is ordered to provide notice of this order and file proof of service of such on all parties, including Clients.

DATED: February ___, 2024                                                 ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court