Judge: Elaine Lu, Case: 23STCV05830, Date: 2023-09-27 Tentative Ruling
Case Number: 23STCV05830 Hearing Date: September 27, 2023 Dept: 26
|
galina
rokhmail, et al.,
Plaintiffs, v. payyourrent.com,
llc,
et al., Defendants. |
Case No.: 23STCV05830 Hearing Date: September 27, 2023 [TENTATIVE]
order RE: motion to be relieved as counsel |
Plaintiff’s counsel, Joseph B. Ollinger (“Counsel”),
moves to be relieved as counsel of record for the remaining Plaintiff Harriet
Farmer (“Client”). Counsel filed the
instant motion to be relieved as counsel on August 21, 2023.
Counsel has filed forms MC-051 and MC-052 pursuant
to CRC Rule 3.1362.
Counsel states that Client is avoiding him
and refusing to participate in the instant action. Counsel specifically states that:
Harriet Farmer has
not returned my calls, emails, or text messages since June 28th, 2023. My text
messages to her as of July 25th are marked delivered and read. I have called
her at least fifteen times and left several voicemails, as well as a video
message. I also sent her messages on Facebook Messenger and received no
response. I visited what I believed to be her residence on July 24th, 2023, and
was told by a new resident that he had moved in about three months previous,
and that no one named Harriet was currently living in the unit. Ms. Farmer knew
that if she moved or changed contact information, she was supposed to inform
me. I ran a skip trace and was unable to obtain a new address. I also inquired
with counsel for Charles & Cynthia Eberly, Inc., the property manager of
the building in which Ms. Farmer resided, and asked if Eberly had a forwarding
address for Ms. Farmer. It did not have one.
On July 24th,
2023, I spoke with Mary Grant, who is Harriet Farmer's daughter. She stated
that she had not spoken with or heard from Ms. Farmer recently, and had not
provided any new address or told her that she had moved.
Also on July 24th,
2023, I sent a Letter via USPS to Ms. Farmer's last known address, indicating
on the envelope for USPS to forward. The Letter asked for Ms. Farmer to call
me, and stated that it was urgent.
On July 26th,
2023, I ascertained the purported address of Ms. Farmer's business, Choir Boy
Productions, from its Facebook page. The address listed was 406 Broadway, #251,
Los Angeles, California, with no ZIP code listed. I went there. No such
building exists; the addresses go straight from 400 to 242. A Google search
revealed that 406 Broadway in Venice - not Los Angeles - is a mailbox store.
On July 31st,
2023, I left another voicemail for Ms. Farmer, email, and texted her again,
asking urgently for a call back. Also on July 31st, 2023, I called Mary Grant.
She stated that she had not heard from Ms. Farmer, no heard anything about her
whereabouts.
On August 2nd,
2023, I visited Ms. Farmer's Facebook page. I saw that she had posted some
pictures. I commented on one, asking her to call me, and saying that it was
urgent. Later that day, I could no longer access her page, nor could I locate
her in the search tool. This indicates that she blocked me.
I called Ms.
Farmer on the following dates and received no response: 6/28 (3x), 7/20, 7/21
(2x), 7/24 (4x), 7/25 (5x), 7/26 (4x), 7/27, 7/31 (5x), 8/1, 8/2, 8/3 (2x),
8/4, 8/7, 8/11, 8/16, 8/17, and 8/19.
My texts messages
since July 26th, 2023 are marked delivered but not read.
I checked the Los
Angeles County unidentified bodies database at
https://mec.lacounty.gov/unidentifiedpersons-search/ several times, most
recently on August 18th, 2023, and did not see any records which could possibly
have been Ms. Farmer.
Based on the
above, I concluded that Ms. Farmer is alive and is deliberately avoiding me and
this lawsuit for some reason. Ms. Farmer's conduct has made it unreasonably
difficult for the me to carry out the representation effectively. Her conduct
is also a breach of the Representation Agreement she signed, which requires
that Ms. Farmer "cooperate fully with Attorney and comply promptly with
his advice and requests" and "communicate openly and promptly with
attorney regarding any facts or matters that may be related to the case or the
representation in any way."
For these reasons,
I have no choice but to withdraw as Ms. Farmer's attorney
Counsel served Client at Client’s last
known mailing address, which Counsel states he has been unable to confirm as
current despite contacting the property manager conducting skip trace, sending
numerous emails, text messages, voicemails, and contacting through social media
as detailed above. The Court finds that Plaintiffs’ Counsel’s efforts
constitute a reasonable and diligent attempt to confirm the client’s address. Counsel
also served this motion on all other parties in the case.
Counsel is ordered to file a corrected proposed
order on form MC-053. Based on the notice of motion and the declaration filed
by counsel, the Court is inclined to grant the motion. However, Counsel must
file a properly completed proposed order. The proposed order must list the
client’s last known address for service purposes, as well as all upcoming
hearings set as of the date of the filing of the order and must make the
following corrections:
- In
item 7 (next scheduled hearing): “Order to Show Cause (OSC) re Dismissal set
for November 13, 2018 at 8:30 am at the Spring Street Courthouse, 312 North
Spring Street, Department 5, Los Angeles, CA 90012.” In Item 8, Counsel must
also include the following language to explain the nature of the OSC re
Dismissal: “Failure to appear at the 11/13/18 OSC and show good cause for
failure to serve Defendant(s) may result in dismissal of this action.”
- In
item 6: Counsel must list Client’s last known address for service, last known
phone number, and last known email address.
- In
item 7a: “November 16, 2023, 8:30 a.m., Dept 26, 111 N. Hill Street, Los Angeles,
CA 90012.”
- In
item 7b: “OSC re: Dismissal Pursuant to the Notice of Settlement Filed July
3rd, 2023. Failure to appear at the OSC will result in dismissal of this
action.”
- In
item 8: “Any party opposed to dismissal of the Complaint must filed and serve a
declaration and briefing setting forth reasons for opposition no later than November
9, 2023 and must also appear at the 11/16/23 OSC hearing and show cause why the
action should not be dismissed in its entirety pursuant to the 7/3/23 notice of
settlement. Failure to comply will
result in dismissal of the entire action.”
- In
item 13 (additional orders): “Counsel is ordered to file proof of service of a
signed copy of this order on all parties, including the client, within 3 court
days. Because Counsel has been unable to
verify the client’s current address, service must be made according to CCP §
1011(b)(3) [“[i]f the party's residence is not known, any attempt of service
pursuant to this subdivision may be made by delivering the notice or papers to
the clerk of the court, for that party.”] and CRC, Rule 3.252. The Court will also require Counsel to file
proof of service of a copy on Client’s last known address.”
The proposed order must also identify all
upcoming hearings and list the address of the Court in all items. 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 in the proposed order. For each hearing, Counsel must state the date,
time, and location of the hearing including the address and Department number
as follows: “111 N. Hill St., Dept. 26, L.A., CA 90012.” For each due date for discovery, Counsel must
identify the nature of the discovery responses that are outstanding, the due
date, and the address where verified responses must be sent.
Provided that Counsel presents a corrected
proposed order at or before the hearing on this motion, the motion to be
relieved as counsel will be granted.
Counsel should note that after the MC-053 order
is signed, the order will only become effective upon the filing of a proof of
service of a signed copy of the order on Plaintiff. Counsel will remain the
attorney of record until Counsel files with the Court proof of service of the
signed order. Counsel is ordered to serve a copy of the signed order (MC-053)
on Plaintiff within 3 court days. Counsel should also note that when Counsel
has been unable to verify the client’s current address, then service must be
made according to CCP § 1011(b)(3) and CRC, Rule 3.252. Moving Counsel is ordered to file proof of service of the instant
signed order as well as the signed MC-053 order within three court days.
DATED: September ___, 2023 ___________________________
Elaine
Lu
Judge
of the Superior Court