Judge: Elaine Lu, Case: BC681902, Date: 2022-12-05 Tentative Ruling
Case Number: BC681902 Hearing Date: December 5, 2022 Dept: 26
|
breanna
chambers, Plaintiff, v. joe l. ray,
jr., Defendant. |
Case No.: BC681902 Hearing Date: December 5, 2022 [TENTATIVE]
order RE: motion to be relieved as counsel |
Defense counsel, Alfred M. De La Cruz (“Counsel”),
moves to be relieved as counsel for Defendant Joe Ray Jones, Jr. aka Joe L.
Ray, Jr. (“Client”). On October 19, 2022, 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.
Counsel states that there has been a break
down in the attorney-client relationship such that Counsel can no longer
represent Client because Counsel is unable to reach and contact Client.
The MC-052 form states that Counsel served
Client via mail at Client’s last known mailing address, which Counsel states he
has been unable to confirm as current within 30 days of the motion. Counsel states that he mailed the motion
papers to the Client’s last known address, return receipt requested. Counsel called and texted the Client’s last
known number. Counsel also conducted a
web search. These efforts are
insufficient. At most, Counsel indicates
that Counsel contacted Client, and Client did not respond, and Counsel performed
an unspecified web search. Critically,
there is no indication that Counsel confirmed Client’s address through any of
these communications.
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 “[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).)
Further, Counsel does not assert that he
confirmed that the address is current by the traditional means of conversation
with persons familiar with Client on Form MC-052.
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:
-
Item 3(b) must be checked.
-
Item 5(a) must be checked.
-
In Item 6: Client’s current email address if
available.
-
In Item 7: the next upcoming hearing –
December 23, 2022 at 8:30 am – Defendant’s demurrer to the First Amended
Complaint
-
In
Item 13: “Client’s failure to serve discovery responses, oppose a discovery
motion, or appear at a discovery motion hearing (including those listed above)
may result in the discovery motion being granted and monetary sanctions being
awarded against Client.”
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.
Plaintiff filed this action on November 3,
2017 – more than five years ago. In
light of the age of the instant case, the Court hereby advances Defendant
Joe L. Ray, Jr.’s demurrer for hearing on December 23, 2022 at 8:30 am. All opposition and reply briefs must be
timely filed and served per code. Any
renewed motion to be relieved must include notice of the new hearing date for
Defendant Joe L. Ray, Jr.’s demurrer (December 23, 2022).
The Court notes that Defendant has reserved
a hearing date on the online Court Reservation System (CRS) for a motion for
sanctions for May 31, 2023. To date, no
moving papers have been filed. The
parties’ practice of reserving hearing dates without filing moving papers is
exacerbating the congestion of the Court’s motion calendar. No later than December 6, 2022, Defendant
must file and serve its moving papers for the May 31, 2023 reservation. As required by the Court’s General Order, the
moving papers must each identify the CRS reservation number and CRS reserved
hearing date in the caption. Failure to
file moving papers by December 6, 2022 for the reserved motion identified above
will result in the CRS reservation being cancelled on December 7, 2022 so that
the May 31, 2023 hearing date will become available for use by other litigants
in the public.
In addition, going ahead, each party in
this action is ordered to file all moving papers within one court day of making
a reservation on the Court’s online CRS system. If the party fails to file moving papers
within one court day of making a CRS reservation, the party must immediately
cancel the CRS reservation so that the hearing dates will become available for
use by other litigants. Failure to abide
by this order may result in the imposition of sanctions.
Court Clerk is to give notice of this
order to Defendant.
Moving party, Counsel, is to give notice
of this order to all parties, including Client, and to file proof ‘s Counsel of
service of such within 10 days.
DATED: December 5, 2022 ___________________________
Elaine Lu
Judge of the Superior Court