Judge: Fumiko Wasserman, Case: 22CMCV00686, Date: 2023-11-16 Tentative Ruling
Case Number: 22CMCV00686 Hearing Date: November 16, 2023 Dept: B
22CMCV00686
RICARDO GONZALEZ vs PEREZ EXPRESS INC. et al. Relieved as Counsel
[TENTATIVE] ORDER
This action arises from a collision
between Plaintiff’s tractor-trailer and Defendants’ tractor-trailer truck. Defendants
Perez Express, Inc. and Raul Lopez Coronado own the tractor-trailer that was
operated by Defendant Hector Flores on the day of the alleged collision. Plaintiff
filed the complaint for negligence on December 13, 2022. Defendants
collectively filed a Cross-Complaint against Plaintiff, Ricardo Gonzalez,
seeking indemnity, equitable apportionment, and declaratory relief.
Defendant/Cross-Complainant Hector Flores’ counsel, Stacey A. Miller, Esq. of
Tharpe & Howell, LLP, requests an order to be relieved as counsel as there
has been a breakdown in the attorney-client relationship that has made it
unreasonably difficult to carry out representation.
Counsel’s declaration demonstrating that
the clients address is current is unclear. In accordance with California Rules of Court, Rule 3.1362 subdivision (d)(1), if service on the client was by mail it must
be accompanied by a declaration demonstrating facts that the address for
service is either the current residence of the client or that the attorney
could not locate a more current address after making reasonable efforts. “As
used in this rule, ‘current’ means that the address was confirmed within 30
days before the filing of the motion to be relieved. Merely 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.” (Cal. Rules of Court,
Rule 3.1362 subd. (d)(2).)
Here, Counsel declares that service was by mail. (Decl. in Support
of Attorney’s Motion to be Relieved as Counsel, ¶ 3(a)(2).) To demonstrate that
the address is current, counsel both declares that the address was confirmed
when certified mail was “recently returned” and declares that counsel was
unable to confirm the address through mailing, calling, contacting former
employers, online database searches, and a private investigator. (Id. at
¶¶ 3(b)(1)(d) and (3)(b)(2).) The declaration both represents that the address
for service was confirmed and that the address could not be confirmed through
significant efforts. Because of this direct contradiction, the Court cannot
make the express finding that the requirements of California Rules of Court,
Rule 3.1362, have been satisfied. (See Order Granting Attorney’s Motion to be
Relieved as Counsel, ¶ 3(b).)
Accordingly, the Court
continues the hearing to December 10, 2023, at 8:30 a.m. in Department B of the
Compton courthouse. Counsel is ordered to file a supplemental declaration 10 court
days before the hearing addressing the discrepancy outlined above. If the
client’s address cannot be confirmed, Counsel may deliver this minute order and
any supplemental papers to the clerk of the court, for that party. (Code Civ. Proc., § 1011 subd.
(b)(3).)