Judge Lon F. Hurwitz, Case 22-01249698 2023-08-11 Tentative Ruling

Judge: Lon F. Hurwitz, Case: 22-01249698, Date: 2023-08-11 Tentative Ruling

1. Motion to Be Relieved as Counsel of Record

2. Status Conference

Motion To Be Relieved As Counsel

Moving Party: Kane Moon, Brett Gunther, and Moon

Law Group, PC

Appearing for: Plaintiff Victor Diaz Campos

Responding Party: None (unopposed)

SERVICE: July 11, 2023, by U.S. Mail and email;

Amended notice, August 1, 2023, by U.S. Mail and email

RELIEF SOUGHT: Kane Moon, Brett Gunther, and Moon Law Group, PC seek to be relieved as counsel for Plaintiff Victor Diaz Campos.

UPCOMING EVENTS: None

FACTS/OVERVIEW: On March 8, 2022, Plaintiff Victor Diaz Campos (“Plaintiff”) filed a Class Action Complaint alleging several wage and hour violations and a claim of unfair business practices against Defendant Temcal Development Corp. (“Defendant”). (ROA 2) On April 27, 2022, as a matter of right, Plaintiff filed the operative First Amended Complaint (“FAC”) wherein he added a PAGA cause of action. (ROA 10) Plaintiff worked as a car washer for Defendant, and Defendant classified him as a non-exempt, hourly worker.

On October 11, 2022, counsel for Plaintiff, Kane Moon and Lilit Tunyan of Moon & Yang, APC, filed their first motion to be relieved as counsel. (ROA 34). The motion was denied without prejudice by this Court on January 27, 2023, because the proof of service indicated that Counsel served an individual named “Victor Garcia” instead of Plaintiff. (ROA 52). Since it was unclear what relationship (if any) Victor Garcia had with Plaintiff, the Court could not assume proper service had been achieved. The Court granted Counsel permission to refile the motion. (Ibid.)

On February 22, 2023, Kane Moon and Lilit Tunyan filed their second motion to be relieved as counsel. (ROA 63). However, on June 9, 2023, the Court denied the motion without prejudice because counsel had failed to comply with the CRC Rule 3.1362(d) requirement to serve Plaintiff with a copy of the proposed order and to lodge a copy of the proposed order with the Court. (ROA 78). The Court ordered counsel to re-serve Plaintiff in compliance with Rule 3.1362, and to lodge a copy of the proposed order with the Court. (Ibid.)

On July 11, 2023, Plaintiff’s counsel filed a Notice of Change of Firm Name advising that the law firm, Moon & Yang, APC, had changed its name to Moon Law Group, PC. (ROA 85). The notice was signed by Kane Moon, Brett Gunther, and Linh Tran. (Ibid.)

The same day, Kane Moon, Brett Gunther, and Moon Law Group, APC filed the current Motion to Be Relieved as Counsel. (ROA 87). The motion is unopposed.

CONTENTIONS AND ANALYSIS:

Statement of the Law

Motions to be relieved as counsel are technical and governed by California Rules of Court, Rule 3.1362. Notice and motion must be directed to the client on Judicial Council Form MC-051. No memorandum is required. (CRC Rule 3.1362 (a) and (b)). Counsel must provide a declaration on Judicial Council Form MC-052 stating the basis for the motion “in general terms and without compromising the confidentiality of the attorney-client relationship.” (CRC Rule 3.1362(c)).

The notice of motion and motion, the declaration, and the proposed order must be served on the client and all parties “by personal service, electronic service, or mail.” (CRC Rule 3.1362(d)).

Pursuant to CRC Rule 3.1362(e), Counsel must also prepare a proposed order on Judicial Council Form MC-053 (Order Granting Attorney’s Motion to Be Relieved as Counsel – Civil), and lodge it with the court with the moving papers. The proposed order must specify all hearing dates scheduled in the action nor proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and all parties that have appeared in the case. The court may delay the effective date of the order relieving counsel until proof of service on the client has been filed with the court.

Merits

In the requisite supporting declaration, Attorney Gunther attests that the movants seek to be relieved as counsel for the following reason: “A breakdown in the relationship between counsel and Plaintiff has occurred such that counsel can no longer represent Plaintiff.” (ROA 83). Gunther goes on to state, “Further information can be provided at the time of the hearing if requested by the Court.” (Ibid.)

The declaration indicates that Plaintiff was served by mail at his last known address, with return receipt requested. On the face of the motion, it indicates that it was sent to Plaintiff at 42200 Moraga Road 20A, Temecula, CA 92591. (ROA 87). However, the proof of service and proposed Order indicate that the motion and supporting papers were also mailed to Plaintiff at 210 N. Scrivener Street, Lake Elsinore, CA 92530. (ROA 81, 88). In addition, the proposed Order indicates that the Lake Elsinore address is also Plaintiff’s “last known” address.

CRC Rule 3.1362(d)(1)(B) provides: “If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that …: … (B) The 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.”

Here, however, Gunther’s declaration does not comply with this provision. Unlike counsel’s previous motion, where a detailed recitation was provided in the declaration of counsel’s efforts to locate Plaintiff’s last known address, Gunther’s declaration does not provide any attestations indicating that reasonable efforts were made to locate Plaintiff’s current address. Moreover, Gunther’s declaration does not explain how or why both the Temecula address and the Lake Elsinore address are represented as Plaintiff’s “last known” address. This failure to comply with subdivision (d)(1)(B) of CRC Rule 3.1362 is fatal to the motion.

RULING:

The Motion to Be Relieved as Counsel submitted by Kane Moon, Brett Gunther, and Moon Law Group, PC is DENIED WITHOUT PREJUDICE. Movants failed to comply with the CRC Rule 3.1362(d)(1)(B) requirement to provide a declaration stating facts showing that counsel was unable to locate a more current address for Plaintiff Victor Diaz Campos after making reasonable efforts to do so. The supporting declaration also failed to explain how or why the “last known address” of Plaintiff Victor Diaz Campos is both 42200 Moraga Road 20A, Temecula, CA 92591, and 210 N. Scrivener Street, Lake Elsinore, CA 92530.

Counsel is ordered to file and serve its motion and supporting documents in compliance with all the applicable requisites of CRC Rule 3.1362. Defendant Temcal Development Corp. is granted an extension of time to file its responsive pleading until after this motion is heard.

Status Conference is continued to 10/25/23 at 1:30 p.m.

Clerk to give notice.