Judge: Peter A. Hernandez, Case: 20PSCV00629, Date: 2022-10-27 Tentative Ruling

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Case Number: 20PSCV00629    Hearing Date: October 27, 2022    Dept: O

1.         Counsel for Defendant Ofelia Moreno’s (i.e., Michael L. Allan, Attorney at Law)

Motion to be Relieved as Counsel is GRANTED, effective upon the filing of the proof of

service showing service of the signed order upon the Client at the Client’s last known

address.

2.         Counsel for Defendant Efrain Moreno’s (i.e., Michael L. Allan, Attorney at Law)

Motion to be Relieved as Counsel is GRANTED, effective upon the filing of the proof of

service showing service of the signed order upon the Client at the Client’s last known

address.

Background   

Plaintiffs Maria Martinez (“Martinez”) and Eduardo Jimenez (“Jimenez”) (collectively, “Plaintiffs”) allege as follows:

Plaintiffs rent a converted garage studio apartment (“premises”) in La Puente from Efrain Moreno (“E. Moreno”). Plaintiffs have made several habitability complaints and believe E. Moreno has been spying on them in the shower and/or bedroom via a peephole. Martinez has called City Hall regarding Code violations.

Additionally, in July 2020, E. Moreno broke the door lock and entered the Premises while Plaintiffs were out and without Plaintiffs’ permission. Plaintiffs returned and were unable to enter the Premises, because E. Moreno had replaced and/or changed the door lock. When Plaintiffs went to speak with E. Moreno about this, E. Moreno’s daughter, Ofelia Moreno (“O. Moreno”), called the police, which resulted in Jimenez being arrested and jailed for 4 days. Martinez and her daughter stayed elsewhere while Jimenez was incarcerated. When Martinez tried to return to the Premises, O. Moreno called the police again. Gabriel Aguilar (“Aguilar”), a uniformed Pomona police office, pulled up in his patrol car and refused Martinez’s entry to the Premises, telling her that there was a restraining order against her. Aguilar is believed to be O. Moreno’s friend. E. Moreno did, in fact, obtain a restraining order against Martinez, which was done in retaliation for Martinez contracting City Hall. This restraining order was never served on Martinez and does not restrain Martinez from entering the Premises, but only to stay 2 yards away from E. Moreno and his family. Plaintiffs had to abandon the Premises on or about July 31, 2020.

On September 28, 2020, Plaintiffs filed a complaint, asserting causes of action against E. Moreno, O. Moreno, Aguilar and Does 1-50 for:

1.                  Breach of Contract

2.                  Breach of Covenant of Good Faith and Fair Dealing

3.                  Breach of Covenant of Quiet Enjoyment of the Premises

4.                  Trespass

5.                  Nuisance [Civil Code § 3479]

6.                  Intentional Infliction of Emotional Distress

7.                  Negligent Infliction of Emotional Distress

8.                  Negligence

9.                  Wrongful Eviction [Civil Code § 789.3]

10.              Constructive Eviction

11.              Uncured Building Violations [Civil Code § 1942.4]

On February 23, 2021, the court ordered Aguilar dismissed, without prejudice, pursuant to Plaintiffs’ counsel’s oral request.[1]

A Case Management Conference is set for October 27, 2022.

1.         Motion to be Relieved Re: Ofelia Moreno

Discussion

Attorney Michael L. Allan (“Attorney”) seeks to be relieved as counsel of record for O. Moreno (“Client”).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.)

California Rule of Court (“CRC”) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure § 284(2) is brought instead of filing a consent under section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion, the declaration, and the proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.

Attorney states in his declaration that a conflict of interest and irreconcilable breakdown in the attorney client relationship has arisen and that the client has also rendered it unreasonably difficult for him to carry out representation effectively.

Attorney states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with this declaration and that he has confirmed, within the past 30 days, that the address is current. Attorney represents that an electronic search for E. Moreno and O. Moreno show their current residence as the service address, and shows that they are related. Attorney further represents that no mail sent to the Client(s) at the service address has been returned to him. Attorney also represents that, on the service date, a copy of the motion package was also sent to Client’s personal email address and was not rejected.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above have been sufficiently met.

Accordingly, the motion is granted, effective upon the filing of the proof of service reflecting service of the signed order upon the Client at the Client’s last known address.

2.         Motion to be Relieved Re: Efrain Moreno

Attorney also seeks to be relieved as counsel of record for E. Moreno (“Client”).

See Legal Standard set forth above.

Attorney seeks to withdraw on the basis set forth above.

Attorney states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with this declaration and that he has confirmed, within the past 30 days, that the address is current. Attorney represents that an electronic search for E. Moreno and O. Moreno show their current residence as the service address, and shows that they are related. Attorney further represents that no mail sent to the Client(s) at the service address has been returned to him.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above have been sufficiently met.

Accordingly, the motion is granted, effective upon the filing of the proof of service reflecting service of the signed order upon the Client at the Client’s last known address.