Judge: Ralph C. Hofer, Case: 24GDCV00122, Date: 2024-04-12 Tentative Ruling
Case Number: 24GDCV00122 Hearing Date: April 12, 2024 Dept: D
TENTATIVE RULING
Calendar: 10
Date: 4/12/2024
Case No. 24 GDCV00122 Trial Date: None Set
Case Name: Wang v. Kwan, et al.
MOTION TO BE RELIEVED AS COUNSEL
Moving Party: Liu Law, Inc.
Name of Client: Plaintiff Wenjia Wang (No Opposition)
Correct address in proof of service?
Client: Not clear
Other parties: ok
RELIEF REQUESTED:
Order permitting attorney to be relieved as attorney of record in this action
GROUNDS FOR MOTION:
Breakdown in attorney-client relationship, lack of payment, conflict
DECLARATION BY MOVING ATTORNEY:
Reasons why motion is necessary: ok
Address recently confirmed (within last 30 days)
Motion also served by email
PROPOSED ORDER: No Order
Address and phone number of client set forth: No
Proper warning: No
Future dates filled in: No
ANALYSIS:
Service on Client
The motion has not been properly served on the client. It appears from the proof of service that the motion was served on the client by mail and e-mail on March 21, 2024.
CRC Rule 3.1362(d) provides with respect to motions to be relieved as counsel that the moving papers, “must be served on the client…” and specifies, “The notice may be by personal service, email, or mail.”
Rule 3.1362(d) authorizes the service of a motion to withdraw on the client by mail where the motion is accompanied by a declaration stating facts showing the service address is either current or the last known address:
“(1) If the notice is served by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either:
(A) The service address is the current residence or business address of the client; or
(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 prior to the filing of the motion to be relieved.
(2) If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client’s current electronic service address.”
The rule further provides that;
“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 to the client or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) shall apply.”
Here, the declaration states that that the attorney has confirmed within the past 30 days that the address is current, by “This motion has also been served by email.” This declaration does not show either that the mailing address has been confirmed as current or that the email address has been confirmed as current.
This presentation is not sufficient showing to support service by mail or by email, as is required, as there are no facts stated sufficient to show confirmation of the current state of any address under the statute. The motion is denied on this ground.
In addition, even if the service were proper, the motion is not brought on sufficient notice, as it was served on the client by e-mail and mail on March 21, 2024, only 15 court days prior to the hearing, not the 16 court days permitted, and also without permitting an additional two days for service by e-mail or an additional five calendar days for service by mail, as required under CCP section 1005(b).
The motion accordingly is denied. Counsel is required to properly serve the motion on the client and submit appropriate proof of the propriety of the service at least one of the addresses where service was effected.
No Proposed Order
There has been no proposed order lodged with the court in connection with this motion.
CRC Rule 3.1362 (e) requires, in pertinent part:
“The proposed order relieving counsel must be prepared on the Order Granting Attorney’s Motion to be Relieved as Counsel—Civil (form MC-053) and must be lodged with the court with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known.”
Unless a proposed order is produced at the hearing, along with proof it was lodged with the court with the moving papers, the motion must be denied.
RULING:
[No Opposition]
Motion to be relieved as counsel is DENIED WITHOUT PREJUDICE.
The motion was not served or filed on sufficient notice but filed and served only fifteen court days prior to the hearing.
The motion also fails to state facts showing that there was any effort to confirm the currency of the client’s address of service (mail or electronic mail address) within the 30 days before filing the motion, as required under CRC Rule 3.1362 (d), subdivisions (1) and (2).
In addition, the moving papers are not accompanied by the lodging of a proposed order prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel— Civil form. See CRC Rule 3.1362 (e).
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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