GAIN FEDERAL CREDIT UNION FKA BURBANK CITY FEDERAL CREDIT UNION VS JACQUELINE SAGORY TAPIA

Tentative Rulings

Case Number: 19STLC08517    Hearing Date: August 10, 2020    Dept: 25

HEARING DATE: Mon., August 10, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Gain Federal Credit Union v. Tapia

CASE NUMBER: 19STLC08517 COMP. FILED: 09-16-19

NOTICE: OK DISC. C/O: 02-13-21

MOTION C/O: 02-22-21

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Defendant’s Counsel Tyneia Merritt

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2); CRC rule 3.162)

TENTATIVE RULING:

Defendant’s Counsel Tyneia Merritt’s Motion to be Relieved as Counsel is CONTINUED TO OCTOBER 22, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant’s Counsel must file and serve supplemental papers addressing the errors identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of August 6, 2020 [ ] Late [X] None

REPLY: None filed as of August 6, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On September 16, 2019, Plaintiff Gain Federal Credit Union (“Plaintiff”) filed an action for breach of contract, money lent, and account stated against Defendant Jacqueline Tapia aka Jacqueline Sagory aka Jaqueline Sagory Tapia (“Defendant”). On October 30, 2019, Defendant filed an Answer.

On April 10, 2020, Defendant’s attorney Tyneia Merritt (“Counsel”) with the National Litigation Law Group filed the instant Motion to be Relieved as Counsel (the “Motion”). To date, no opposition has been filed.

1. Legal Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc. § 284, subd. (2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).)

In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, 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 before the filing of the motion to be relieved.

(Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).) (Italics added.)

1. Discussion

Defendant’s Counsel seeks to be relieved due to a breakdown in the attorney-client relationship and because it is in the best interest of Defendant that the attorney-client relationship be terminated. (MC-052, ¶ 2.) The Court is satisfied with Counsel’s reasons for seeking to be relieved. In addition, trial is set for March 15, 2021, giving Defendant sufficient time to seek other counsel should she wish to obtain new representation.

However, Counsel confusingly states both that she confirmed Defendant’s current address via return receipt, and that Counsel has been unable to confirm Defendant’s address despite mailing the Motion to the last known address with return receipt requested, calling Defendant’s last known phone number, and emailing Defendant. (Id. at ¶ 3(a), (b).) Thus, Defendant’s Counsel is ordered to file an amended Form MC-052 correcting this error.

1. Conclusion & Order

For the foregoing reasons, Defendant’s Counsel Tyneia Merritt’s Motion to be Relieved as Counsel is CONTINUED TO OCTOBER, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant’s Counsel must file and serve supplemental papers addressing the errors identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.