JOSE VILLATORO MUNOZ VS JOSE MARTINEZ MOLINA

Tentative Rulings

Case Number: 18STLC13021    Hearing Date: November 05, 2019    Dept: 94

MOTION TO WITHDRAW APPEARANCE

(CCP § 473(b), mandatory)

TENTATIVE RULING:

Defendant Jose Martinez Molina’s Motion to Withdraw Appearance is GRANTED.

ANALYSIS:

I. Background

Ten months after Plaintiff Jose Villatoro Munoz (“Plaintiff”) filed this action against Defendant Jose Martinez Molina (“Defendant”), Defendant’s counsel mistakenly filed a Notice of Posting Jury Fees. Realizing that the Notice constituted a general appearance, Defendant filed instant Motion to Withdraw Appearance (the “Motion”) under CCP § 128 and the mandatory provision of CCP § 473(b)—though, Defendant erroneously cites to subdivision (a) instead of (b) of Section 473.

II. Discussion

“It has been held that a defendant for whom a general appearance has been entered by unauthorized counsel may withdraw from the action upon a sufficient factual showing to overcome the rebuttable presumption that an attorney has authority to appear for the person for whom he professes to act. [Citation.]” (Omega Video Inc. v. Superior Court (1983) 146 Cal.App.3d 470, 476.) “There is a presumption that an attorney has authority to appear for any person for whom he professes to act [citation], but this presumption is disputable [citation].” (Wilson v. Barry (1951) 102 Cal.App.2d 778, 780.)

Defendant’s counsel submits a declaration attesting that because Defendant was not properly served with the Summons and Complaint, it was not his intention to file the Notice of Posting Jury Fees. (Motion, Moscatel Decl ¶ 3.) Rather, the filing was a result of his computer system automatically generated an alert to file the Notice. (Id., Moscatel Decl ¶ 4.) Defendant’s counsel also attests that his client has not given him permission to appear in this action. (Id., Moscatel Decl ¶ 5.) Importantly, Plaintiff has not opposed the Motion. Accordingly, the Court finds that Defendant has met his burden of rebutting the presumption that Defendant’s counsel did not have permission to file the Notice of Posting Jury Fees.

III. Conclusion & Order

The unopposed Motion is GRANTED. The Notice of Posting Jury Fees is hereby STRICKEN from the court record. The $150 in jury fees that was paid is ordered to be returned to Defendant.

Plaintiff has failed to file proof of service of summons and complaint within 60 days of the filing of this action as required by CRC 3.110(b) even though this action was filed more than a year ago. Per CRC 3.110(f), the Court hereby advances the OSC Hearing re: Failure to File Proof of Service of Summons and Complaint to today’s date and continues it to 02/04/2020 at 10:30 a.m. in Department 94.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.