JUDY NGUYEN VS ARISTED GASTELUM, ET AL.

Tentative Rulings

Case Number: 18STLC12905    Hearing Date: November 19, 2019    Dept: 94

PROCEEDINGS: MOTION TO WITHDRAW FILING OF NOTICE OF CHANGE OF HANDLING ATTORNEY WITHIN OUR FIRM AND/OR TO WITHDRAW APPEARANCE

TENTATIVE RULING:

Specially Appearing Defendant Ricardo Leon-Leon’s Motion is GRANTED in-part. Defendant Ricardo Leon-Leon’s May 24, 2019 filing of notice of change of attorney does not sufficiently constitute a general appearance.

ANALYSIS:

I. Background

On October 17, 2018, Plaintiff Judy Nguyen (“Plaintiff”) sued Defendants Aristed Gastelum, Ricardo Leon-Leon, and Does 1 to 10 (“Defendants”) for damage to Plaintiff’s property.

None of the Defendants have filed an answer.

On May 24, 2019, counsel for Defendant Ricardo Leon-Leon filed a “Notice of Change of Handling Attorney within Our Firm”, indicating Susan Hamilton would be handling the case instead of Keith Allen.

On September 6, 2019, Defendant Leon-Leon filed this motion.

II. Legal Standard & Analysis

Defendant makes three arguments: (1) the filing of the notice of change of attorney was done by mistake, inadvertence, or excusable neglect, and therefore, the filing should be withdrawn, (2) the filing of the notice of change of attorney does not constitute a general appearance, and (3) even if the filing of the notice constitutes a general appearance, the court should withdraw Defendant’s general appearance because the filing was done by mistake, inadvertence, or excusable neglect.

As to (1), Defendant does not provide any authority to “withdraw” the May 24, 2019 filing. Thus, the court is not inclined to do so.

As to (2) and (3), the court initially considers whether the determination of these issues is ripe before this court. Defendant essentially requests the court determine the issue outside of any context where Plaintiff has asserted Defendant has made a general appearance.

In the context of a cause of action, ripeness involves a “two-pronged analysis … (1) whether the dispute is sufficiently concrete to make declaratory relief appropriate; and (2) whether the withholding of judicial consideration will result in a hardship to the parties.” (Communities for a Better Environment v. State Energy Resources Conservation & Develop. Comm'n (2017) 19 CA5th 725, 733.) Under the first prong, courts will not adjudicate a dispute if, e.g., the court is asked to speculate on a hypothetical situation. But where “no factual context … is necessary, or even useful,” the first prong may be established. (Id. at 733-735.) Under the second prong, there must be an “imminent and significant hardship inherent in further delay.” (Id. at 734.) The court sees no reason to not apply these factors here.

Here, the issues are sufficiently ripe for the court to consider them. First, the factual context is sufficiently formed to appropriately consider the issue because Defendant has already filed the notice of the filing of change of attorney. Second, there is an imminent and significant hardship inherent in further delay because if Defendant indeed made a general appearance, Plaintiff would be relieved from needing to perform service of the summons and complaint, for which no proof of service has been filed at this time, and Plaintiff could enter default against Defendant if no timely responsive pleading is filed.

Thus, the court proceeds to consider Defendant’s arguments (2) and (3).

As to (2), the court agrees with Defendant that the notice of filing of change of attorney does not constitute a general appearance.

“‘[T]he scope of actions in the litigation process which constitute a general appearance [are] as follows: ‘A general appearance occurs where a party, either directly or through counsel, participates in any action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act. [Citations.] ‘If the defendant ‘raises any other questions, or asks for any relief which can only be granted upon the hypothesis that the court has jurisdiction of his person, his appearance is general....’ [Citation.]’ (Italics added.) Another court noted, ‘The appearance will be considered ‘general’ in nature if the defendant acts in a manner ‘showing of a ‘purpose of obtaining any ruling or order of the court going to the merits of the case.’” (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1153; see also Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250 [holding the same situations listed in Renoir constitute a general appearance and adding, “[i]n general, propounding discovery constitutes a general appearance.”].)

Here, the May 24, 2019 notice merely states that Defendant’s attorney within the same law firm has changed and that future correspondence should be directed to the new attorney. While there could be ambiguity whether counsel’s filing was participation in the action in some manner which recognizes the authority of the court to proceed, the other descriptions of the scope of actions that constitute a general appearance weigh distinctly in favor of finding no general appearance has occurred. First, Defendant, or his counsel, did not raise any questions or make any requests for relief which could only be granted upon the hypothesis that the court has jurisdiction of his person. Second, the filing does not show that Defendant acted in a manner showing of a purpose of obtaining any ruling or order of the court going to the merits of the case. Third, the notice is not tantamount to propounding discovery.

Accordingly, the May 24, 2019 filing of notice of change of attorney does not sufficiently constitute a general appearance.

As to (3), it is unnecessary for the court to reach the argument based on the court’s ruling as to (2).

III. Conclusion & Order

In light of the foregoing, the unopposed Motion is GRANTED in-part. Defendant Ricardo Leon-Leon’s May 24, 2019 filing of notice of change of attorney does not sufficiently constitute a general appearance.

Moving party is ordered to give notice.