NATIONAL COMMERCIAL RECOVERY INC. VS NEW YORK MART EL MONTE, INC., A CALIFORNIA CORPORATION, ET AL.

Tentative Rulings

Case Number: 18NWLC30705    Hearing Date: March 03, 2021    Dept: 25

HEARING DATE: Wed., March 3, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: National Commercial Recovery, Inc. v. New York Mart El Monte, Inc., et al.

CASE NUMBER: 18NWLC30705 COMPL. FILED: 09-10-18

NOTICE: OK DISC. C/O: NONE

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Defendant Ming Zhe Zhang’s Counsel Doron F. Eghbali

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2); CRC rule 3.162)

TENTATIVE RULING:

Defendant’s Counsel Doron F. Eghbali’s Motion to be Relieved as Counsel is GRANTED and the Order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Defendant Zhang] has been filed with the court.” (Id.)

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 March 1, 2021 [ ] Late [X] None

REPLY: None filed as of March 1, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On September 10, 2018, Plaintiff National Commercial Recovery, Inc. (“Plaintiff”) filed a complaint for money, common counts, violation of the Perishable Agricultural Commodities Act, violation of bulk sale laws, and fraudulent transfer of assets against Defendants New York Mart El Monte, Inc. dba Ifresh Market (“New York”), Long Deng (“Deng”), Ming Zhe Zhang (“Zhang”), Super HK of El Monte (“Super HK”), and Myint Kyaw (“Kyaw”). Defendants New York, Deng, and Zhang filed an Answer on May 15, 2019. The Honorable Ann H. Park in Department A at the Norwalk Courthouse found this was not a collections case on May 24, 2019 and transferred the action to this limited jurisdiction department. (5/24/19 Minute Order.) Defendants Super HK and Kyaw filed their answer on August 16, 2019.

Pursuant to Plaintiff’s request, Defendants Super HK and Kyaw were dismissed from the action on December 18, 2019, and Defendant New York was dismissed on October 6, 2020. (12/17/19 & 9/29/20 Requests for Dismissal.)

On December 28, 2020, Defendant Zhang’s Counsel Doron F. Eghbali (“Counsel”) filed the instant Motion to be Relieved as Counsel (the “Motion”), which was originally set for hearing for June 7, 2021. On December 30, 2020, the Court granted Counsel’s ex parte application to shorten the time for hearing on the Motion and set it for hearing for January 25, 2021 at 11:00 a.m. (12/30/20 Minute Order.)

At the initial January 25, 2021 hearing, the Court noted Counsel’s Motion did not specify whether he confirmed the address at which Defendant Zhang was served at most thirty (30) days before filing the Motion or whether he was unable to confirm the address was still current despite his efforts. (1/25/21 Minute Order.) The Court also found Counsel did not give notice of the Court’s December 30 continuance. (Id.) Counsel was ordered to file and serve supplemental papers correcting these errors. (Id.)

Counsel filed supplemental papers on January 29, 2021. 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).)

1. Discussion

Defendant’s Counsel seeks to be relieved due to a complete lack of communication between Defendant Zhang and Counsel. (MC-052, ¶ 2.) Counsel states he served this Motion at Defendant Zhang’s last known address. (Id. at ¶ 3.) In his supplemental papers, Counsel explains he has not been able to locate a more current address, despite his efforts. (1/29/21 Eghbali Decl., ¶ 3.) Counsel also filed a proof of service demonstrating he gave Plaintiff, Defendant Deng, and Defendant Zhang notice of this hearing via email and FedEx overnight delivery. (1/29/21 Notice of Continuance.)

The Court is satisfied with Counsel’s reasons for seeking to be relieved and finds he has satisfied the requirements of California Rules of Court, rule 3.1362, subdivision (a). Importantly, the previously scheduled March 3, 2021 trial was vacated and has not yet been rescheduled, giving Defendant Zhang sufficient time to obtain new counsel should they wish to continue defending against this action. Accordingly, the unopposed Motion is GRANTED.

1. Conclusion & Order

For the foregoing reasons, Defendant’s Counsel Doron F. Eghbali’s Motion to be Relieved as Counsel is GRANTED and the Order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Defendant Zhang] has been filed with the court.” (Id.)

Defendant Zhang’s Counsel is ordered to give notice.

Case Number: 18NWLC30705    Hearing Date: January 25, 2021    Dept: 25

HEARING DATE: Mon., January 25, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: National Commercial Recovery, Inc. v. New York Mart El Monte, Inc., et al.

CASE NUMBER: 18NWLC30705 COMPL. FILED: 09-10-18

NOTICE: NO DISC. C/O: 02-01-21

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Defendant Ming Zhe Zhang’s Counsel Doron F. Eghbali

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2); CRC rule 3.162)

TENTATIVE RULING:

Defendant’s Counsel Doron F. Eghbali’s Motion to be Relieved as Counsel is CONTINUED TO MARCH 3, 2021 AT 10:30 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Counsel must file supplemental papers addressing the deficiencies 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 January 21, 2021 [ ] Late [X] None

REPLY: None filed as of January 21, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On September 10, 2018, Plaintiff National Commercial Recovery, Inc. (“Plaintiff”) filed a complaint for money, common counts, violation of the Perishable Agricultural Commodities Act, violation of bulk sale laws, and fraudulent transfer of assets against Defendants New York Mart El Monte, Inc. dba Ifresh Market (“New York”), Long Deng (“Deng”), Ming Zhe Zhang (“Zhang”), Super HK of El Monte (“Super HK”), and Myint Kyaw (“Kyaw”). Defendants New York, Deng, and Zhang filed an Answer on May 15, 2019. The Honorable Ann H. Park in Department A at the Norwalk Courthouse found this was not a collections case on May 24, 2019 and transferred the action to this limited jurisdiction department. (5/24/19 Minute Order.) Defendants Super HK and Kyaw filed their answer on August 16, 2019.

Pursuant to Plaintiff’s request, Defendants Super HK and Kyaw were dismissed from the action on December 18, 2019, and Defendant New York was dismissed on October 6, 2020. (12/17/19 & 9/29/20 Requests for Dismissal.)

On December 28, 2020, Defendant Zhang’s Counsel Doron F. Eghbali (“Counsel”) filed the instant Motion to be Relieved as Counsel (the “Motion”), which was originally set for hearing for June 7, 2021. On December 30, 2020, the Court granted Counsel’s ex parte application to shorten the time for hearing on the Motion and set it for hearing for January 25, 2021 at 11:00 a.m. (12/30/20 Minute Order.)

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).)

1. Discussion

Defendant’s Counsel seeks to be relieved due to a complete lack of communication between Defendant Zhang and Counsel. (MC-052, ¶ 2.) Counsel states he served this Motion at Defendant Zhang’s last known address. (Id. at ¶ 3.) However, Counsel did not specify whether he confirmed the address was current at most 30 days before filing this Motion or whether he was unable to confirm the address despite his efforts. (Id.) In addition, although Counsel served Plaintiff, Defendant Deng, and Defendant Zhang with the Motion, he did not give the parties notice of the Court’s December 30 Order setting today’s hearing. Thus, Counsel has not satisfied California Rules of Court, rule 3.1362.

1. Conclusion & Order

For the foregoing reasons, Defendant’s Counsel Doron F. Eghbali’s Motion to be Relieved as Counsel is CONTINUED TO MARCH 3, 2021 AT 10:30 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Counsel must file supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Defendant’s Counsel is ordered to give notice.