BRITTNEY MARIE WILKIN VS RICARDO HERNANDEZ, ET AL.

Tentative Rulings

Case Number: 22TRCV01180 Hearing Date: May 25, 2023 Dept: 8

Tentative Ruling

HEARING DATE: May 25, 2023

CASE NUMBER: 22TRCV01180

CASE NAME: Brittney Marie Wilkin v. Ricardo Hernandez, et al.

TRIAL DATE: None Set.

MOTION: (1) Motion to be Relieved as Counsel

Tentative Rulings: (1) Motion to be Relieved as Counsel is DENIED without prejudice to Ms. Ostoia providing more corroboration for the accuracy of the Oxnard address where the papers were purported to be personally served to “the party or the person authorized to receive process for the party.” The First Legal proof of service could be re-filed or amended with unequivocal proof that service was given to Ms. Wilkin personally, or Ms. Ostoia could provide other corroborating evidence such as a phone call with Plaintiff, and email from plaintiff, or other proof that the Oxnard address is valid.

I. Background

On November 8, 2022, Plaintiff, Brittney Marie Wilkin (“Plaintiff”) filed this action against Defendants Ricardo Hernandez, Stephen Doreck, Andrew Saldivar, John Moebus, and DOES 1 through 25. On March 24, 2023, Plaintiff’s attorney, Adina A. Ostoia, Esq. (“Ostoia”) filed a Motion to be Relieved as Counsel.

II. Legal Standard & Discussion

Code of Civil Procedure 284 states that “the attorney in an action…may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney…; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc. 284; CRC 3.1362.) The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably. (See Mandell v. Superior (1977) 67 Cal.App.3d 1, 4; Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.)

In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court 3.1362. The motion must be made using mandatory forms: Notice of Motion and Motion to be Relieved as Counsel directed to the client – Civil (MC-051); Declaration “stating in general terms and without compromising the confidentiality of the attorney-client relationship” reasons the motion was brought (MC-052); and a Proposed Order (MC-053). (Ibid.) The forms must be filed and served on all parties who have appeared in the case. (Ibid.)

Here, Plaintiff’s counsel, Adina Ostoia, moves the Court to relieve her as attorney of record for Plaintiff. Ms. Ostoia properly filed a Notice of Motion, Motion to be Relieved as Counsel, Declaration, and Proposed Order in accordance with Cal. Rules of Court 3.1362. Per the Proof of Service filed by First Legal, a registered process server, the motion, declaration, and proposed order for the pending motion were served on Plaintiff “or person authorized to receive process for the party” by hand at an address in Oxnard. The Oxnard address is listed in an exhibit to Ms. Ostoia’s declaration as the first-listed location in what appears to be a people search printout. Ms. Ostoia’s declaration states that she confirmed the client’s address exclusively by means of “TLO,” which appears to be a Web-based attorney service. That is not sufficient for the Court. The Person Search exhibit lists email addresses, an (805) area code phone number, recently flagged addresses on the same street in Auberry California, and an older address in San Pedro.

In her declaration Ms. Ostoia notes that “[t]here has been a breakdown in attorney-client communication such that continued representation is no longer feasible.” She further notes that they “have been unable to have the client sign the substitution of attorney.”

The Court needs to have more confidence in the evidence that the Oxnard address is in fact where Ms. Wilkin can be served with papers going forward, if and when the Court grants withdrawal of counsel of record. Defendants and the Court need to be able to serve notices and other papers on Plaintiff if she becomes self-represented. A further declaration from Ms. Ostoia that Ms. Wilkin confirmed the Oxnard address within the last 30 days would help, the process server’s physical description of the person served without the inclusion of a conjunction (“or) in the proof of service, or other confirmatory evidence. The Court will inquire at the hearing if and when such supplementary evidence can be provided.