ENERGY SALVAGE, LLC VS ERNEST GONZALEZ

Tentative Rulings

Case Number: KC070171    Hearing Date: February 05, 2020    Dept: J

HEARING DATE: Wednesday, February 5, 2020

NOTICE: See below

RE: Energy Salvage, LLC v. Gonzalez, et al. (KC070171)

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Counsel for Plaintiff Energy Salvage, LLC’s (i.e., Andres, Andres & Moore, LLP)

MOTION TO BE RELIEVED AS COUNSEL

Responding Party: None (unopposed, as of 1/24/20, 12:09 p m.; due 1/23/20)

Tentative Ruling

Counsel for Plaintiff Energy Salvage, LLC’s (i.e., Andres, Andres & Moore, LLP)

Motion to be Relieved as Counsel is DENIED without prejudice.

Background

Plaintiff Energy Salvage, LLC (“Plaintiff”) is in the business of performing search, salvage, cleanup and repair operations in undersea environments. Plaintiff alleges as follows: Plaintiff attempted to obtain financing through defendants and paid $383,000.00 in transaction and finders fees. Nearly all of the money was supposed to be escrowed until the financing was received. Defendants never obtained the financing or paid back the funds.

On May 17, 2018, Plaintiff filed a First Amended Complaint, asserting causes of action against Defendants Earnest Gonzales, Hector Garza, Marc Bourget, Henry Liem, GM Investments, Joseph James aka Joseph Randazzo (“James”), Becky West and Does 1-20 for:

1. Fraud

2. Unjust Enrichment

3. Negligent Misrepresentation

4. Fraud

5. Unjust Enrichment

6. Negligent Misrepresentation

7. Professional Negligence

8. Professional Negligence

9. Negligent Referral

10. Money Had and Received

On February 15, 2019, Plaintiff dismissed GM Investments, without prejudice. On August 7, 2019, James’ default was entered.

A Default Judgment Prove Up is set for February 5, 2020. The Final Status Conference is set for July 14, 2020. Trial is set for July 21, 2020.

Discussion

Andres, Andres & Moore, LLP seeks to be relieved as counsel of record for Plaintiff (“Client”).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.

California Rule of Court (“CRC”) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP § 284(2) is brought instead of filing a consent under CCP § 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.

Counsel Jim Moore (“Moore”) states in his declaration that “Client has failed to meet its financial obligations under the terms of the written retainer with Attorney.”

Moore states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with his declaration and that he has confirmed within the past 30 days that the address is current, as follows: “Attorney searched both the Florida Secretary of State’s Business search and the Alabama Secretary of State’s Business search on 12/18/19, and both listed the same principal address. As well, attorney is serving all additional addresses associated with the company on both the Florida and Alabama Secretary of State sites, and is sending a courtesy copy by email to an email address used to send mail to and from the client.”

The court notes that the proof of service filed January 7, 2020 reflects that the motion was served on “Energy Subsea LLC;” however, the Client has been identified in this litigation as “Energy Salvage, LLC.” Counsel has not provided the court with any information reflecting that these two entities are one and the same.

The motion, then, is DENIED without prejudice.