18-CIV-05988 MICHAEL IRVING VS. RAFAELA NUNEZ, ET AL.

MICHAEL IRVING RAFAELA NUNEZ
WHITNEY D. ACKERMAN

WHITNEY D. ACKERMAN’S MOTION TO BE RELIEVED AS COUNSEL TENTATIVE RULING:

The motion to be relieved as counsel is DENIED without prejudice for lack of proof that it was served in compliance with CRC 3.1362(d) and CCP §1005.

On May 5, the court entered an order providing that “The Court, having read and considered Plaintiff’s attorney’s moving papers and the court’s record on the above captioned matter grants Plaintiff’s attorney’s request to serve Plaintiff himself pursuant to CCP § 1011 et seq.” Counsel, however, has not provided code-compliant proof of service indicating that Plaintiff Michael Irving was served by mail or substitute service.

Counsel has filed two documents entitled “Proof of Service.” The first proof of service contains no facts, and is a photocopy of a certified mail receipt signed by someone other than the addressee. Notably, the proof of service contains no facts indicating what was mailed, whether it was mailed, and whether the return receipt was received by counsel. The second proof of service indicates that Hosea Irving was served as “Person in Charge Of Office” at Plaintiff’s last known address, 111 Hazel Ave in Redwood City. The declaration indicates, however, that service was made at 8:39 p.m. This contradicts the declaration that “Service was made . . . between the hours of eight in the morning and six in the afternoon.” More significantly, it contradicts CCP § 1011, which provides that “Any attempt of service upon a party at the party’s residence shall be made between the hours of 8 a.m. and 8 p.m.”

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.