Case Number: EC062296    Hearing Date: October 31, 2014    Dept: NCD

TENTATIVE RULING (10/31/14)
#2
EC 062296
TONG v. BANK OF AMERICA, N.A.

Real Estate Law Center, PC’s Motion to be Relieved as Counsel for plaintiff Peter Tong

TENTATIVE:
UNOPPOSED Motion is GRANTED, if proof of service is shown. Counsel is ordered to complete the Order to reflect information concerning the next scheduled hearing date in this matter at paragraph 7.

Once the Order is complete, the court will sign the Order and counsel will be relieved effective upon the filing of the proof of service of the signed order upon the client.

GROUNDS FOR MOTION:
Client fails and refuses to communicate with attorney

Procedural
There is no proof of service on file showing service of this motion on the client. Under CCP section 284:
“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows:
1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes:
2. Upon the order of the court, upon application of either client or attorney, after notice from one to the other.”
(emphasis added).

Under CRC 3.1362(d), with respect to a motion to be relieved as counsel:
“The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case.”

Thus, while the declaration states service was made by mail at an address confirmed in the last 30 days by mail, return receipt requested, there is no proof of service included in the moving papers. In any case, unless proof of service can be shown at the hearing, the motion will be denied without prejudice subject to renewal.

Substantive
The paperwork is in order, except counsel has failed to provide on the order the future dates in this matter. The matter is scheduled for a Case Management Conference the day of the hearing, at which a future date will likely be set. That date should be included in the order at paragraph 7. Counsel is instructed to complete paragraph 7 of the order designating the next hearing in this matter.