Motion to be Relieved as Counsel of Record
Thus, the Court GRANTS the motion and awards the total amount of $40,503, broken down as follows: $525 x 63 (Scott) plus $345 x 12.6 (Tungate) plus $395 x 7.8 (Tungate).
Counsel for Plaintiff shall provide notice of this ruling. 8 Jackson v. Before the Court is a motion by Plaintiff Chapter Kris Jackson to Phancao, et. al. compel Defendant Patrick Phancao to participate in binding arbitration of plaintiff’s complaint. The motion is DENIED, as set forth herein.
Both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and Code Civ. Proc. §1281.2). "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; See also Green Tree Financial Corp.-Alabama v. Randolph (2000) 531 U.S. 79, 91-92).
Here plaintiff has failed to establish the existence of an arbitration agreement between Jackson and Phancao. There is no evidence submitted along with the motion demonstrating the existence of an arbitration agreement. “Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” (Rule 3.1306(a).) Accordingly, the motion is DENIED.
In addition, although plaintiff asserts the arbitration provision in the 2025 BMO Handbook is an arbitration agreement between Phancao and Jackson, the 2025 BMO Handbook contains an arbitration agreement between BMO and the account holder. (See page 19 of the 2025 BMO Handbook) Further, while plaintiff claims the arbitration provision in the 2025 BMO Handbook applies to banking transactions in 2015 and 2016 at the Bank of the West, such has not been established. Finally, plaintiff alleges “this is an independent action in equity” to set aside a default and default judgment based on fraud and not a dispute over Bank of the West’s handling of any banking transactions. (Complaint ¶14)
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Accordingly, the motion is DENIED.
Phancao is ordered to give notice of this ruling. 9 Kennedy v. O/C Maksoud 10 Castenada v. Doe Before the Court is an unopposed Motion to be Relieved as Counsel of Record, filed by attorney Mark Ruszecki as to the representation of plaintiff Joseph Castaneda.
The Court will hear argument from Mr. Ruszecki as to all efforts made to confirm the address of Mr. Castenada, as referenced in Para. 3 of his Declaration. In the event Mr. Ruszecki is able satisfactorily address the efforts made, the court will grant the motion. If counsel does not appear at the hearing, the motion will be denied.
In the event the motion is granted, Mr. Ruszecki will be required to submit a new order with all pending dates. The order will become effective upon filing a proof of service of the order on Mr. Castenada.
Mr. Ruszecki shall give notice. 11 Arck Services, LLC Cont. to 8/17. v. Bekam 12 FDC Tech, Inc. v. The motion by plaintiff FDC Tech, Inc. for an order permitting Intelligenceline.com substituted service of process by electronic mail on defendants pursuant to Code of Civil Procedure §413.30 is DENIED, without prejudice.
Code of Civil Procedure §413.30(a) states: “If no provision is made in this chapter or other law for the service of summons, or if a plaintiff, despite exercising reasonable diligence, has been unable to effect service of the summons by any of the methods authorized under this chapter, the court in which the action is pending may, upon motion, direct that summons be served in a manner that is reasonably calculated to give actual notice to the party to be served, including by electronic mail or other electronic technology, and that proof of such service be made as prescribed by the court. (2) A plaintiff seeking to establish reasonable diligence under this section shall set forth facts detailing all attempts to serve the defendant by each of the methods prescribed by statute, including facts demonstrating why each method was unsuccessful at every address or location where the defendant is likely to be found.”
Here, the motion is supported by a single declaration of David Gonzalez, an invstigator at Affirm Investigative Solutions, LLC. He states that he did not find any “reliable, actionable contact information identifying the individuals or entities operating or controlling the subject websites.” (Gonzalez Decl. ¶5) This declaration falls well short of the required showing of reasonable diligence. Although the declaration refers to the minclaw.com website, it is not explained how this is relevant to this motion.
There is no evidence of the attempts made to serve the defendants by each of the methods prescribed by statute. Also, while the motion refers to various efforts to locate the defendants, not only are those arguments significantly lacking in factual detail, attorney argument is not admissible evidence. “Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” (Rule 3.1306(a).)