Motion to be relieved as counsel
appellate court explained in Munoz v. MacMillan (2011) 195 Cal.App.4th 648: “There is no freestanding cause of action for ‘restitution’ in California. [Citation omitted.] Common law principles of restitution require a party to return a benefit when the retention of such benefit would unjustly enrich the recipient; a typical cause of action involving such remedy is ‘quasi-contract.’” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661.) Thus, there must be a valid cause of action on which to support the remedy of restitution or unjust enrichment. (See Rutherford, supra, 223 Cal.App.4th 221, 231 [construing the unjust enrichment claim to be a cause of action for quasi-contract claim seeking restitution].)
Such bases include quasi- contract, fraud, duress, conversion, or similar conduct. (Durrell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370; McBride v. Boughton (2004) 123 Cal.App.4th 379, 387-388.)
The court finds Plaintiff’s purported unjust enrichment claim to be duplicative of the quantum meruit claim and on this basis, grants the motion for summary adjudication.
New Evidence on Reply
Although new evidence is not generally permitted on reply (see, e.g., Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538), new evidence may be considered when it responds to a new issue raised on opposition. (See Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241.)
Here, Defendant’s reply papers include Plaintiff’s verified interrogatory responses. (Supp. Purcell Decl.) The court considered this new evidence, as Plaintiff’s verified discovery responses show that Plaintiff attempts to create an issue of fact by declaration that contradicts her prior discovery responses.
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Defendant to give notice.
14 Mackey vs. TENTATIVE RULING: Olejniczak For the reasons set forth below, Marc Lazo and K&L Law Group, P.C.’s motion to be relieved as counsel for Plaintiff Daniel Mackey is DENIED, without prejudice.
Rule of Court 3.1362 sets forth the requirements for a motion to be relieved as counsel: (1) a notice of motion and motion to be relieved as counsel must be directed to the client and be made on Judicial Council form MC-051; (2) the motion must be accompanied by a declaration on Judicial Council form MC-052 and state in general
terms and without compromising attorney-client confidentiality why the motion is being brought; (3) the notice of motion, motion, declaration, and the proposed order must be served on the client and all other parties who have appeared in the case; (4) if served on the client by mail, it must be accompanied by a declaration stating facts to show either: (a) the service address is the current residence or business address of the client or (b) the service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable effort to do so within 30 days before filing the motion; (5) the proposed order must be prepared on Judicial Council form MC- 053, specify all hearing dates scheduled, and lodged with the court with the moving papers; (6) after the order is signed, a copy of the order must be served on the client and all parties that have appeared in the case; and (7) 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. (Rules of Court, rule 3.1262.)
As this court previously held, Counsel failed to attest that he served the client either personally or by mail at the client’s last known address, as required by ¶ 3 of the form declaration, Form MC-052. Furthermore, the proof of service only attests to electronic service.
On 5/6/26, this court continued the motion based on these defects, and ordered Moving Counsel to file a Proof of Service at least 9 court-days prior to the next hearing showing proper service on the client and all parties. (See 5/6/26 Order [ROA 32]).
Moving Counsel failed to file the proof of service at least 9 court days prior to the continued hearing date. While Moving Counsel provided a notice of ruling of the 5/6/26 Order, the proof of service for this notice only depicts service to Defendant’s counsel, and not to the client. (See ROA 34).
Accordingly, the motion is denied without prejudice as to refiling.
Moving counsel shall give notice.
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