Plaintiff's Continued Ex Parte Application to Enter Judgment Pursuant to Settlement or Shorten Time as to Motion to Enter Judgment
Authority and Analysis Code of Civil Procedure section 284 provides that "[t]he attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [or] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other."
California Rule of Court 3.1362(a) requires that the "notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051)." As noted above, Counsel has complied with California Rule of Court 3.1362(a) by submitting the notice and motion on MC-051 and by directing the notice and motion to all parties.
California Rule of Court 3.1362 (c) further mandates that: "The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel--Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).
Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a "Substitution of Attorney" from the client as required under CCP Sec.284(1) and that the client refused to so stipulate. Here, the declaration is properly made on form MC-052, but is silent as to an attempt to first secure a "Substitution of Attorney" and that the client refused to so stipulate. Absent this information, the Court cannot grant the motion.
Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel's declaration must note the service made. Here, while there isa proof of service indicating service by mail, the information required under Section 3 of the MC-052 form is silent as to confirmation of the service address.
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The Court denies, without prejudice, Defendant's Counsel's Motion to Withdraw as to Defendant based upon the lack of compliance with California Rule of Court 3.1362(c) with respect to attempting to obtain a "Substitution of Attorney" prior to moving to withdraw and reflecting such efforts in the declaration, as well as a failure to complete the MC-052 form as to service.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.
Re: Pimentel, Juliana et al vs. FCA US LLC, a Delaware Limited Liability Company et al Case No.: PCU318741 Date: June 23, 2026 Time: 8:30 A.M. Dept. 19-The Honorable Russell P. Burke Motion: Plaintiff's Continued Ex Parte Application to Enter Judgment Pursuant to Settlement or Shorten Time as to Motion to Enter Judgment Tentative Ruling: To deny the application
Facts In this matter, the parties resolved the underlying Song Beverly action on or about January 30, 2026 as follows: "In sole consideration of the tender of good and negotiable funds in the amount of $35,000, made by FCA US LLC, we, Juliana Pimentel and Julio Pimentel Cazares, release and discharge FCA US LLC, their representatives, employees, agents, directors, members, shareholders, stakeholders, attorneys, assigns, assignees, acquiring entities, predecessors, successors, direct and indirect parent entities and subsidiaries, affiliated entities, Porterville Chrysler Jeep Dodge Ram, and any other authorized FCA US LLC dealership from all known and unknown claims, damages, costs, attorneys' fees, expenses and loss of services related to my 2023 Jeep Cherokee Overland, VIN: 1C4RJJDG2P8734037 ("Subject Vehicle") through and including the execution date of this release.
This Release shall not limit or modify the terms of any warranty or service contract applicable to the Subject Vehicle. The transaction will be completed within 60 days from receipt of this executed settlement agreement and release."
Plaintiff, however, notes that FCA has not paid the $35,000 due under the agreement. Plaintiff has filed a motion to enforce the settlement, set for July 28, 2026. Plaintiff has filed this ex parte application to either adjudicate this motion or to shorten time to hear the motion.
In support, the application states: "Plaintiffs have been waiting for their settlement funds for an inexcusable amount of time (195 days) and there has been no explanation from Defendant's counsel as to why the funds have not been received. Every contact has gone unanswered for months EXCEPT the email after the Motion to Enforce Settlement was filed. Plaintiffs have been waiting for months for Defendant to simply cut a check - there is not even a vehicle return in this case. The delay is completely unjustified, and Defendant should not require any additional time to "investigate the status of the check" or any reason which would prevent it from overnight the check to counsel.
Defendant has provided no reason why the payment was not made within the 60-day period as it agreed to. Plaintiffs have continued to make payments on a defective vehicle that they wish to trade in but cannot do so until the funds are received to purchase a new vehicle."
At the initial hearing on this matter on May 28, 2026, the Court continued this ex parte application to this date.
Authority and Analysis California Rule of Court, rule 3.1202, as to contents of an ex parte application requires: " (c) Affirmative factual showing required An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte."
To start, the declaration of Plaintiff's counsel provides information as to the delay in payment based on the agreement, the lack of communication, the promise of receipt of settlement funds by June 8, 2026, but fails to provide any affirmative factual showing as to irreparable harm, immediate danger or any other statutory basis for hearing this motion on shortened time or on an ex parte basis.
Even if the Court were to consider that the delay in receipt of settlement funds have caused Plaintiffs to continue to make payments and delayed a trade in, that information is not present in a declaration. (See Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 556 ["the arguments of counsel in a motion are not a substitute for evidence ..."; Walter v. National Indem. Co. (1970) 3 Cal.App.3d 630, 633 ["[C]ounsel for appellant attempts to treat his statements in the memorandum [a]s evidence. This cannot be done."].)
That Defendant has not complied with the settlement agreement in this matter is a basis to enter judgment based on the agreement under Code of Civil Procedure section 664.6, but is not a basis to shorten time or hear such a motion on an ex parte basis. The Court sees no exigency, irreparable harm or immediate danger which would support entering judgment based on the settlement agreement under Code of Civil Procedure section 664.6 or to shorten time to hear this motion sooner than July 28, 2026. Therefore, the Court denies the motion.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter