Motion to Withdraw as Counsel; Defendant Kamohai's Counsel's Motion to be Relieved
Tentative Ruling: To deny the motion
Facts
In this collection matter, Plaintiff has filed a proof of service purporting substitute service on Plaintiff occurred November 3, 2025 at 4:25 pm on "Jane Doe...an individual who refused to give their name who identified themselves as the co-resident. The individual accepted service with direct delivery. The individual appeared to be a brown-haired Hispanic female contact 18-25 years of age, 5'4"-5'6" tall and weighing 120-140 lbs with glasses." The proof of service indicates the summons and complaint, and related documents, were thereafter mailed to the same address. The proof of service was completed by a registered California process server and includes a statement of due diligence as to prior attempts to personally serve Defendant.
Default was entered March 17, 2026 with default judgment in the amount of $2,585.12 entered on March 24, 2026.
On April 9, 2026, Defendant filed this motion to vacate default and default judgment pursuant to Code of Civil Procedure sections 473 and 473.5. Plaintiff declares that "Defendant was not properly served with the Summons and Complaint and did not have notice of the lawsuit in time to respond" and "Defendant was not properly served with the Summons and Complaint." No responsive pleading appears to have been lodged with this motion. No proof of service appears to have been filed as to this motion.
Authority and Analysis
The Court notes first that under Evidence Code section 647: "[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return." (Evid. Code Sec. 647.)
Under Evidence Code section 604: "[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate." (Evid. Code Sec. 604.)
Defendant's general declaration that service did not occur is insufficient to rebut the presumption afforded by the completed proof of service. As such, the Court cannot find a basis under section 473 as to mistake, inadvertence, surprise, or excusable neglect, or under section 473.5 as to lack of actual notice. Therefore, the Court denies the motion.
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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: Valadez, Brenda et al vs. DLR Management Group, Inc. Case No.: VCU310362 Date: June 1, 2026 Time: 8:30 A.M. Dept. 9-The Honorable Nathan D. Ide Motion: Motion to Withdraw as Counsel Motion: Defendant Kamohai's Counsel's Motion to be Relieved
Tentative Ruling: To grant the motion; the order will be deemed effective upon the filing with the court of proof of personal service of the order as indicated herein.
Facts
On April 10, 202 6, Defendant's Counsel D avid M. Hillings, Esq. of Clinton and Clinton filed a motion to be relieved as counsel as to Defendant Robert John Kamohai. Defendant's Counsel filed the following with respect to withdrawing: (1) MC-051 - Notice of Motion and Motion to be Relieved as Counsel; (2) MC-052 - Declaration in Support of Attorney's Motion to Be Relieved as Counsel; and (3) MC-053 - Order Granting Attorney's Motion to Be Relieved as Counsel Additionally, Defendant's Counsel has filed proof of service of these documents by mail and email.
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 Code of Civil Procedure section 284(1) and that the client refused to so stipulate.
Here, the declaration is properly made on form MC-052, as well as a further declaration attached to the Notice, and uses general terms without compromising confidentiality. The declaration indicates counsel has been unable to communicate with Defendant since November 12, 2025 and Defendant has been wholly nonresponsive to attempts to communicate since that time. As such, the Court will find the requirement of attempting to obtain a substitution of counsel from Defendant satisfied under these circumstances.
Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel's declaration must note the service made. Here, service was by mail and email on April 10, 202 6. The declaration of counsel indicates that Defendant's address was confirmed as current by private investigator.
Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Defendant's Counsel has complied with this requirement. Therefore, the Court grants Defendant's Counsel's Motion to Withdraw as to Defendant.
If no one requests oral argument, the Court is prepared to sign the order entitled "Order Granting Attorney's Motion to be Relieved as Counsel - Civil" that the moving party lodged with the Court. This order will be deemed effective upon the filing with the court of a proof of personal service of the "Order Granting Attorney's Motion to be Relieved as Counsel - Civil" as to Defendant Kamohai. The Court further directs counsel to attach to the Order an additional notice of the date, time, and Department of this court for any future hearing dates for this case as calendared.
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