Judge: Anne Hwang, Case: 22STCV21403, Date: 2024-11-05 Tentative Ruling

Case Number: 22STCV21403    Hearing Date: November 5, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Cruz Bernal Franco Maria de la Luz Garcia Santos (“Plaintiffs”) move to continue trial. Defendants Lobo Trucking LLC, Enrique Armando Flores, and K&R Transportation, LLC (“Defendants”) oppose and Plaintiffs reply.

BACKGROUND

            The complaint was filed on June 30, 2022 alleging injuries from a motor vehicle accident. Trial was initially set for December 28, 2023.

            Defendants’ answer was filed on November 7, 2022.

            On November 21, 2023, pursuant to stipulation, the Court continued trial and all related dates to April 18, 2024.

            On February 1, 2024, pursuant to stipulation, the Court continued trial and all related dates to October 21, 2024.

            On September 24, 2024, counsel filed substitution of attorney forms for Plaintiffs.

            At the final status conference on October 7, 2024, after the parties failed to submit their final status conference documents, the Court continued trial pursuant to oral stipulation, to November 4, 2024. The discovery/motion cut-off was closed. (Min. Order, 10/7/24.)

            The instant motion to continue was filed on October 9, 2024. On October 10, 2024, counsel filed motions to be relieved as counsel.

ANALYSIS

Legal Standard

 “Continuances are granted only on an affirmative showing of good cause requiring a continuance.”  (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)  A trial court has broad discretion in considering a request for a trial continuance.  (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)  California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial. 

“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (Cal. Rules of Court, rule 3.1332(a).)

“A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” (Cal. Rules of Court, rule 3.1332(b).)

“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:

(1)   The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2)   The unavailability of a party because of death, illness, or other excusable circumstances;

(3)   The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4)   The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(5)   The addition of a new party if:

(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case;

(6)   A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7)   A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”

(Cal. Rules of Court, rule 3.1332(c).)

“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:

(1)   The proximity of the trial date;

(2)   Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3)   The length of the continuance requested;

(4)   The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5)   The prejudice that parties or witnesses will suffer as a result of the continuance;

(6)   If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7)   The court’s calendar and the impact of granting a continuance on other pending trials;

(8)   Whether trial counsel is engaged in another trial;

(9)   Whether all parties have stipulated to a continuance;

(10)  Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11)  Any other fact or circumstance relevant to the fair determination of the motion or application.

(Cal. Rules of Court, rule 3.1332(d).)

Discussion

Plaintiff asks the Court to continue trial and all related dates from November 4, 2024 to March 4, 2025 because Plaintiffs are looking for new counsel. According to the declaration of Martin Gasparian (“Counsel”), Plaintiffs’ current counsel of record, “Plaintiffs have indicated they do not want current counsel to continue on the case and are looking to retain new counsel. This new counsel will need additional time to prepare for trial.” (Gasparian Decl. ¶ 2.) In connection with this, Plaintiffs’ counsel has filed motions to be relieved which will be heard concurrently with this motion.

In opposition, Defendants argue this case “involved a 3 mph side-scrape between two trucks” and will not require a lot of time for a new attorney to prepare. Additionally, they argue their experts are ready for trial and that to continue trial would require them to pay their experts to re-prepare in the future.

Here, Plaintiffs’ original counsel was Owili K. Eison, who filed the complaint. On September 26, 2022, Plaintiffs handling attorney was changed to Mark J. Bloom. Then, on September 24, 2024, Plaintiffs filed Substitution of Attorney forms designating Martin Gasparian as new counsel.

Counsel offers no reason why Plaintiffs want to retain new counsel shortly after he was retained.[1] In reply, counsel for Plaintiffs asserts that they elected to retain new counsel on September 30, 2024, just six days after Counsel substituted into this case. However, new counsel has not appeared in the case, despite that more than one month has passed.[2] Plaintiffs have not sufficiently explained why a belated change in counsel is warranted and fail to show good cause to continue trial for the length of time requested. Nonetheless, given counsel’s representation that he stopped working on the case, the Court would be inclined to grant a short two week continuance. The parties are ordered to meet and confer and propose a new trial date on which all witnesses will be available. Discovery and motion deadlines remain closed.

CONCLUSION AND ORDER

The Court grants in part Plaintiffs’ motion to continue trial.

Plaintiffs shall give notice of this order, and file a proof of service of such.

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            Plaintiffs Cruz Bernal Franco and Maria de la Luz Garcia Santos’ (Plaintiffs) counsel of record, Martin Gasparian (Counsel), moves to be relieved as counsel for Plaintiffs. Counsel contends relief is necessary because there has been a breakdown in the attorney-client relationship.

            No opposition has been filed for this motion.

LEGAL STANDARD

To be granted relief as counsel, counsel must comply with California Rules of Court (CRC) 3.1362. Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct (CRPC) 3.700 and are subject to discipline for failure to do so. CRPC 3.700(B) lists various grounds for mandatory withdrawal. 

An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197; People v. Prince (1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice upon a third party. (Hodcarriers, Bldg. and Common Laborers Local Union No. 89 v. Miller (1966) 243 Cal.App.2d 391.)

The rules have been liberally construed to protect clients. (Vann v. Shilleh, supra, 54 Cal.App.3d 192.) An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests; however, an attorney “shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.” (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the client’s case. (CRPC 3.700(A)(2); Vann v. Shilleh, supra.)

DISCUSSION

            Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 as required.  (Cal Rules of Court, rule 3.1362.)  Counsel states the instant motion is filed for the following reason: “There has been an irreparable breakdown of the working relationship between counsel and client.” (MC-052.) Counsel has provided insufficient information for the Court to grant the motion, particularly in light of the trial date and the apparent lack of available counsel to substitute into the case.

            Counsel has not shown proof of service of the moving papers (MC-051, MC-052, MC-053) on all parties who have appeared in the action, and Plaintiffs. (See Cal. Rules of Court, rule 3.1362(d).) While Counsel asserts Plaintiffs were personally served, there is no proof of service filed, and no proof of service of the changed hearing date to November 1, 2024.[3]

Accordingly, the Court DENIES the motion to relieve counsel.  

Counsel shall provide notice of the Court’s ruling and file proofs of service of such.