Judge: Anne Hwang, Case: 23STCV11156, Date: 2024-10-14 Tentative Ruling

Case Number: 23STCV11156    Hearing Date: October 14, 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

BACKGROUND

            On May 17, 2023, Plaintiff Stefany Gabriela Barrera Malanco (“Plaintiff” or “Malanco”) filed an action against Defendant Jacqueline Ruiz (“Ruiz”) and Does 1 through 50 for (1) negligence, (2) strict liability for dangerous propensity, (3) strict liability based on Civil Code section 3342, and (4) negligence per se.  Plaintiff alleges that, while trying to rescue her cat from being attacked by Defendant’s dogs, she was also violently attacked by the dogs and sustained significant physical and emotional injuries.

            On July 14, 2023, Defendant filed an Answer.

            On September 24, 2024, counsel Valentine Aghakhani (“Aghakhani”) filed the instant Motion to Be Relieved as Counsel (“Motion”) as to Plaintiff Malanco.  No opposition has been filed.

LEGAL STANDARD

¿Code of Civil Procedure section 284 states that “the attorney in an action…may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney…; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”  (Code Civ. Proc., § 284; Cal. Rules of Court, rule 3.1362.)  The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably.  (See Mandell v. Superior (1977) 67 Cal.App.3d 1, 4; Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.)

In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court, rule 3.1362.  The motion must be made using mandatory forms:

1.     Notice of Motion and Motion to be Relieved as Counsel directed to the client – (MC-051);

2.     Declaration “stating in general terms and without compromising the confidentiality of the attorney-client relationship” the reasons that the motion was brought (MC-052);

3.     Proposed Order (MC-053).

(Ibid.)  The forms must be timely filed and served on all parties who have appeared in the case.  (Ibid.)  If these documents are served on the client by mail, there must be a declaration stating either that the address where client was served is “the current residence or business address of the client” or “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 efforts to do so within 30 days before the filing of the motion to be relieved.”  (Cal. Rules of Court, rule 3.1362(d)(1).)

DISCUSSION

Counsel Aghakhani 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 has filed the instant Motion on the grounds that she has made extensive and reasonable efforts to contact Plaintiff via phone, text message, physical mail, and electronic mail from April 2023 to September 2024, as set forth in the declaration.  (MC-052 at ¶ 2, Exs. 1-12.)  Plaintiff has not responded to counsel’s communication attempts and has not signed the Substitution of Attorney form sent to her.  (Ibid.)

However, counsel has not timely served Plaintiff or Defendant with the moving papers.  Code of Civil Procedure section 1005, subdivision (b), requires moving papers to be served at least 16 court days before a hearing, with an additional five calendar days added when notice is provided by mail within the State of California.  (Code Civ. Proc. § 1005, subd. (b).)  Here, the moving papers were served on September 24, 2024, less than 16 court days before the scheduled hearing on October 14, 2024.

For this reason, counsel Aghakhani’s Motion is denied.

CONCLUSION AND ORDER

Counsel Valentine Aghakhani’s Motion to Be Relieved as Counsel as to Plaintiff Stefany Gabriela Barrera Malanco is DENIED without prejudice.