Judge: Anne Hwang, Case: 23STCV20843, Date: 2024-08-22 Tentative Ruling

Case Number: 23STCV20843    Hearing Date: August 22, 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

            Plaintiff Carlos Escobar Morales’ (Plaintiff) counsel of record, Ana Sahagun, Esq./Wilshire Law Firm (Counsel), moves to be relieved as counsel for Plaintiff. Counsel contends relief is necessary because of conduct rendering the representation difficult.  

            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: “Pursuant to CPRC 1.16(b)(4) the client by other conduct renders it unreasonably difficult for attorney to carry out representation effectively. Pursuant to CPRC 1.16(b)(10) counsel believes in good faith, in proceeding before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.” (MC-052.)

            First, the proof of service does not show that Plaintiff was afforded the minimum notice period. Code of Civil Procedure section 1005 requires “written notice” of a motion including the date, time and location of the hearing on a motion. A moving party’s failure to serve the notice of motion and moving papers on a non-moving party violates the basic principles of procedural due process under the federal and state constitutions – notice and an opportunity to be heard.¿ (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428 [minimum due process requires notice and opportunity for hearing appropriate to the nature of the case]; Horn v. County of Ventura (1979) 24 Cal.3d 605, 612 [due process principles require reasonable notice and opportunity to be heard].) Under Code of Civil Procedure section 1005(b), moving papers must be served and filed at least 16 court days before the hearing, and increased by five calendar days if mailed.[1] Therefore, in this case, the moving papers needed to be mailed by July 26, 2024.

Here, the proof of service does not specify when the moving papers were mailed. (See Proof of Service, 7/20/24, at 6(b)(2).) However, it states the moving papers were served July 29, 2024.

            Therefore, because Counsel did not provide the minimum notice period, the motion to be relieved is denied on procedural grounds.  

Additionally, form MC-052, item 3b(1), states that Counsel confirmed Plaintiff’s current address by other means. However, this conflicts with Counsel’s declaration stating they were unable to confirm the address. As a result, Counsel must complete item 3b(2) and notate the various efforts Counsel took to confirm the address.

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.