Judge: Anne Richardson, Case: 21STCV09417, Date: 2023-02-15 Tentative Ruling

Case Number: 21STCV09417    Hearing Date: February 15, 2023    Dept: 40

The instant Motion to be Relieved as Counsel was brought by Plaintiff’s Counsel, Adam Mike Montes, Jr., who seeks to withdraw from his representation of Plaintiff because of extreme difficulty in continuing representation.

Legal Standard

An attorney in an action may withdraw at any time before or after judgment or final determination upon the order of the court, upon the application of either client or attorney, after notice from one to the other. (CCP § 284(2)).  CRC Rule 3.1362 requires:

1. Notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel Civil form (MC-051));

2. A declaration stating in general terms, and without compromising the confidentiality of the attorney client relationship, why a motion under CCP §284(2), is brought instead of filing a consent under CCP §284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel Civil form (MC-052));

3. Service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and

4. The proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel Civil form (MC-053)).

The motion should be denied if withdrawal would prejudice the client.  (Rules Prof. Conduct, Rule 3-700(A)(2); see also 1 Witkin Cal. Pro., Attorneys §72 (2008).)  The motion should also be denied if it will cause undue delay in the proceeding or cause injustice.  (Mandell v. Superior Court, (1977) 67 Cal.App.3d 1, 4.)  The determination whether to grant or deny an attorney’s motion to withdraw as counsel of record lies within the sound discretion of the trial court, having in mind whether such withdrawal might work an injustice in the handling of the case.  (Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.)  A breakdown in the attorney-client relationship is grounds for withdrawal.  (Estate of Falco (1987) 188 Cal.App.3d 1004, 1014.) An attorney is not limited to withdrawing from a case for cause and may withdraw whenever withdrawal can be accomplished without undue prejudice to the client.  (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 914.)

Motion

The Court DENIES WITHOUT PREJUDICE the Motion for failure to satisfy a procedural requirement. 

Here, the Motion procedurally conforms with California Rules of Court, rule 3.1362, subdivisions (a), (c), and (d) because Plaintiff’s Counsel properly provided a (1) Civil form MC-051 (Motion) on 1/17/23; (2) Civil form MC-052 (Declaration) on 1/17/23; and (3) Civil form MC-053 (Proposed Order) on 1/17/23.

However, Plaintiff’s Counsel failed to conform with rule 3.1362 subdivision (e) by failing to properly serve Forms MC-051, MC-052, and MC-053 by paper mail to interested parties. ¿In the 1/17/23 Proof of Service, it states the documents were mailed on May 18, 2021, which is not shortly before or after Plaintiff’s Counsel filed this instant motion.

Considering the other requirements, the Court finds that the reason given for withdrawal is valid. Plaintiff’s Counsel claims: “The client has not met with attorney to develope [sic] a trial strategy or cooperated in the prosecution of this matter making it extreamly [sic] difficult to continue representation.” ¿(See 1/17/23 Civil form MC-052.) The Court finds this is a sufficient reason. Additionally, there appears to be no prejudice against Plaintiff since Plaintiff did not oppose the motion and the trial date is April 11, 2023.

Despite these justifications for granting the motion, the Court DENIES the instant motion for failure to comply with California Rules of Court, rule 3.1362, subdivision (e), unless the moving party is able to cure the defect with a valid and timely proof of service at or before the time of the hearing.

Conclusion

In light of the foregoing, the Court DENIES WITHOUT PREJUDICE Attorney Montes’ Motion to Be Relieved as Counsel for Plaintiff Segura.