Judge: Daniel M. Crowley, Case: 21STCV18585, Date: 2022-10-11 Tentative Ruling

Case Number: 21STCV18585    Hearing Date: October 11, 2022    Dept: 28

Defendant Graceful Senescence Adult Day’s Motion for Dismissal; Plaintiff Rose Martinez’s Motion to Continue Trial; Plaintiff Rose Martinez’s Counsel Gary A. Dordick and Elizabeth A. Hernandez’s Motion to Be Relieved as Counsel

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On May 18, 2021, Plaintiff Rose Martinez (“Plaintiff”) filed this action against Defendant Graceful Senescence Adult Day dba Forever Caring Adult Day Health Care (“Defendant”) for general negligence.

On October 19, 2021, Defendant filed an answer.

On September 20, 2022, Defendant filed a Motion for Dismissal to be heard on October 11, 2022. On September 28, 2022, Plaintiff filed an opposition. On October 4, 2022, Defendant filed a reply.

On September 15, 2022, Plaintiff filed a Motion to Continue Trial to be heard on October 11, 2022. On September 27, 2022, Defendant filed an opposition.

On September 14, 2022, Plaintiffs’ counsel, Gary A. Dordick and Elizabeth A. Hernandez, filed a Motion to be Relieved as Counsel to be heard on October 11, 2022. On September 27, 2022, Defendant filed an opposition.

Trial is currently set for November 30, 2022.

PARTY’S REQUEST

Defendant requests the Court dismiss this action, without prejudice.

Plaintiff requests the Court deny the motion.

Plaintiff requests the Court continue trial to March 27, 2023.

Defendant requests the Court deny the motion.

Plaintiff’s counsel, Gary A. Dordick and Elizabeth A. Hernandez, request to be relieved as counsel.

Defendant requests the Court deny the motion.

LEGAL STANDARD

“Generally, when a client dies, the attorney-client relationship terminates, and thereafter, the attorney must obtain authorization from the decedent’s personal representative in order to pursue the interests of the decedent.”]; Bec Constr. Corp. v. Gonzalez (1980) 383 So. 2d 1093, 1094.

CRC rule 3.1332(b) outlines that “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.”

Under CRC 3.1332(c), The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served. CRC 3.1332(d).

California Rule of Court rule 3.1362 (Motion to Be Relieved as Counsel) 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 Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 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 court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client, and it does not disrupt the orderly process of justice. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

DISCUSSION

Motion to Dismiss

Defendant requests the Court dismiss this action, without prejudice, as the Plaintiff to this action died on May 9, 2022. Since then, there have been no steps to obtain a successor-in-interest to substitute into this action. Plaintiff’s counsel argues that they have recently learned of a potential successor in interest and plan to substitute said successor in place of Plaintiff. Given the existence of a successor in interest and relative closeness to Plaintiff’s passing, the Court denies the motion.

Motion to Continue Trial

Plaintiff requests the Court continue trial to allow Plaintiff time to substitute the successor in interest. There have been no prior to continuances in this case. Defendant requests the Court deny the motion, as the Court does not have jurisdiction to grant it, as Plaintiff is deceased. The Court disagrees; while it is true that litigation does not automatically transfer to a new successor-in-interest, Plaintiff’s counsel has represented that there is a successor-in-interest who would like to continue the litigation on behalf of Plaintiff. Plaintiff’s counsel must be given a reasonable amount of time for this process to occur. The Court grants this motion to give Plaintiff adequate time to complete this process.

Relieved as Counsel

Plaintiff’s counsel did not submit a completed packet to be relieved as counsel. A motion to be relieved as counsel must contain a completed MC-051, MC-052 and MC-053 form. Counsel only submitted a MC-052 form, with no indication of service. In addition, counsel has indicated that they are currently working to substitute in Plaintiff’s successor-in-interest. As counsel has represented that they are undertaking this process, the Court will not grant a motion to be relieved as counsel until counsel either completes this process or indicates that the successor-in-interest is no longer interested in taking on this case.

CONCLUSION

Defendant Graceful Senescence Adult Day’s Motion for Dismissal is DENIED.

Plaintiff Rose Martinez’s Motion to Continue Trial is GRANTED. Trial is continued to May 24, 2023, at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The Final Status Conference is May 10, 2023, at 10:00 a.m. in Department 28 of the Spring Street Courthouse. All discovery and related dates are set to trail the new trial date.

Plaintiff Rose Martinez’s Counsel Gary A. Dordick and Elizabeth A. Hernandez’s Motion to Be Relieved as Counsel is DENIED.