Judge: David B. Gelfound, Case: 23CHCV00243, Date: 2024-04-23 Tentative Ruling

Case Number: 23CHCV00243    Hearing Date: April 23, 2024    Dept: F49

Dept. F49 

Date: 2/27/24

Case Name: Destiny Leon

v. Jimmy Deans, James

Axotis, Isahi Sierra, and

Does 1-100

Case # 23CHCV00243

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO BE RELIEVED AS COUNSEL

Motion filed: 3/6/24

MOVING PARTY: Defendant’s counsel Sue M. Bendavid (“Counsel”) 

RESPONDING PARTY: None 

NOTICE: ok 

RELIEF REQUESTED: An order relieving counsel Sue M. Bendavid as counsel for Defendant Jimmy Deans.

TENTATIVE RULING: The motion is DENIED.

BACKGROUND

On January 30, 2023, Plaintiff Destiny Leon filed this action against Defendants Jimmy Deans, James Axotis, Ishi Sierra, and Does 1 through 100, alleging the following causes of action: (1) Sexual Harassment – Hostile Work Environment in Violation of FEHA, (2) Discrimination in Violation of FEHA, (3) Failure to Prevent Harassment and Discrimination in Violation of FEHA, (4) Negligent Supervision and Retention, and (5) Wrongful Constructive Termination in Violation of Public Policy. Subsequently, on February 7, 2024, Defendants Jimmy Deans and Isahi Sierra filed their Answer to the Complaint.

On March 6, 2024, Counsel filed the instant Motion to be Relieved as Counsel (the “Motion”).

No opposition papers have been received by the Court.

ANALYSIS

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc. § 284, subd. (2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).)

            In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either:

            (A) The service address is the current residence or business address of the client; or

(B) The service address is 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, subd. (1)(A) & (2).)

Here, Plaintiff’s Counsel has filed Judicial Counsel Forms MC-051 and MC-052. Counsel has provided a declaration stating that the Motion is necessitated by a “breakdown in attorney-client relationship” and “breakdown in communication.” (MC-052, ¶ 1.)

On the MC-052 (Declaration), it indicates that Counsel has confirmed Defendant’s last known address within the last 30 days by mail, return receipt requested. (MC-052, ¶ 3b.(1)(a).)

However, Counsel failed to lodge Judicial Counsel Form MC-053 (Proposed Order) with the Court, thus not complying with California Rules of Court rule 3.1362(e).

Therefore, the Court DENIES Counsel’s Motion to be Relieved as Counsel.

CONCLUSION

Defendant Jimmy Deans’s Counsel Sue M. Bendavid’s Motion to be Relieved as Counsel is DENIED.

Counsel is ordered to give notice.