Judge: Edward B. Moreton, Jr., Case: 23SMCV01028, Date: 2023-07-21 Tentative Ruling
Case Number: 23SMCV01028 Hearing Date: July 21, 2023 Dept: 205
|
KARMEN BUTTKE, by and through her
Successor in Interest, Nicole Miller, Plaintiff, v. EVA CARE GROUP, LLC; GREENFIELD
CARE CENTER OF FILLMORE, LLC; JENG HORNG CHEN and DOES 1 through 250,
inclusive, Defendants. |
Case No.:
23SMCV01028 Hearing Date: 7/21/23 Trial Date:
None Set [TENTATIVE] RULING RE: MOTION TO BE RELIEVED
AS COUNSEL |
Background
On March 8,
2023, Plaintiff KARMEN BUTTKE, by and through her Successor in Interest, Nicole
Miller (“Plaintiff”) filed this action against Defendants EVA CARE GROUP, LLC;
GREENFIELD CARE CENTER OF FILLMORE, LLC; JENG HORNG CHEN and DOES 1 through
250, inclusive, alleging two causes of action for elder abuse and negligence.
On June 16,
2023, Stephen M. Garcia of Garcia & Artigliere (“Counsel”) filed the
instant motion to be relieved as counsel for Plaintiff. No opposition has been
filed.
Motion to be Relieved as Counsel
Legal Standard
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).)
Analysis
The Court notes that Counsel has filed
forms MC-051, MC-052, and MC-053 per California Rules of Court, Rule
3.1362. (CRC, Rule 3.1362.) The basis for the motion is irreconcilable
differences that have arisen between the parties regarding the representation
in this matter plus Plaintiff’s apparent failure/refusal to consent to
Counsel’s request to be relieved as counsel. This is a valid reason for withdrawal. (See
Rules Prof. Conduct, Rule 1.16.)
The motion is unopposed.
The Court further notes no trial is currently scheduled. Therefore, there will
be no prejudice as a result of the granting of this motion. Accordingly, the
Court will grant the motion, conditioned upon Counsel’s filing of a proof of
service of the final order.
Conclusion
The Court GRANTS
the motion, conditioned upon Counsel’s filing of a proof of service of the
final order.
Counsel to
give notice.
Dated: July 21, 2023
__________________________________________
Edward B. Moreton, Jr.
Judge of the Superior Court