Department 30, Spring Street Courthouse

December 29, 2022

20STCV37179

Motion to Be Relieved as Counsel filed by Rita S. Vesagas, Counsel for Plaintiff Mialyne Hipolito

The motion is granted.

The signed MC-053 is to be served on Plaintiff and all parties and proof of service must be filed within five court days after the date of this order.

This is an action for negligence arising from an incident where an employee on Defendants’ premises struck Plaintiff forcefully with a high chair. Plaintiff Mialyne Hipolito filed her Complaint against Defendant The Cheesecake Factory on September 29, 2020. 

On January 12, 2021, Defendant filed a Cross-Complaint against Roes 1-50.

On November 29, 2022, Rita S. Vesagas filed the instant motion to be relieved as counsel. 

Moving Arguments

Counsel Rita S. Vesagas seeks to be relieved as counsel for Plaintiff. Counsel cites a breakdown of the attorney-client relationship. Plaintiff’s refusal to cooperate and communicate with Counsel has made it unreasonably difficult for Counsel to represent her effectively.

Opposing Arguments

None.

“The question of granting or denying an application of an attorney to withdraw as counsel (Code Civ. Proc., § 284, subd. (2)) is one which 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.’  [Citation.]”  (People v. Prince (1968) 268 Cal.App.2d 398, 406 [internal quotations omitted].)  The court should also consider whether the attorney’s “withdrawal can be accomplished without undue prejudice to the client’s interests.”  (Ramirez v. Sturdivant (1994) 21 Cal.App.4th 904, 915.)

 

California Rules of Court, rule 3.1362 requires that the following be submitted in support of an attorney’s Motion to Be Relieved as Counsel pursuant Code of Civil Procedure section 284, subdivision (2): (1) a notice of motion and motion directed to the client (made on Notice of Motion and Motion to Be Relieved as Counsel—Civil (Judicial Council 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, subdivision (2) is brought instead of filing a consent under Code of Civil Procedure section 284, subdivision (1) (made on Declaration in Support of Attorney’s Motion to Be Relieved as Counsel—Civil (Judicial Council Form, MC-052)); (3) a proof of service evidencing service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on Order Granting Attorney’s Motion to Be Relieved as Counsel—Civil (Judicial Council Form, MC-053)).  (Cal. Rules of Court, rule 3.1362, subd. (a), (c), (d), (e).)

Counsel seeks to be relieved as counsel for Plaintiff Mialyne Hipolito. 

Counsel filed a Notice of Motion and Motion to Be Relieved as Counsel (MC-051), an Order Granting Attorney’s Motion to Be Relieved as Counsel (MC-053), and a Declaration in Support of Attorney’s Motion to Be Relieved as Counsel (MC-052) on the appropriate forms, as outlined within California Rules of Court, rule 3.1362, subdivisions (a), (c), and (e). (Cal. Rules of Court, rule 3.1362, subd. (a), (c), (e).)

Counsel served Plaintiff by mail at her last known address which she confirmed as Plaintiff’s current address by telephone 30 days before filing this motion. (MC-052 Item #3; Lau Decl., ¶4.)

Plaintiff will not be prejudiced if Counsel’s motion is granted. The next hearing in this matter is a final status conference scheduled for February 2, 2023. Trial is set for February 16, 2023. There is sufficient time for Plaintiff to engage new counsel before trial and/or request a continuance. The Court is satisfied that Counsel has a compelling reason to withdraw as counsel given the breakdown of the attorney-client relationship. (MC-052, Item #2.)

Counsel’s Motion to be Relieved as Counsel for Plaintiff Mialyne Hipolito is GRANTED.