Judge Jill Feeney, Case 21STCV02469 2022-12-23 Tentative Ruling

Department 30, Spring Street Courthouse

Motion to Be Relieved as Counsel for Plaintiff Kathy Thomas filed by Vanessa Fantasia

The matter is continued to enable Counsel to file a corrected MC-053.

The parties are ordered to appearing at the hearing to set a continued hearing date.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

This is an action for negligence and premises liability arising from a slip and fall incident which took place in February 2019. Plaintiff Kathy Thomas filed her Complaint against Defendant Norms Restaurants, LLC on January 21, 2021.

On November 21, 2022, Vanessa Fantasia, Counsel for Plaintiff Kathy Thomas, filed the instant motion to be relieved as counsel for Plaintiff.

Vanessa Fantasia seeks to be relieved as counsel for Plaintiff. Counsel explains that after Plaintiff passed away, her son agreed to be a successor in interest. Counsel then lost contact with Plaintiff’s son.

“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 Kathy Thomas.

Counsel filed a Notice of Motion and Motion to Be Relieved as Counsel (MC-051), Declaration in Support of Attorney’s Motion to Be Relieved as Counsel (MC-052), and Proposed Order Granting Attorney’s Motion to Be Relieved as Counsel (MC-053) on all 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’s son at his last known address. (MC-052, Item #3(a).) Counsel was unable to confirm that his address was current and made reasonable efforts to confirm the address by mailing the motion papers with return receipt requested, calling his last known telephone number, and running a TLO skip trace search. (MC-052, Item #3(b)(2).) However, the address listed on MC-053 is the deceased Plaintiff’s address. Since Plaintiff’s son is her successor in interest, the MC-053 must show his address and phone number.

The next hearing on this matter is an OSC Re: Dismissal for Failure to File Proof of Service of Summons and Complaint set for April 12, 2023. (MC-052, Item #4.) Trial has not been set. (MC-052, Item #6.) Counsel properly noted the remaining hearings in this case. (MC-052 Item #5; MC-053 Items #7, 8.) There is sufficient time for Plaintiff’s son to engage new counsel and/or to request a continuance. The Court is satisfied that Counsel has a compelling reason to withdraw as counsel given the breakdown of communication with Plaintiff’s son. (MC-052, Item #2.)

Counsel Vanessa Fantasia’s Motion to be Relieved as Counsel for Plaintiff Kathy Thomas is CONTINUED until Counsel provides Plaintiff’s son’s address and phone number on Form MC-053.