Judge Jill Feeney, Case 21STCV19979 2023-01-18 Tentative Ruling

Department 30, Spring Street Courthouse

-Motion to Be Relieved as Counsel for Defendant Francisco Rivas

-Motion to Compel Defendant Rivas’ Responses to Plaintiff’s Form Interrogatories (Set One) and Request for Sanctions

-Motion to Compel Defendant Rivas’ Responses to Plaintiff’s Special Interrogatories (Set One) and Request for Sanctions

-Motion to Compel Defendant Rivas’ Responses to Plaintiff’s Request for Production (Set One) and Request for Sanctions

The discovery motions are denied for the reasons set forth in the January 9, 2023 minute order which is incorporated herein by reference.

Sanctions in the amount of $675 are imposed jointly and severally against Plaintiff and Plaintiff’s Counsel of Record. Sanctions are due within 20 days after the date of this order.

The motion to be relieved is continued.

The parties are ordered to appear on the date of the hearing to set a continued hearing date.

An amended MC-052 and MC-053 must be filed at least five court days in advance of the continued hearing date.

Moving parties 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 arising from a dog attack which took place in May 2019. Plaintiff Natividad Felix Jose filed her Complaint against Defendants Francisco Rivas and Sandra Amador on May 27, 2021.

Plaintiff filed the instant motions to compel Defendant Francisco Rivas’s responses to Form Interrogatories (“FROGs”), Special Interrogatories (“SROGs”), and Requests for Production (“RPDs”) on November 21, 2022.

On November 21, 2022, Mitchell F. Ducey, counsel for Defendant Francisco Rivas, filed the instant motion to be relieved as counsel.

On January 9, 2023, the Court continued the motions to compel discovery responses because Plaintiff’s Counsel called after the hearing to state that counsel had forgotten to calendar the hearing date. The tentative is the same as that issued on January 9, 2023.

MOTION TO BE RELIEVED AS COUNSEL

Mitchell F. Ducey, counsel for Defendant Francisco Rivas, moves to be relieved as counsel, citing a breakdown in the attorney-client relationship. Counsel has not been able to contact Rivas.

“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 Defendant Francisco Rivas.

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 his last known address. (MC-052 Item #3a.) However, Counsel left form MC-052 Item 3(b) blank. Counsel must fill out the form completely and indicate whether he confirmed Plaintiff’s address and how.

The MC-053 also needs to be filled out completely. Items 3, 5 and 6 are blank. Moreover Item 7 needs to be updated.

Plaintiff will not be prejudiced if Counsel’s motion is granted. The next hearing in this matter is a Final Status Conference set for July 3, 2023. Trial is set for July 17, 2023. There is sufficient time for Plaintiff to engage new counsel before trial and/or to request a continuance. The Court is satisfied that Counsel has a compelling reason to withdraw as counsel.