Judge Jill Feeney, Case 21STCV19979 2023-04-10 Tentative Ruling

Department 30, Spring Street Courthouse

Motions to be Relieved as Counsel filed by Mitchell F. Ducey and Terry L. Masserman, counsel for Defendants Francisco Rivas and Sandra Amador

The motion is continued to 05/19/2023 at 1:30 p.m.

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

At least five court days in advance of the continued hearing date, Counsel must file amended MC-053s with the following corrections: (1) box 5a must be checked; (2) Item 7: the FSC must be listed (and should be the only event listed); (3) Item 8: should be blank; and (3) Item 9: the trial must be listed with the correct time, which is 8:30 a.m.

Moving party to provide notice, including to Defendants, 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.

On November 21, 2022, Mitchell F. Ducey and Terry L. Masserman, counsel for Defendants Francisco Rivas and Sandra Amador, filed the instant motions to be relieved as counsel.

On January 18, 2023, the Court continued the hearing on Counsel’s motions to be relieved as counsel to allow Counsel to correct deficiencies with the motions.

Mitchell F. Ducey and Terry L. Masserman, counsel for Defendants Francisco Rivas and Sandra Amador, move to be relieved as counsel, citing a breakdown in the attorney-client relationship. Counsel have not been able to contact Rivas or Amador.

“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 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 Defendants by mail at their last known address. (MC-052 Item #3a.) Counsel were unable to confirm that the address was current and made efforts to confirm the address by calling Defendants’ last known telephone numbers and contacting their son, Gerson Rivas, by email and telephone. (MC-052 Item 3(b).)

Counsel further notes that mailings to the Defendants’ address have not been returned by the post office.

Defendants will not be prejudiced if Counsels’ motions are 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 Defendants to engage new counsel before trial and/or request a continuance. The Court is satisfied that Counsel have a compelling reason to withdraw as counsel.