Judge: Jill Feeney, Case: 21STCV45719, Date: 2022-08-08 Tentative Ruling
Case Number: 21STCV45719 Hearing Date: August 8, 2022 Dept: 30
Department 30, Spring Street Courthouse
August 8, 2022
21STCV45719
Motion to be Relieved as Counsel for Plaintiff filed by Brett Yorke, Esq.
DECISION
The matter is continued to permit counsel to correct the deficiencies identified.
The parties are ordered to appear at the hearing to discuss a continued hearing date with the Judicial Assistant.
Corrected document must be filed at least five court days in advance of the continued hearing date.
The deficiencies that must be corrected are as follows: (1) the MC-051, MC-052 and MC-053 must be separately filed (not filed as one document as they were on 7/8/2022); (2) the Department 30 Spring Street address must be provided for every future hearing and should be listed in the caption as well; and (3) the December 11, 2024 Order to Show Cause re: Dismissal should be removed.
Moving party to provide notice, including on the Client, and to file proof of service of such notice within five court days after the date of this order.
Background
This action arises from a trip and fall incident that occurred on March 1, 2021.
On December 15, 2021, Plaintiff Margoth Marroquin filed a complaint against Defendant Victory Boulevard Properties, LLC for premises liability.
On May 19, 2022, Plaintiff’s counsel, Brett Yorke, Esq., filed a motion to be relieved as counsel. No opposition has been filed.
Summary
Moving Arguments
Counsel seeks a court order relieving them as counsel of record for Plaintiff on grounds that there has been an irreconcilable breakdown of the attorney-client relationship.
Legal Standard
CCP section 284 provides that upon the order of the court, an attorney in an action or special proceeding may be changed at any time before or after judgment of final determination upon the application of the client or attorney, after notice from one to the other. (Code Civ. Proc., §284.) Whether the court should grant or deny an attorney’s request to be relieved as counsel is within the discretion of the court, as long as the withdrawal does not “work an injustice in the handling of the case.” (Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.) Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be permitted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.)
California Rules of Court Rule 3.1362 requires motions to be relieved as counsel pursuant to CCP section 284(2) be made on Judicial Council Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362.) Furthermore, the requisite forms must be served on the client and all other parties who have appeared in the case. (Id., rule 3.1362(d).) If the client is served by mail, there must be a declaration showing confirmation of the service address within the past 30 days or that 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. (Id.) Additionally, CCP section 1011(b) applies if service is by mail. (Id.)
Discussion
On June 24, 2022, the Court found counsel had failed to set forth information regarding the May 31, 2023 Final Status Conference and December 11, 2024 Order to Show Cause Re: Dismissal in the declaration and the proposed order granting the motion, as well as the time and place for the June 14, 2023 trial date. The Court further found counsel had failed to check the box in item 5a of the proposed order and set forth Plaintiff’s telephone number in item 6 of the proposed order. The Court thus continued the hearing on the motion to allow counsel to file corrected papers. Counsel was also ordered to provide notice and file proof of service of such notice. The notice was to be served on Plaintiff also.
Counsel filed a notice of ruling on June 24, 2022, indicating the hearing on the motion was continued to August 8, 2022. The attached proof of service shows that the notice of ruling was served on Defendant’s counsel. There are no indications the notice of ruling was served on Plaintiff.
However, counsel filed amended moving papers on July 8, 2022, indicating a hearing date of August 8, 2022. These moving papers were served on Defendant’s counsel, as well as Plaintiff. Based on this, the Court finds Plaintiff had notice of the August 8, 2022 hearing date, despite not being served with the notice of ruling. The Court will thus discuss the merits of the amended motion filed on July 8, 2022.
The amended moving papers filed on July 8, 2022 correct most of the issues identified in the June 24, 2022 court order. However, while counsel has indicated each of the future hearing dates are set in Department 30 of the Spring Street Courthouse, counsel has failed to set forth the address of the Spring Street Courthouse. Including the address is especially important when the caption of the moving papers set forth the address for Stanley Mosk Courthouse instead of Spring Street Courthouse.
The Court notes that the December 11, 2024 Order to Show Cause re: Dismissal has since been vacated. There is thus no need to include this as an additional hearing in the amended declaration and proposed order.
