Department 30, Spring Street Courthouse

August 16, 2022

22STCV09990

Motion to Be Relieved as Counsel filed by Joseph H. Elias, Plaintiff’s Counsel

The motion is continued to permit Counsel time to correct the deficiencies noted below.

Corrected forms are to be filed at least five court days in advance of the continued hearing date.

The parties are to appear at the hearing to discuss a continued hearing date with the Judicial Assistant.

Moving party is ordered to provide notice.

This is an action for motor vehicle negligence and general negligence arising from a vehicle-bicycle collision which took place in September 2020. Plaintiff Marco Napoles-Fesztinger filed his Complaint against Defendant Danielle Hunter on March 22, 2022.

On July 27, 2022, Plaintiff’s Counsel, Joseph H. Elias of the Dordulian Law Group filed the instant motion to be relieved as counsel for Plaintiff Marco Napoles-Fesztinger.

Joseph H. Elias (“Counsel”) seeks to be relieved as counsel for Plaintiff. Counsel cites a breakdown in communication between Counsel and client.

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 Marco Napoles-Fesztinger. 

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 properly served Plaintiff at his last known address and confirmed his address within the past 30 days by telephone. (MC-052, Item #3(b).) Trial is set for September 19, 2023. (MC-052, Item #6.) The Court is satisfied that Counsel has a compelling reason to withdraw as counsel given the breakdown of the attorney-client communication. (MC-052, Item #2.)

There are deficiencies with Counsel’s forms that must be corrected before the Court can grant his motion. 

Item #4 on MC-052: Box 4b should be checked and the details of the FSC should be filled in.

Item #5 on Counsel’s form MC-052 and Items #7 and 8 on Counsel’s form MC-053 are blank. The forms should reflect the Final Status Conference set for September 5, 2023, as well as the OSC Re: Dismissal set for March 18, 2025.

Item #5a on form MC-053 should be checked. 

Items #3 and 6 on form MC-053 are blank.

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