Department 30, Spring Street Courthouse

July 26, 2022

22STCV11207

Motion to Be Relieved as Counsel filed by Counsel Henry John Matusek II., Counsel to Plaintiff Lisette Palacios.

The motion is continued so that the deficiencies noted below may be corrected.

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

Corrected pleading must be filed at least five court days in advance of the continued hearing.

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

Background

On April 1, 2022, Plaintiffs Lisette Palacios and the Estate of Nicholas Perez filed their complaint for damages, wrongful death, dependent adult abuse, and negligent hiring and supervision against Defendants Haynes Family of Programs, Inc. and Does 1 through 25.

On July 1, 2022, Plaintiff Lisette Palacios’s (“Plaintiff Palacios”) Counsel, Attorney Henry John Matusek II (“Counsel”) filed his Motion to Be Relieved as Counsel. Plaintiff does not oppose this motion.

 

 

Counsel seeks a court order relieving him as counsel of record for Plaintiff Lisette Palacios on the grounds that representation has been rendered unreasonably difficult by the client. Counsel argues the attorney-client relationship has deteriorated and continued representation is not possible.

 

California Rules of Court (“CRC”), rule 3.1362 (Motion to Be Relieved as Counsel) requires: (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP § 284(2) is brought instead of filing a consent under CCP § 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion, motion, and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). 

 

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client, and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) Withdrawal is generally permitted unless there is a compelling reason to continue the representation. (Heple v. Kluge (1951) 104 Cal.App.2d 461, 462.) There is a compelling reason when the withdrawal would prejudice the client, the other parties in the action, or a third party. (People v. Prince (1968) 268 Cal.App.2d 398, 406; Linn v. Superior Court in and for Los Angeles County (1926) 79 Cal.App. 721, 725.) 

Counsel seeks to be relieved as counsel for Plaintiff Palacios.

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 has not met the service requirements set forth in Cal. Rules of Court, rule 3.1362, subd. (d). When the client is served via mail, Cal. Rules of Court, rule 3.1362, subd. (d)(1) provides that the motion must be accompanied by a declaration stating facts showing either (A) the ser vice address is the current residence or business address of the client; or (B) 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 to be relieved.

Here, Counsel served the motion via mail to 14426 Beckner St., Unit B, La Puente, CA 91744. His declaration states that he confirmed within the past 30 days that the address is current because the address was listed on Plaintiff Palacios’s driver’s license. However, there are no facts in the declaration to support that the address on Plaintiff Palacios’s driver’s license was current. Thus, Counsel failed to provide facts showing he confirmed that Plaintiff Palacios’s address was current within the 30 days before he filed his motion.

Counsel also states he served the motion on Plaintiff Palacios over email.  Cal. Rules of Court, rule 3.1362, subd. (d)(2) provides that when notice is served on the client by electronic service under Code of Civ. Proc. section 1010.6 and Cal. Rules of Court, rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client’s current electronic service address. Code Civ. Proc. section 1010.6 requires express consent to electronic service from the person being served.

Here, Counsel’s declaration does not state the email address he used to serve notice on Plaintiff Palacios, nor does it state the email address is her current email address. Moreover, Counsel has not provided evidence that he obtained Plaintiff Palacios’s express consent to receive electronic service.

Counsel’s motion is continued until he can correct the deficiencies described above.