Judge Jill Feeney, Case 22STCV11207 2022-08-19 Tentative Ruling

Counsel is ordered to serve the signed MC-053 on Plaintiff and to file proof of such service within five court days after the date of this order. The document should be served both by mail and electronically.

The
Court's Ruling and Attorney's relief as Counsel of record for client is not
effective until Proof of Service of the Order signed by the Court upon the
client is filed in this action. Until
then, counsel continues to be counsel of record. Cal. Rules of Court 3.1362(e).

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 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 service 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 is 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. California 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 submitted a new MC-052 that reflects Counsel served Plaintiff electronically to lisette.palacios23@gmail.com. Counsel attaches email correspondence with Plaintiff regarding this motion and new proof of service which includes Plaintiff’s email address. Because Plaintiff responded to Counsel’s email, appeared at the last hearing on this motion, and was again served with the papers in this motion, Plaintiff is on notice of this motion.