Judge: Joel L. Lofton, Case: 22AHCV00245, Date: 2022-10-20 Tentative Ruling

Case Number: 22AHCV00245    Hearing Date: October 20, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     October 20, 2022                                TRIAL DATE:  No date set.

CASE:                         JEREMIAS ALEXANDER LARA, an individual; PASTORA ALICIA LARA, an individual; v. YUMI E. HERNANDEZ, an individual; ALEJANDRO HERNANDEZ, an individual; DLP BROTHERS, INC., a California Corporation; JOSE DE LA PAZ, an individual; and DOES 1 through 50, inclusive.

CASE NO.:                 22AHCV00245

DEMURRER

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:              Demurrer filed by Defendant Yumi E. Hernandez

                                                Motion to be relieved as counsel filed by Susan Murphy, counsel for Defendant Yumi E. Hernandez.

RESPONDING PARTY:      No responses filed.

SERVICE:                             Demurrer filed June 24, 2022

                                                Motion to be relieved as counsel filed September 16, 2022

RELIEF REQUESTED

            Defendant Yumi E. Hernandez demurrers to the entirety of Plaintiff’s complaint.

            Susan Murphy moves to be relieved as counsel for Defendant Yumi E. Hernandez.

BACKGROUND

             This case arises out of the parties’ dispute over the ownership of property located at 1651 Crest Vista Drive, Monterey Park, California 91754. Plaintiffs Jeremias Alexander Lara and Pastora Alicia Lara (“Plaintiffs”) filed a first amended complaint (“FAC”) against Defendants Yumi E. Hernandez, Alejandro Hernandez, DLP Brothers, Inc., and Jose De La Paz (“Defendants”) on August 22, 2022, alleging five causes of action for (1) breach of contract, (2) constructive trust, (3) fraud, (4) quiet title, and declaratory relief.

TENTATIVE RULING

            Yumi’s demurrer to Plaintiffs’ original complaint was taken off calendar.

            Susan Murphy’s motion to be relieved as counsel is granted.

LEGAL STANDARD

Motion to be Relieved as Counsel

Code of Civil Procedure §284(1) allows for a change or substitution of attorney “[u]pon the consent of both client and attorney, filed with the clerk, or entered upon the minutes.” If both parties do not consent to a substitution of attorney, Code of Civ. Proc. §284(2) allows for a substitution “[u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” California Rules of Court Rule 3.1362 sets forth procedures for relieving counsel without the mutual consent of both parties.

Under California Rules of Court Rule 3.1362, an attorney seeking to withdraw by motion rather than by consent of the client, as here, is required to make that motion using approved Judicial Council forms. The motion also requires 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(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).” (Cal. Rules of Ct., Rule 3.1362(c).)  Judicial Council form MC-052, the attorney’s declaration, requires that the client be provided no less than five days’ notice before hearing on the motion.  A proposed order prepared on form MC-053 must also be lodged with the court with the moving papers.

            California Rules of Court Rule 3.1362 subd. (d) also requires that the motion, notice of motion, the declaration, and the proposed order must be served on the client and all other parties who have appeared in the case. The notice served on the client by mail must be accompanied by a declaration stating facts that show that either the service address is current or “that [t]he 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.” (California Rules of Court Rule 3.1362 subd. (d)).

The Court of Appeals has recognized, “A lawyer violates his or her ethical mandate by abandoning a client [citation], or by withdrawing at a critical point and thereby prejudicing the client’s case.  [Citation.]  We are, however, aware of no authority preventing an attorney from withdrawing from a case when withdrawal can be accomplished without undue prejudice to the client’s interests.”  Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.

DISCUSSION

            Motion to be Relieved as Counsel

             Counsel Susan Murphy states that an irreparable breakdown of the attorney-client relationship has occurred, making further representation impossible. She further provides that she has served the client at the client’s last known address, and the address was confirmed by telephone.

CONCLUSION

            Susan Murphy’s motion to be relieved as counsel is granted.

The court will delay the effective date of the order relieving counsel until (1) proof of service of a copy of the signed order on the client and (2) proof that the client has been properly served with notice of the next trial date have been filed with the court.

Dated:  October 20, 2022                                ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org