Judge: Joel L. Lofton, Case: 22AHCV01004, Date: 2023-10-24 Tentative Ruling

Case Number: 22AHCV01004    Hearing Date: October 24, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     October 24, 2023                                            TRIAL DATE: No date set.

CASE:                         THOMAS ARNOT v. LEAL REAL ESTATE INVESTMENTS dba LA CHUPERIA CANTINA; AMADO LEAL

CASE NO.:                 22AHCV01004

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:               Jose Perez, counsel for Defendants Leal Real Estate Investments, LLC and Amado Leal

RESPONDING PARTY:      No response filed.

SERVICE:                              Filed September 29, 2023

RELIEF REQUESTED

             Counsel for Defendants Leal Real Estate Investments, LLC and Amdo Leal, Jose Perez (“Perez”), moves to be relieved as counsel of record for Defendants.

BACKGROUND

             This case arises out of Plaintiff Thomas Arnot’s (“Plaintiff”) claim that Defendants Leal Real Estate Investments dba La Chuperia Cantina and Amado Leal (“Defendants”) negligently operated their business causing Plaintiff to suffer harm from third-parties present at Defendants’ premises. Plaintiff filed this complaint on November 3, 2022.

TENTATIVE RULING

            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 clients and (2) proof that the clients have been properly served with notice of the next trial date have been filed with the court.

            Perez is ordered to submit a declaration or affirmatively inform the court at the hearing that Leal Real Estate Investments, LLC understands that as corporations it cannot proceed in pro per status.

            Subject to service of the proofs of service and filing of the declaration or affirmative statements at hearing, Perez’s motion to be relieved as counsel is GRANTED.

LEGAL STANDARD

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

            Perez is currently counsel of record for both Defendants. Perez provides that there has been a breakdown of attorney-client communication but also provides he cannot divulge the specifics of the issues. He also provides that he served the documents on the clients by mail at the client’s last known location, which was confirmed by telephone.

CONCLUSION

            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 clients and (2) proof that the clients have been properly served with notice of the next trial date have been filed with the court.

            Perez is ordered to submit a declaration or affirmatively inform the court at the hearing that Leal Real Estate Investments, LLC understands that as corporations it cannot proceed in pro per status.

            Subject to service of the proofs of service and filing of the declaration or affirmative statements at hearing, Perez’s motion to be relieved as counsel is GRANTED.

Dated:   October 24, 2023                                          ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court