Judge: Katherine Chilton, Case: 19STLC02762, Date: 2023-01-11 Tentative Ruling

Case Number: 19STLC02762     Hearing Date: January 11, 2023    Dept: 25

PROCEEDINGS:      MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:   Counsel Jacob O. Partiyeli, for Plaintiff Moises Sanchez

RESP. PARTY:         None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel Jacob O. Partiyeli’s Motion to Be Relieved as Counsel as to Plaintiff Moises Sanchez is DENIED without prejudice.

SERVICE:[1]

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of January 8, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of January 8, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 20, 2019, Plaintiff Moises Sanchez (“Plaintiff”) filed an action against Defendant Sooyeol Kim (“Defendant”) for motor vehicle and general negligence arising from an accident between Plaintiff’s bicycle, on the one hand, and Defendant’s vehicle, on the other hand.

On December 10, 2020, Defendant filed a General Denial.

On March 17, 2022, the date set for trial, the Court noted that there were no appearances entered by Plaintiff or Plaintiff’s counsel and dismissed the Complaint without prejudice.  (3-17-22 Minute Order.)  On July 6, 2022, the Court granted Plaintiff’s Motion to Set Aside Dismissal and vacated the dismissal entered on March 17, 2022.  (7-6-22 Minute Order.)

            On July 25, 2022, Plaintiff’s counsel, Jacob O. Partiyeli filed the instant Motion to be Relieved as Counsel.  No opposition has been filed.

On October 31, 2022, the Court continued the hearing on the Motion to allow Counsel an opportunity to serve all parties, as Defendant had not been served with the moving papers.  (10-31-22 Minute Order.)  On December 6, 2022, the Court again continued the hearing to allow Counsel another opportunity to serve all parties in the case.  (12-6-22 Minute Order.)

On December 12, 2022, Counsel filed proof of serving Plaintiff and defense counsel with the Court’s December 6, 2022, Order.  (12-12-22 Notice of Entry of Judgment.)

II.              Legal Standard

            Code of Civil Procedure § 284 states that “the attorney in an action…may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney…; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”  (Code Civ. Proc. § 284; CRC 3.1362.)  The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably.  (See Mandell v. Superior (1977) 67 Cal.App.3d 1, 4; Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.)

            In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court, Rule 3.1362.  The motion must be made using mandatory forms:

1.     Notice of Motion and Motion to be Relieved as Counsel directed to the client – (MC-051);

2.     Declaration “stating in general terms and without compromising the confidentiality of the attorney-client relationship” the reasons that the motion was brought (MC-052);

3.     Proposed Order (MC-053).

(Ibid.)  The forms must be timely filed and served on all parties who have appeared in the case.  (Ibid.)  If these documents are served on the client by mail, there must be a declaration stating either that the address where client was served is “the current residence or business address of the client” or “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.”  (Cal. Rules of Court, rule 3.1362(d)(1).)

III.            Discussion

On July 25, 2022, Counsel Jacob O. Partiyeli (“Partiyeli”) moved the Court to relieve him as attorney of record for Plaintiff Moises Sanchez.

On October 31, 2022, the Court found that Counsel properly filed a Notice of Motion and Motion (MC-051), Declaration in Support of the Motion (MC-052) providing a proper reason for the withdrawal, and a Proposed Order, Form MC-053.  (10-31-22 Minute Order.)  The Court also noted that there was no showing that withdrawal would cause injustice or undue delay in the proceedings.  (Ibid.)

Counsel filed proof that all documents were served on Plaintiff on July 21, 2022, at his last known address, which Counsel confirmed with Plaintiff’s neighbor within the past 30 days.  (Ibid.; MC-051, p. 3; MC-052 ¶ 3.)

However, the Court continued the hearing on the Motion because Counsel had not served all parties, in violation of California Rules of Court, rule 3.1362, which requires moving papers to be “served on the client and on all other parties who have appeared in the case.”  (10-31-22 Minute Order.)  On December 6, 2022, the Court again continued the hearing on the Motion because Counsel had not filed proof that all parties had been served with the moving papers and a Notice of Continuance.  (12-6-22 Minute Order.)

On December 12, 2022, Counsel filed proof of serving Plaintiff and defense counsel with the Court’s December 6, 2022, Order.  (12-12-22 Notice of Entry of Judgment.)  However, to date, Counsel has not filed proof that Defendant has been served with the moving papers.

Accordingly, Counsel Partiyeli’s Motion is DENIED without prejudice.

IV.           Conclusion & Order

For the foregoing reasons,

Counsel Jacob O. Partiyeli’s Motion to Be Relieved as Counsel as to Plaintiff Moises Sanchez is DENIED without prejudice.

Moving party is ordered to give notice.