Judge: Katherine Chilton, Case: 20STLC03802, Date: 2023-02-14 Tentative Ruling

Case Number: 20STLC03802     Hearing Date: February 14, 2023    Dept: 25

PROCEEDINGS:      MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:   Counsel Ernest P. Algorri/DeWitt Algorri & Algorri, LLP, for Defendant Rosana Madariaga

RESP. PARTY:         None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel Ernest P. Algorri’s Motion to Be Relieved as Counsel as to Defendant Rosana Madariaga is GRANTED and the Order will be signed at the hearing.  “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).)  The Order on this Motion will not be effective “until proof of service of a copy of the signed order on the client has been filed with the court.” (Ibid.)

SERVICE:

[   ] 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 February 8, 2023.                       [   ] Late                      [X] None

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

ANALYSIS:

I.                Background

On May 4, 2020, Plaintiff Infinity Insurance Company (“Plaintiff”) filed an action against Defendants Rosana Madariaga aka Rosana Flores aka Rosana Madariga (“Madariaga”) and Jaime Hernandez (“Hernandez”), (collectively “Defendants”).

Following their failure to respond, default was entered against Defendant Hernandez on October 7, 2020, and against Defendant Madariaga on June 25, 2021.  (10-7-20 Request for Entry of Default; 6-25-21 Request for Entry of Default.)

            On December 30, 2021, the Court granted in part and denied in part Defendants’ Motion to Set Aside Default, filed on October 19, 2021.  (12-30-21 Minute Order.)  Default entered against Defendant Madariaga was vacated and Madariaga was ordered to file a responsive pleading within ten (10) days’ notice of the Court Order; however, the request to vacate default as to Defendant Hernandez was denied.  (Ibid.)

            On January 7, 2022, Defendant Madariaga filed a General Denial.

            On May 26, 2022, Defendant Madariaga’s counsel Ernest Algorri (“Algorri”) filed a Motion to be Relieved as Counsel; however, the hearing on the Motion did not take place.

            On November 15, 2022, Defendant Madariaga’s counsel Ernest P. Algorri filed the instant Motion to be Relieved as Counsel.  No opposition has been filed.

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 November 15, 2022, Counsel Ernest P. Algorri, DeWitt Algorri & Algorri, LLP (“Algorri”) moved the Court to relieve him as attorney of record for Defendant Rosana Madariaga aka Rosana Flores aka Rosana Madariga.

Counsel has 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.  Counsel explains that:

A conflict of interest has arisen, the substance of which cannot be disclosed to this court on the record due to the attorney-client privilege. There has been an irreparable breakdown of the attorney-client relationship necessitating this Motion, said conflict of interest was not caused or created in any manner by your declarant herein. Counsel represents as an officer of the court that the provisions of Rules of Professional Conduct Rule 3-700 requires this application as the conflict has only recently come about.

(MC-052 ¶ 2.)

Counsel filed proof that all documents were served on Defendant Madariaga on November 15, 2022, at her last known address, which Counsel confirmed within the past 30 days by mail, return receipt requested.  (MC-051, p. 3; MC-052 ¶ 3, p. 3; MC-053 p. 3.)  Plaintiff has also been served with the moving papers.  (Ibid.)  Although Counsel has not served Defendant Hernandez, default was entered against Defendant Hernandez for failure to file a response to the Complaint, and California Rules of Court, rule 3.1362(d) does not require service on parties who have not made an appearance in the case.

Furthermore, there is no showing that withdrawal would cause injustice or undue delay in the proceedings.

Accordingly, Counsel Algorri’s Motion is GRANTED.

IV.           Conclusion & Order

For the foregoing reasons,

Counsel Ernest P. Algorri’s Motion to Be Relieved as Counsel as to Defendant Rosana Madariaga is GRANTED and the Order will be signed at the hearing.  “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.”  (Cal. Rules of Court, rule 3.1362(e).)  The Order on this Motion will not be effective “until proof of service of a copy of the signed order on the client has been filed with the court.” (Ibid.)

Moving party is ordered to give notice.