Judge: Katherine Chilton, Case: 20STLC06289, Date: 2023-03-01 Tentative Ruling

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Case Number: 20STLC06289     Hearing Date: March 1, 2023    Dept: 25

PROCEEDINGS:      MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:   Counsel Todd M. Wolfe, Wolfe Legal, APC

RESP. PARTY:         None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel Todd M. Wolfe’s Motion to Be Relieved as Counsel as to Plaintiff New Birth Builders, Inc. 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: 

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

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

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

OPPOSITION:          None filed as of February 26, 2023.                     [   ] Late                      [X] None

REPLY:                     None filed as of February 26, 2023.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 28, 2020, Plaintiff New Birth Builders, Inc. (“Plaintiff”), in propria persona, filed an action against Defendant George Fields (“Defendant”) for breach of contract and common counts – quantum meruit.  On February 25, 2021, Plaintiff filed a Substitution of Attorney indicating that it was being represented by Todd Wolfe, Wolfe Legal, APC.

On March 18, 2021, Defendant filed an Answer to the Complaint.

On February 4, 2022, Plaintiff’s counsel filed a Notice of Death of Plaintiff’s Representative, indicating that Michael Joseph, the sole shareholder, director, and officer of the corporate Plaintiff, had passed away.

            On October 31, 2022, Counsel Todd Wolfe (“Wolfe”) filed the instant Motion to be Relieved as Counsel (“Motion”) as to Plaintiff New Birth Builders, Inc.  No opposition has been filed.

            On December 7, 2022, the Court continued the Non-Jury Trial to August 8, 2023.  (12-7-22 Minute Order.)

            On January 12, 2023, the Court continued the hearing on the instant Motion to March 1, 2023.  (1-12-23 Minute Order.)

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 October 31, 2022, Counsel Todd M. Wolfe, Wolfe Legal, APC (“Wolfe”) filed the instant Motion to be Relieved as Counsel as to Plaintiff New Birth Builders, Inc.  (Mot. – MC-051.)  Counsel properly filed a Notice of Motion and Motion (MC-051).  Counsel also filed a Declaration in Support of the Motion (MC-052) stating the following:

Attorney-client relationship is irreparably broken. Client's principal is deceased, Client's principal's probate counsel has failed to provide Attorney with direction regarding continuation of litigation.

(MC-052, ¶ 2.)  Counsel has also filed a Proposed Order, Form MC-053.

All documents were electronically served on Plaintiff’s probate attorney in LASC Probate Matter No. 22STPB02477 on October 31, 2022, which Counsel confirmed by “[r]eview of official records on file with the California Secretary of State on 10/31/2022.”  (MC-052 ¶ 3; 10-31-22 Proof of Service.)  Counsel also served the documents on defense counsel.  (10-31-22 Proof of Service.)

            The Court finds that all procedural requirements have been satisfied and there is no showing that withdrawal would cause injustice or undue delay in the proceedings.

            Counsel Wolfe’s Motion to be Relieved as Counsel as to Plaintiff New Birth Builders, Inc. is GRANTED.

IV.           Conclusion & Order

For the foregoing reasons,

Counsel Todd M. Wolfe’s Motion to Be Relieved as Counsel as to Plaintiff New Birth Builders, Inc. 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.