Judge Katherine Chilton, Case 20STLC07522 2023-03-01 Tentative Ruling

Judge: Katherine Chilton, Case: 20STLC07522, Date: 2023-03-01 Tentative Ruling

Case Number: 20STLC07522 Hearing Date: March 1, 2023 Dept: 25

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Counsel Simon Esfandi, Compass Law Group, LLC

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel Simon Esfandi, Esq.’s Motion to Be Relieved as Counsel as to Plaintiff Maria Loera 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 September 3, 2020, Plaintiff Maria Loera (“Plaintiff”) filed an action against Defendant Zeus Misael Frias Velasco (“Defendant”) arising out of an alleged automobile accident that took place on September 20, 2018.

On December 8, 2022, Counsel Simon Esfandi, Compass Law Group, LLP (“Esfandi”) filed the instant Motion to be Relieved as Counsel (“Motion”) as to Plaintiff Maria Loera. On December 22, 2022, Counsel filed an Amended Motion and supplemental papers. No opposition has been filed.

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 December 8, 2022, Counsel Simon Esfandi, Compass Law Group, LLP (“Esfandi”) filed the instant Motion to be Relieved as Counsel as to Plaintiff Maria Loera, followed by an Amended Motion filed on December 22, 2022. Counsel properly filed a Notice of Motion and Motion (MC-051). (12-22-22 Mot. – MC-051.) Counsel also filed a Declaration in Support of the Motion (MC-052) stating that Counsel’s office “has made numerous attempts to contact Plaintiff Maria Loera (our client) via telephone, email, and US mail. Our office mailed out contact letters on over 7 occasions, and hired a private investigator to locate the client.” (12-22-22 Decl. ¶ 2.) Counsel has confirmed through a private investigator that Plaintiff resides at the address where Counsel has been sending mail, however, Plaintiff has not responded to Counsel’s communications or attempted to contact the law office. (Ibid.) Counsel concludes that “Plaintiff does not intend on continuing communication with our office and/or prosecute this case, and consequently, there is a complete breakdown in the attorney-client relationship, thereby rendering further representation of the client impossible.” (Ibid.) On August 31, 2022, a letter was mailed to Plaintiff regarding Counsel’s intent to withdraw as counsel. (Ibid. at pp. 7-9 – Attach. 2.)

Counsel has also filed a Proposed Order, Form MC-053.

All documents were served on Plaintiff via mail on December 22, 2022, at her last known address, which Counsel confirmed by telephone and conversation within the past 30 days. (MC-052 ¶ 3; MC-051 p. 3; MC-052 p. 3; MC-053 p. 3.) Although Defendant has not yet been served with the Summons and Complaint, Counsel also served Defendant with the moving papers. (Ibid.)

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 Esfandi’s Motion to be Relieved as Counsel as to Plaintiff Maria Loera is GRANTED.

IV. Conclusion & Order

For the foregoing reasons,

An Order to Show Cause re: failure to file Proof of Service is set for May 2, 2023 at 9:30 a.m. in Department 25, Spring Street Courthouse. The Court intends to exercise its discretion to dismiss the action for failure to file proof of service within two years pursuant to CCP Section 583.410(a) and 583.420(a)(1).

Moving party is ordered to give notice.