Judge: Katherine Chilton, Case: 21STLC04630, Date: 2023-05-08 Tentative Ruling

Case Number: 21STLC04630     Hearing Date: May 8, 2023    Dept: 25

PROCEEDINGS:      Motion to be Relieved as Counsel

MOVING PARTY:   Philip DeLuca of Law Offices of Phillip P. DeLuca, counsel for Plaintiff

RESP. PARTY:         None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2))

TENTATIVE RULING:

Philip DeLuca of Law Offices of Phillip P. DeLuca’s motion to be relieved as counsel is DENIED without prejudice.

SERVICE: 

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

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 [NOT OK]

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

OPPOSITION:          None filed as of May 3, 2023                [   ] Late                      [X] None

REPLY:                     None filed as of May 3, 2023                [   ] Late                      [X] None

ANALYSIS:

I.                Background

On June 21, 2021, Plaintiff Nerfitte Wanzo (“Plaintiff”) filed a complaint against Defendant Dameon Powell (“Defendant”) for motor vehicle and general negligence arising out of an alleged motor vehicle accident on June 1, 2019.

On March 16, 2023, Philip DeLuca of Law Offices of Phillip P. DeLuca, counsel for Plaintiff (“Counsel”), filed a motion to be relieved as counsel. No opposition has been filed. On March 20, 2023, this hearing was advanced and continued to May 8, 2023.

II.              Legal Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc. § 284, subd. (2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).)

In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either: 

(A) The service address is the current residence or business address of the client; or 

(B) The 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. 

(Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).) 

III.            Discussion

Counsel states that there has been a breakdown in the attorney/client relationship that is irreconcilable and that continued representation would create a conflict of interest. (Declaration, Sec. 2.) Counsel has filed the proper forms in support of the Motion, as well as proof of service of each form. Counsel has also filed proof of service of the Notice of Advancement of Hearing Date on Motion to be Relieved as Counsel.

However, the Court finds service defective. Counsel states that he served Plaintiff at Plaintiff’s last known address by email and U.S. mail. (Declaration, Sec. 3(a)(2).) But, the declaration submitted in support of the Motion fails to provide satisfactory proof that client’s address was confirmed within 30 days of the mailing of the motion and related documents. It simply states that Counsel has confirmed that Plaintiff’s address is current by “U.S. Mail and Email. Client's last known mailing address and email address.” (Declaration, Sec. 3(b)(1)(d).) This is insufficient. Per item 3(b) on Form MC-052, Counsel must confirm Plaintiff’s address either by mail with return receipt requested, by telephone, by conversation, or by some other means showing that there was some sort of validation or acknowledgment by someone other than Counsel. Alternatively, if Counsel is unable to confirm the client’s last known address, item 3(b) of the declaration requires Counsel to explain the efforts undertaken to apprise the client of the motion. Counsel’s Motion does not do so. It only provides a conclusory statement that the address at which Plaintiff was served is “Client’s last known address and email address.”

Additionally, the Notice of Advancement of Hearing Date purports to attach as Exhibit 1 “conformed copies of the Motion and Motion to be Relieved as Counsel; the Declaration in Support of Attorney's Motion to be Relieved as Counsel; and the Order Granting Attorney's Motion to be Relieved as Counsel.” (Notice of Advancement, p. 1, lines 23-26.) However, the Notice of Motion produced in Exhibit 1 is not conformed, rather, it states that the hearing date for this Motion is June 12, 2023. (Notice of Advancement, Exhibit 1, Notice of Motion, Sec. 2.)

Accordingly, the Court will deny the motion without prejudice.

IV.           Conclusion & Order

Counsel’s motion to be relieved as counsel is DENIED without prejudice.

Moving party is ordered to give notice.