Judge: Katherine Chilton, Case: 21STLC05263, Date: 2023-01-10 Tentative Ruling

Case Number: 21STLC05263     Hearing Date: January 10, 2023    Dept: 25

PROCEEDINGS:      MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:   Counsel James A. Frieden, Esq., for Defendant New City Auto Corporation

RESP. PARTY:         None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel James A. Frieden’s Motion to Be Relieved as Counsel as to Defendant New City Auto Corporation is PLACED OFF CALENDAR as MOOT.

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

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

ANALYSIS:

I.                Background

On July 19, 2021, Plaintiff Juan Pablo Villamizar Benitez (“Plaintiff”) filed an action against New City Auto Corporation (“New City”) and Hudson Insurance Company (“Hudson”), (collectively “Defendants”).  On August 27, 2021, and October 4, 2021, Defendants each filed a separate Answer to the Complaint.

On August 2, 2022, Counsel for Defendant New City Auto Corporation, James A. Frieden, filed the instant Motion to be Relieved as Counsel (“Motion”).

On November 2, 2022, the Court noted that Counsel had failed to file Proposed Order, Form MC-053, and continued the hearing to give Counsel an opportunity to file this form.  (11-2-22 Minute Order.)  On December 5, 2022, the Court noted that no additional papers had been filed and once again continued the hearing to allow Counsel time to file Form MC-053.  (12-5-22 Minute Order.)

On December 14, 2022, Defendant New City Auto filed Form MC-050, Substitution of Attorney, substituting Counsel Frieden with Counsel Edwin I. Aimufua, Esq. as counsel of record.

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 August 2, 2022, Counsel James A. Frieden (“Frieden”) moved the Court to relieve him as attorney of record for Defendant New City Auto Corporation.  (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 that “[t]he attorney-client relationship has broken down.”  (MC-052, ¶ 2.)

All documents were served on Defendant on August 2, 2022, at its last known address, which Counsel confirmed by telephone within the past 30 days.  (MC-052 ¶ 3.)  Counsel also served the documents on the Plaintiff and Defendant Hudson.

On November 2, 2022, the Court found that that Counsel has satisfied most of the procedural requirements for filing the Motion and there is no showing that withdrawal would cause injustice or undue delay in the proceedings.  (11-2-22 Minute Order.)  However, the Court noted that Counsel failed to file a Proposed Order, Form MC-053, and continued the hearing on the Motion to allow Counsel additional time to file and serve Form MC-053 on all parties.  (Ibid.)  On December 5, 2022, the Court noted that no additional papers had been filed and once again continued the hearing to allow Counsel time to file Form MC-053.  (12-5-22 Minute Order.)

On December 14, 2022, Defendant New City Auto filed Form MC-050, Substitution of Attorney, substituting Counsel Frieden with Counsel Edwin I. Aimufua, Esq. as counsel of record.

            Code of Civil Procedure § 284 allows an attorney to be substituted upon the consent of both client and attorney.  Given that Defendant New City Auto has filed a Substitution of Attorney signed by New City Auto, Counsel Frieden, and Defendant’s new counsel, a court order relieving Counsel Frieden as attorney of record is no longer necessary.

For this reason, Counsel Frieden’s Motion is PLACED OFF CALENDAR as MOOT.

IV.           Conclusion & Order

For the foregoing reasons,

Counsel James A. Frieden’s Motion to Be Relieved as Counsel as to Defendant New City Auto Corporation is PLACED OFF CALENDAR as MOOT.

Moving party is ordered to give notice.