Judge: Katherine Chilton, Case: 21STLC06126, Date: 2023-01-11 Tentative Ruling

Case Number: 21STLC06126     Hearing Date: January 11, 2023    Dept: 25

PROCEEDINGS:      MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:   Counsel Mario M. De La Rosa, for Plaintiff Miguel Sanchez

RESP. PARTY:         None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel Mario M. De La Rosa’s Motion to Be Relieved as Counsel as to Plaintiff Miguel Sanchez 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 Plaintiff 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 January 8, 2023.               [   ] Late                      [X] None

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

ANALYSIS:

I.                Background

On August 20, 2021, Plaintiff Miguel Sanchez (“Plaintiff”) filed an action against Defendants Jose Alfredo Claro Sr. (“Jose”) and Lorenza E. Collins Claro (“Lorenza”), (collectively “Defendants”), arising out of an automobile accident on September 25, 2019.

            On November 8, 2022, Plaintiff’s counsel, Mario M. De La Rosa 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 8, 2022, Counsel Mario M. De La Rosa (“De La Rosa”) moved the Court to relieve him as attorney of record for Plaintiff Miguel Sanchez.

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 “Attorney and client have had a permanent and irreconcilable breakdown in communication such that the attorney can no longer represent the client. This breakdown is permanent.”  (MC-052 ¶ 2.)

Counsel filed proof that all documents were served on Plaintiff on November 2, 2022, at his last known address, which Counsel confirmed within the past 30 days through conversation with Plaintiff.  (MC-051, pp. 5-6; MC-052 ¶ 3, pp. 3-4; MC-053 pp. 3-4.)  Although Counsel has not served Defendants, 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 De La Rosa’s Motion is GRANTED.

IV.           Conclusion & Order

For the foregoing reasons,

Counsel Mario M. De La Rosa’s Motion to Be Relieved as Counsel as to Plaintiff Miguel Sanchez 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 Plaintiff has been filed with the court.” (Ibid.)

Moving party is ordered to give notice.