Judge: Katherine Chilton, Case: LAM14K06871, Date: 2022-10-12 Tentative Ruling

Case Number: LAM14K06871    Hearing Date: October 12, 2022    Dept: 25

PROCEEDINGS:      MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:   Counsel Leonard D. Lerner, for Plaintiff Transport Funding LLC

RESP. PARTY:         None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel Leonard D. Lerner’s Motion to Be Relieved as Counsel as to Plaintiff Transport Funding LLC 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 Defendant has been filed with the court.” (Ibid.)

SERVICE:[1]

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 [NOT OK]

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

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     [NOT OK]

OPPOSITION:          None filed as of October 10, 2022.                     [   ] Late                      [X] None

REPLY:                     None filed as of October 10, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On June 6, 2014, Plaintiff Transport Funding LLC (“Plaintiff”) filed an action against Rene O. Gonzalez (“Defendant”).

On July 19, 2022, Counsel for Plaintiff Transport Funding LLC, Leonard D. Lerner filed the instant Motion to be Relieved as Counsel (“Motion”).  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 July 19, 2022, Counsel Leonard D. Lerner (“Lerner”) moved the Court to relieve him as attorney of record for Plaintiff Transport Funding LLC.  (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 the reason for the Motion was “Attorney and client communication breakdown.”  (MC-052, ¶ 2.)  Counsel also filed a Proposed Order, Form MC-053.

All documents were served on Plaintiff on July 19, 2022, at its last known address, which Counsel confirmed by telephone within the past 30 days.  (MC-051, p. 3; MC-052 ¶ 3.)

The Court finds that Counsel has satisfied the procedural requirements for filing the Motion.  Furthermore, there is no showing that withdrawal would cause injustice or undue delay in the proceedings.

The Proof of Service filed by Counsel indicates that he served Plaintiff but not Defendant.  California Rules of Court, rule 3.1362 requires moving papers to be “served on the client and on all other parties who have appeared in the case.”  Since it does not appear that Defendant has appeared in this case, the Court finds that no service on Defendant is required.  The Motion is GRANTED.

IV.           Conclusion & Order

For the foregoing reasons,

Counsel Leonard D. Lerner’s Motion to Be Relieved as Counsel as to Plaintiff Transport Funding LLC 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 Defendant has been filed with the court.” (Ibid.)

Moving party is ordered to give notice.