Judge: Kerry Bensinger, Case: 19STCV30872, Date: 2023-09-26 Tentative Ruling

Case Number: 19STCV30872    Hearing Date: September 26, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:      September 26, 2023                                   TRIAL DATE:  November 2, 2023

CASE:                                Sarita Payne v. Courtney Erin Carroll

CASE NO.:                 19STCV30872

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:               Michael E. Schwimer, Schwimer Weinstein LLP

RESPONDING PARTY:     No opposition

I.          INTRODUCTION

On August 16, 2023, Michael E. Schwimer of Schwimer Weinstein LLP, counsel for Plaintiff, Sarita Payne, filed this Motion to be Relieved as Counsel.  

II.        LEGAL STANDARDS 

California Rule of Court rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). 

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client, and it does not disrupt the orderly process of justice.  (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)  

III.       DISCUSSION 

Michael E. Schwimer seeks to be relieved as counsel of record for Plaintiff for the following reason: “This Motion is brought due to a breakdown in communication between myself and my client, Plaintiff Sarita Payne (“Plaintiff”), which includes Plaintiff’s failure to respond to communications from myself and my office.  As a result of the breakdown in communication, I can no longer effectively represent Plaintiff.”  (MC-052.)   

Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted.  (People v. Prince (1968) 268 Cal.App.2d 398, 406.).  

Upon review, the Court finds the Motion complies with Rules of Court, rule 3.1362.

IV.       CONCLUSION        

            The Motion is granted and effective upon the filing of the proof of service of this signed order upon Plaintiff.

            Counsel to give notice.  

Dated:   September 26, 2023                                                   ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.