Judge Kerry Bensinger, Case Number: 21SRCV44080, Date: 2024-04-24 Tentative Ruling

On January 23, 2024, Marvin B. Adviento, counsel for Plaintiff, Elena Svistina, filed this Motion to be Relieved as Counsel.

The motion was calendared for hearing on February 21, 2024. Because the motion was not supported by proof of service or a completed proposed order (Form MC-053), the court continued the motion to March 27, 2024.

On March 4, 2024, Counsel filed an amended Motion to be Relieved as Counsel. At the hearing on March 27, 2024, the court continued the motion a second time because the amended Motion did not address any of the issues raised in the court’s previous order. The motion was continued to April 24, 2024. Counsel was directed to file a proof of service showing this motion was served on all parties in this action and to submit a proposed order (Form MC-053) which addressed Items 3, 5, 7, and 9.

On April 18, 2024, Counsel filed a declaration. The amended Motion and proposed order is attached to the declaration. In the declaration, Counsel explains the following:

“As for the Motion itself with the new date of April 24, 2024, my first attempt to file it was rejected on April 8, 2024 because the original reservation number on the Motion was for the initial hearing date of February 21, 2024.” (Adviento Decl., ¶ 5.) “This was surprising because after the February 21, 2024 hearing was continued, I re-filed the Motion with the continued March 27, 2024 hearing date with the same reservation number, and it was accepted.” (Id. at ¶ 6.) “Thereupon, on April 18, 2024, I re-filed the Motion with the April 24, 2024 hearing date without the reservation number.” (Id. at ¶ 7.)

California Rules 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.)

Marvin B. Adviento seeks to be relieved as counsel of record for Plaintiff for the following reasons: “There is an irreparable breakdown in the attorney-client relationship.” (Form 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 amended motion now complies with California Rules of Court, rule 3.1362. Counsel has cured the defects noted in the court’s previous orders.

Accordingly, the unopposed Motion to Be Relieved as Counsel is GRANTED and effective upon the filing of the proof of service of this signed order on Plaintiff.

Kerry Bensinger

Judge of the Superior Court