Judge: Kerry Bensinger, Case: 22STCV00432, Date: 2023-05-08 Tentative Ruling

Case Number: 22STCV00432    Hearing Date: May 8, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.                   INTRODUCTION

On January 5, 2022, Plaintiff Romain Tara Pina (“Plaintiff” or “client”) sued Defendant J.C. Commercial Property, LLC (“Defendant”) for a slip and fall accident that occurred on or about January 17, 2020, at 6214 South Vermont Ave, Los Angeles, CA.

On January 17, 2023, Plaintiff’s attorney Ryan Kerbow, Esq. (“Counsel”) of Bernstein & Poisson moved to be relieved as counsel.

On March 15, 2023, the Court noted that Counsel’s motion to be relieved did not comply with Rule 3.1362 of the California Rules of Court because counsel failed to use the appropriate Judicial Council forms. The Court continued the hearing on the motion to May 8, 2023 and directed Counsel to provide all supporting documentation correcting the deficiencies and further directed that such documents must be filed at least five days before the hearing date.

On May 2, 2023, Counsel filed the motion to be relieved.

II.                LEGAL STANDARD

“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: 1) upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; 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.)¿ 

Under California Rules of Court, rule 3.1362, an attorney moving to be relieved as counsel must do the following:¿ 

1.      File a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel -- Civil form (MC-051));¿ 

2.      Submit 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.      Serve the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and¿¿ 

4.      Lodge a proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to be Relieved as Counsel -- Civil form (MC-053)).¿ 

“The question of granting or denying an application of an attorney to withdraw as counsel (Code Civ. Proc., § 284, subd. (2)) is one which lies within the sound discretion of the trial court ‘having in mind whether such withdrawal might work an injustice in the handling of the case.’”¿ (People v. Prince (1968) 268 Cal.App.2d 398, 406 [internal quotations omitted].)¿ The court should also consider whether the attorney’s “withdrawal can be accomplished without undue prejudice to the client’s interests.”¿ (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)¿¿¿¿

III.             DISCUSSION

First, Counsel properly filed a notice of motion and motion directed to Plaintiff.

Second, Counsel properly submitted a declaration stating why he moved under Code of Civil Procedure section 284(2).

However, Counsel’s proof of service does not show having served the proposed order (Form MC-053) on Plaintiff.

Moreover, Counsel’s motion and proposed order provide 10:00 a.m. as the time of the hearing when it is 1:30 p.m. The proposed order also fails to list the date and time for the hearing on the OSC re Dismissal set for June 2, 2025 at 8:30 a.m.  Furthermore, Counsel’s declaration fails to complete item 3(b)(2) and provides no indication of the efforts Counsel expended to contact Plaintiff or Plaintiff’s next of kin in connection with this motion.

Finally, Counsel inconsistently identifies Plaintiff as either “Romain Pina” on the notice of motion and motion, proof of service, proposed order, and declaration, but then also refers to Plaintiff as “Roman Tara Pina” in the body of the declaration..

IV.             CONCLUSION

Thus, the Court denies Counsel’s Motion to Be Relieved without prejudice.

Moving party to give notice.

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.

Dated this 8th day of May 2023