Judge: Kerry Bensinger, Case: BC689625, Date: 2023-05-24 Tentative Ruling

Case Number: BC689625    Hearing Date: May 24, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     May 24, 2023                         TRIAL DATE:  N/A

CASE:                                Alejandra Rosas v. Sears Roebuck & Co

CASE NO.:                 BC689625

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:               Grant Waterkotte, Pettit Kohn Ingrassia Lutz & Dolin PC

RESPONDING PARTY:     No opposition

I.          INTRODUCTION

On April 3, 2023, Defendant Sears Roebuck & Co.’s counsel, Grant Waterkotte, 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 

Grant Waterkotte seeks to be relieved as counsel of record for Defendant on the following grounds:  “On October 15, 2018, Sears and its debtor affiliates filed voluntary petitions seeking bankruptcy protection under Chapter 11 of title 11 of the United States Code, and an automatic stay was placed on this case.  Pursuant to the order of the Bankruptcy Court, all unsecured claims, such as this one, possess a sole remedy in Bankruptcy Court.  The Bankruptcy Court issued a plan on this issue that went into effect on October 22, 2022.  Since that time, there has been a breakdown in the attorney client relationship as it pertains to this case and the other matters that the firm was handling on behalf of this client.  Consequently, the firm cannot continue to represent the client in this matter.”  (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.).  

            The Motion complies with the requirements of California Rules of Court, rule 3.1362.  The Court further finds that no prejudice will result from granting this motion as no opposition has been filed.

IV.       CONCLUSION        

Accordingly, the unopposed Motion is GRANTED and effective upon filing a proof of service showing service of this Order on Defendant. 

Moving party to give notice. 

Dated:   May 24, 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.