Judge: Latrice A. G. Byrdsong, Case: 21STLC05224, Date: 2023-10-17 Tentative Ruling
Case Number: 21STLC05224 Hearing Date: December 6, 2023 Dept: 25
Hearing Date: Wednesday, December 06, 2023
Case Name: CHESTER
LOVEGREN v. JAKE CAVALLO; NICOLAS CAVALLO; KAREN CAVALLO; and DOES 1 to 30,
inclusive.
Case No.: 21STLC05224
Motion: Motion to Be Relieved as Counsel for Plaintiff
Moving Party: Attorneys
for Plaintiff Theodore Cox, Esq, Anthony Robert Lopez Jr., Esq
Responding Party: None
Notice: OK
Tentative Ruling: Plaintiff’s Counsel Theodore Cox’s Motion to be
Relieved as Counsel is GRANTED.
The Order to Show Cause Re:
Dismissal for Failure to Serve/Prosecute and the Trial Setting Conference are continued to
02/28/2024 at 9:30 a.m. in Department 25 of the Spring Street Courthouse.
The Court's Ruling
and Attorney's relief as Counsel of record for client is not effective until
Proof of Service of the Order signed by the Court upon the client is filed in
this action. Until then, counsel
continues to be counsel of record. Cal.
Rules of Court 3.1362(e).
SERVICE:
[X]
Proof of Service Timely Filed (CRC, rule 3.1300) OK
[X]
Correct Address (CCP §§ 1013, 1013a) OK
[X]
16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: None filed as of November 27,
2023 [ ] Late [X] None
REPLY: None filed as of November 27,
2023 [ ] Late [X] None
BACKGROUND
On
July 16, 2021, Plaintiff Chester Lovegren (“Plaintiff”) filed a complaint
against Defendants Jake Cavallo, Nicolas Cavallo, and Karen Cavallo
(“Defendants”), alleging causes of action for motor vehicle and general
negligence. Plaintiff alleges that on July 19, 2019, Defendants negligently
collided with Plaintiff’s vehicle causing Plaintiff injuries. Defendants have made no appearance.
On
July 28, 2023, Plaintiff’s Counsel Theodore Cox (“Counsel”) filed this motion
to be relieved as counsel for Plaintiff.
On
October 17, 2023, the Court continued the hearing on the motion to December 04,
2023.
Counsel with Southwest Legal Group filed the instant Motion
to be Relieved as Counsel (the “Motion”) on October 26, 2023. No opposition was
filed.
MOVING PARTY
POSITION
Plaintiff’s
Counsel moves the Court for an order to be relieved as counsel for Plaintiff.
Counsel cites irreconcilable differences between Plaintiff and Counsel as to
the future handling of this case. Counsel further states that these differences
cannot be resolved and that he would suffer economic hardship and prejudice if
he were compelled to continue representing Plaintiff.
OPPOSITION
No
opposition has been filed.
REPLY
No reply
has been filed.
ANALYSIS
I. Legal
Standard
The
court may order that an attorney be changed or substituted at any time before
or after judgment or final determination upon request by either client or
attorney and after notice from one to the other. (Code Civ. Proc. § 284, subd.
(2).) “The determination whether to grant or deny a motion to withdraw as
counsel lies within the sound discretion of the trial court.” (Manfredi
& Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An
application to be relieved as counsel must be made on Judicial Counsel Forms
MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053
(Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).)
In
addition, California Rules of Court, rule 3.1362 subsection (d) requires that
the notice of motion and motion, declaration, and proposed order be served on
the client and all other parties who have appeared in the case by personal
service, electronic service, or mail. If the notice is served by mail, it must
be accompanied by a declaration stating facts showing that either:
(A) The
service address is the current residence or business address of the client; or
(B) The
service address is 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, subd. (1)(A) & (2).)
Under the Code of
Civil Procedure section 1014, “A
defendant appears in an action when the defendant answers, demurs, files a
notice of motion to strike, files a notice of motion to transfer pursuant to
Section 396(b), moves for reclassification pursuant to Section 403.040, gives
the plaintiff written notice of appearance, or when an attorney gives notice of
appearance for the defendant. After appearance, a defendant or the defendant's
attorney is entitled to notice of all subsequent proceedings of which notice is
required to be given. Where a defendant has not appeared, service of notice or
papers need not be made upon the defendant.”
II. Discussion
Here,
Counsel has filed a motion to be relieved as Plaintiff’s counsel, given proper
notice, and filed forms MC-051 and MC-052. In its prior ruling, the Court found
the motion was not in compliance with CRC 3.1362 on account that Counsel did
not file a Proposed Order, Form MC-053. (10/17/23 Minute Order.) Counsel has since
filed the Form MC-053 and served it on Plaintiff.
Plaintiff’s
Counsel seeks to be relieved because Counsel and Plaintiff maintain differing
opinions and positions regarding the handling of the case. (MC-052, ¶ 2.) Counsel states that he does not believe that
these differences can be resolved and that communication between the Plaintiff
and Counsel has broken down. (Id.) Counsel further states that he
would suffer economic hardship and prejudice if he and Southwest Legal Group
were compelled to continue to represent Plaintiff. (Id.) Counsel’s declaration satisfies the requirement of Rule 3.1362(c).
Counsel states in his declaration that the
Motion was served at Plaintiff’s last known address which was confirmed as
current at most 30 days before this Motion was filed by Lexis Nexis Public
Records – SmartLinx Comprehensive Person Report search on October 26, 2023. (Id.
at ¶ 3.; Ex. A.) Here, Counsel has provided proof of service that indicates
Plaintiff was served by mail to the same address entered in his declaration.
(10/26/23 Proof of Service.) Since defendant has not yet appeared, Counsel’s
service on Plaintiff is sufficient to meet the requirements of CRC 3.1362(d).
III. Conclusion
Plaintiff Counsel’s Motion to be Relieved as
Counsel is GRANTED.
The Order to Show Cause Re:
Dismissal for Failure to Serve/Prosecute and the Trial Setting Conference are continued to 02/28/2024 at
at 9:30 a.m.
in Department 25 of the Spring Street Courthouse.
The Court's Ruling
and Attorney's relief as Counsel of record for client is not effective until
Proof of Service of the Order signed by the Court upon the client is filed in
this action. Until then, counsel
continues to be counsel of record. Cal.
Rules of Court 3.1362(e).