Judge: Latrice A. G. Byrdsong, Case: 21STLC07922, Date: 2023-12-11 Tentative Ruling
Case Number: 21STLC07922 Hearing Date: January 16, 2024 Dept: 25
Hearing Date: Tuesday, January 16, 2024
Case Name: VICTORIA
GLASS; MARTEL GRACE v. JORGE ALEXANDER GODINEZ FLORES; DOES 1-50, Inclusive.
Case No.: 21STLC07922
Motion: Motion to be Relieved as Counsel
Moving Party: Attorneys
for Plaintiff Paul Kingston, Esq
Responding Party: None
Notice: OK
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 January 03, 2024 [ ] Late [X] None
REPLY: None filed as of January 08, 2024 [ ] Late [X] None
BACKGROUND
On November
4, 2021, Plaintiffs Victoria Glass (“Glass”) and Martel Grace (“Grace”)
(collectively “Plaintiffs”) filed an action against Jorge Alexander Godinez
Flores (“Flores” or Defendant”) for personal injury and/or property damage.
There is no proof indicating that Defendant has been served with the pleadings.
On April
26, 2023, Counsel Paul Kingston (“Counsel”) moved to be Relieved as Counsel as
to Plaintiffs Victoria Glass and Martel Grace (“Motion”).
On July 13,
2023, the Court denied Counsel’s motion without prejudice.
On November
01, 2023, Counsel filed the instant Motion to be Relieved as Counsel as to Plaintiff
Victoria Glass (“Motion”). On December 11, 2023, the Court continued the
hearing to January 16, 2024, citing deficiencies with Counsel’s Motion.
No
opposition has been filed.
MOVING PARTY
POSITION
Plaintiff’s
Counsel prays to the Court for an order to be relieved as counsel for Plaintiff
citing a breakdown in communication between the Attorney and his client.
Counsel states that despite repeated attempts to communicate no response has
been made by Plaintiff Glass.
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
In
its prior order, the Court noted the following deficiencies: “Counsel [did] not
list the reason for motion. (MC-052, ¶ 2.) Counsel misplaces his reason in the
section meant to identify what documents Counsel has provided to support the
declaration. (MC-051, ¶ 3.) [Therefore], Counsel’s declaration does not satisfy
the requirement of Rule 3.1362(c).” (12/11/23 Minute Order.)
The Court notes that since issuing its prior order, Counsel has not
provided any supplemental filing that corrects the deficiency noted in
Counsel’s motion. Accordingly, the Court DENIES Counsel’s Motion to be Relieved
as Counsel.
III. Conclusion
Plaintiff Counsel’s Motion to be Relieved as
Counsel is DENIED.
Plaintiff’s Counsel is ordered to
give notice.