Judge: Latrice A. G. Byrdsong, Case: 22STLC06924, Date: 2024-01-23 Tentative Ruling
Case Number: 22STLC06924 Hearing Date: January 23, 2024 Dept: 25
Hearing Date: Tuesday, January 23, 2024
Case Name: SALVADOR
MINJARES, an individual v. JESSIE FANIEL, an individual; JAZMINE FANIEL, an
Individual; and DOES 1 to 50, inclusive
Case No.: 22STLC06924
Motion: Motion to be Relieved as Counsel
Moving Party: Attorneys
for Plaintiff Joan Lauricella, Esq
Responding Party: None
Notice: OK
Tentative Ruling: Plaintiff’s Counsel Joan Lauricella’s Motion to be
Relieved as Counsel for Plaintiff Salvador Minjares is GRANTED
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 January 09, 2024 [ ] Late [X] None
REPLY: None filed as of January 16, 2024 [ ] Late [X] None
BACKGROUND
On October
18, 2022, Plaintiff Salvador Minjares (“Plaintiff”) filed two causes of action against
Defendants Jessie Faniel and Jazmine Faniel (collectively “Defendants”) for general
negligence and premises liability. There is no proof indicating that Defendants
have been served with service of summons.
On November
7, 2023, Counsel Joan Lauricella, Esq. (“Counsel”) filed the instant Motion to
be Relieved as Counsel for Plaintiff. (“Motion”).
No
opposition has been filed.
MOVING PARTY
POSITION
Counsel prays to
the Court for an order to relieve her as counsel for Plaintiff citing a breakdown
in communication between the Attorney and her client. Counsel states that
despite repeated attempts to communicate with Plaintiff, no response has been
made thus necessitating the motion.
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
On November 07, 2023, Counsel moved
for the Court to relieve her as counsel of record for Plaintiff Salvador
Minjares. (Mot. (MC-051).) Counsel properly filed a Notice of Motion
and Motion (MC-051). Counsel also filed a Declaration in Support of the Motion
(MC-052) stating that,
There has been a complete breakdown
in communication between the moving party and SALVADOR MINJARES in that SALVADOR
MINJARES has failed to return phone calls, texts, and written communications to
him by moving party. Moving party cannot adequately represent SALVADOR MINJARES
without his cooperation; and by failing to communicate with the moving party,
the moving party cannot pursue this matter without SALVADOR MINJARES'
cooperation and participation in this matter.
(MC-052, ¶ 2.) On Form MC-052, Counsel indicates that she has
served Plaintiff by mailing copies of the motion papers to Plaintiff’s
last known address. (MC-052 ¶ 3a(2).)
Counsel also provided the Court with a
Proposed Order, Form MC-053, which further includes Proof of Service indicating
that both Plaintiff and Defendants have been served with the Notice, Motion,
Declaration, and Order. (MC-053.)
The Court finds that all procedural requirements have been
satisfied and there is no showing that withdrawal
would cause injustice or undue delay in the proceedings.
Accordingly, Counselor Lauricella’s
Motion to be relieved as Counsel for Plaintiff Salvador Minjares is GRANTED.
III. Conclusion
Plaintiff’s Counsel Joan
Lauricella’s Motion to be Relieved as Counsel for Plaintiff
Salvador Minjares is GRANTED.
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).
Counsel is ordered to give
notice.