Judge: Lee S. Arian, Case: 22STCV14220, Date: 2023-11-27 Tentative Ruling

Case Number: 22STCV14220    Hearing Date: January 26, 2024    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Matthew S. Erickson, Esq. (“Counsel”)   

RESPONDING PARTY: Unopposed  

I.            INTRODUCTION

On April 28, 2022, Plaintiff Susan Abramson (“Plaintiff”) filed a complaint asserting causes of action for negligence and premises liability against Defendants City of Los Angeles, Montana Realty LP, and Does 1 to 25. As alleged in the complaint, on April 20, 2020, Plaintiff sustained injuries when she tripped and fell over a raised portion of a sidewalk that was not illuminated by any lights. The accident occurred at or near 6615 Darby Avenue, Reseda, California 91335.

On January 26, 2023, Defendant Montana Realty LP filed its answer.

On September 19, 2023, Plaintiff’s counsel, Matthew S. Erickson (“Counsel”), filed a motion to be relieved as counsel.

On September 27, 2023, the parties stipulated to continue trial from October 26, 2023 to April 12, 2024, with all discovery and motion cut-off dates reset to the new trial date.

On November 27, 2023, the Court issued a tentative ruling which continued the hearing on the motion to be relieved as counsel. (11/27/23 Minute Order at p.2.) The Court continued the hearing because the motion relied “on outdated information; [and] because of the recent stipulation, the motion no longer [contained] the correct dates or the upcoming hearings in this action.” (Id.) Moreover, the Court found that Counsel did not include proof of confirmation that Plaintiff’s address, which is a P.O. box located in Reseda, was her current address. (Id.) The Court ordered Counsel “to file and serve a revised motion at least 5 court days before the continued hearing.” (Id.)

On December 29, 2023, Counsel filed and served an amended notice of motion and motion to be relieved as counsel.

On January 11, 2024, the Court issued an order continuing the hearing on the amended motion to be relieved as counsel to January 26, 2024. (01/11/24 Minute Order.) The Court indicated that it “still [had] concerns as to whether Counsel sufficiently confirmed that Plaintiff received a document sent to her P.O. Box” as well as Counsel’s proof of confirmation concerning Plaintiff’s current address. (01/11/24 Minute Order at p. 3.) The Court instructed Counsel, at least five court days prior to the continued hearing, “to file and serve either (1) a revised motion or (2) if counsel believes such motion is not necessary and the above concerns can be sufficiently addressed by declaration, then he is to file a declaration and other documents as needed.” (01/11/24 Minute Order at p. 3.)

On January 19, 2024, Counsel filed and served notice of the Court’s January 11, 2024 order. Also, on January 19, 2024, Counsel filed and served a Supplemental Declaration in Support of the Amended Motion to be Relieved as Counsel (the “Supplemental Declaration”).

The Court notes that the proofs of service as to the Supplemental Declaration and notice of the Court’s January 11, 2024 order indicate that the ZIP Code of Plaintiff’s P.O. Box is 91335; however, Counsel’s Supplemental Declaration indicates that the ZIP Code of Plaintiff’s P.O. Box is 91337. The Court assumes that there may be a typographical error in the proofs of service as counsel has attested to serving Plaintiff at her P.O. Box by mail, which has the ZIP Code of 91337

II.          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 of Civ. Proc., § 284(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 Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.1362(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). The proposed order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known.  (Cal. Rules of Court, rule 3.1362(e).)

 Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362(e).) A motion to withdraw will not be granted where withdrawal would prejudice the client.  (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) 

III.        DISCUSSION

The Court references its January 11, 2024 minute order and incorporates it herein.

In his Supplemental Declaration, Counsel declares that the attorney-client relationship has deteriorated such that further representation is not possible. (See Supp. Decl. at p.1.) In his Supplemental Declaration, Counsel declares to have served the motion by mail at Plaintiff’s last known address and attests to confirming such address within the last 30 days “by mail, return receipt requested.” (Supp. Decl., ¶ 3(b)(1)(a).)

Counsel attests that he served Plaintiff with the motion at her only known address of “Susan Abramson, PO Box 370471, Reseda, California 91337-0471” which has been confirmed to be valid through various mailings sent to Plaintiff at said address which was further confirmed pursuant to this Court’s orders. (Supp. Decl., Attachment 2 at ¶ 3.) No mailings ever sent to Plaintiff’s P.O. Box have been returned to sender. (Supp. Decl., Attachment 2 at ¶ 3.) As a result of mailing the amended motion to be relieved as counsel to Plaintiff using USPS Certified Mail with Return Receipt requested, Counsel received back from the USPS a return receipt signed by Plaintiff. (Supp. Decl., Attachment 2, ¶ 4; Exhibit A.) The signature on the USPS Return Receipt matches the signature Plaintiff used when she retained counsel’s services. (Supp. Decl., Attachment 2, ¶ 5; Exhibit B.) Counsel received an e-mail from the supervisor of the Reseda, California post office indicating that Plaintiff would have had to pick up the certified mail personally as that is what required, and Counsel was provided with the return receipt signed by Plaintiff. (Supp. Decl., Attachment 2, ¶ 6; Exhibit C.)

Counsel has stated a valid basis to be relieved as counsel. Counsel has also alleviated the Court’s concerns as to the confirmation of Plaintiff’s current address. Non-jury trial is not scheduled to commence until April 12, 2024, which should afford Plaintiff the opportunity to retain new counsel.

In sum, the Court GRANTS the amended motion of Matthew S. Erickson to be relieved as counsel for Plaintiff.

IV.     CONCLUSION

Counsel Matthew S. Erickson’s amended motion to be relieved as counsel for Plaintiff is GRANTED, effective the date that legal Notice of this ruling is provided to Plaintiff.  

Moving party is ordered 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 26th day of January 2024