Judge: Lee W. Tsao, Case: 23NWCV03603, Date: 2025-06-05 Tentative Ruling

Case Number: 23NWCV03603    Hearing Date: June 5, 2025    Dept: C

MARY R. VILLESCAS v. GRACIELA DE LA TORRE-GARCIA

CASE NO.:  23NWCV03603 

HEARING:  06/05/25 @ 10:30 a.m.

#24

TENTATIVE ORDER

Counsel Michael Daurio, Esq.’s motion to be relieved as counsel for Plaintiff is DENIED.

Moving party to give notice.  

Background

This action arises out of a motor vehicle collision that occurred on November 9, 2021 on Alondra Blvd. & Belshire Avenue, Norwalk, CA 90650. Plaintiff filed this action against Defendant Graciela De La Torre-Garcia. The complaint asserts two causes of action: (1) general negligence and (2) motor vehicle.

On July 24, 2024, Plaintiff filed a Notice of Settlement. An OSC re: Dismissal (Settlement) was scheduled for December 12, 2024. On December 12, 2024, the OSC re: Dismissal (Settlement) was continued to March 25, 2025, because Plaintiff’s counsel Michael Daurio (“Plaintiff’s Counsel”) indicated an intent to file a motion to be relieved as counsel.

On December 13, 2024, Plaintiff’s counsel filed the instant motion to be relieved as Plaintiff’s counsel.

On March 25, 2025, the OSC re: Dismissal (Settlement) was continued to June 20, 2025, pursuant to the pending hearing on this motion.

On May 21, 2025, the Court continued the hearing on this motion to June 5, 2025. Counsel was advised to file an amended declaration providing updated notice to his client because there was no proof of service indicating Counsel provided notice to Plaintiff of the continuation for the OSC re: Dismissal (Settlement) to June 20, 2025.

Legal Standard

“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: ¶ 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; ¶ 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.) California Rules of Court, rule 3.1362 requires that the following be submitted in support of an attorney’s motion to be relieved as counsel pursuant Code of Civil Procedure section 284, subd. (2): (1) a notice of motion and motion directed to the client (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, subd. (2) is brought instead of filing a consent under Code of Civil Procedure section 284, subd. (1) (Form MC-052); (3) a proof of service evidencing service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (Form MC-053). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (d), (e).)

Discussion

Counsel moves to be relieved as counsel for Plaintiff.

Here, in compliance with California Rules of Court, rule 3.1362, Counsel has submitted a notice of motion and motion on Form MC-051 directed to Plaintiff. Counsel has also submitted a declaration on Form MC-052 demonstrating good cause to be relieved as counsel for Plaintiff. Specifically, there has been a breakdown in the attorney-client relationship. Counsel’s declaration provides notice of an OSC re: Dismissal (Settlement) on March 25, 2025.

On May 21, 2025, the Court found that Counsel had not fully complied with the requirements under California Rules of Court, rule 3.1362 because there was no proof of service indicating Counsel provided notice to Plaintiff of the continuation for the OSC re: Dismissal (Settlement) to June 20, 2025. “Counsel is advised to file an amended declaration providing updated notice to his client.” (Min. Order, May 21, 2025.)

Counsel has not cured this defect. The court does not see that Counsel filed an amended declaration providing updated notice of the continuation for the OSC re: Dismissal (Settlement) to his client. The Court does not see a proof of service indicating Counsel provided notice to Plaintiff of the continuation for the OSC re: Dismissal (Settlement).

Thus, the instant motion is DENIED.

Moving party to give notice.