Judge: Lisa R. Jaskol, Case: 22STCV20977, Date: 2024-10-02 Tentative Ruling
Case Number: 22STCV20977 Hearing Date: October 2, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On June 28, 2022, Plaintiff Marie Benson (“Plaintiff”) filed this action against Defendants Two Eleven Spalding Condominium Association (“Defendant”) and Does 1-100 for premises liability and general negligence.
On December 22, 2022, Defendant filed an answer.
On August 23, 2024, Plaintiff’s counsel filed a motion to be relieved as counsel. The motion was set for hearing on October 2, 2024.
Trial is currently scheduled for January 6, 2025.
COUNSEL’S REQUESTS
Plaintiff’s counsel asks to be relieved as counsel.
LEGAL STANDARD
Code of Civil Procedure section 284 provides:
“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, provides:
“(a) Notice
“A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051).
“(b) Memorandum
“Notwithstanding any other rule of court, no memorandum is required to be filed or served with a motion to be relieved as counsel.
“(c) Declaration
“The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).
“(d) Service
“The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail.
“(1) If the notice is served on the client by mail under Code of Civil Procedure section 1013, 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.
“(2) If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client's current electronic service address.
“As used in this rule, ‘current’ means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.
“(e) Order
“The proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel-Civil (form MC-053) and must be lodged with the court with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. 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.)
DISCUSSION
Plaintiff’s counsel did not list the “name of withdrawing attorney” in Section 1 of the MC-051 form (Notice of Motion and Motion to be Relieved as Counsel—Civil). Counsel should include that information.
The proofs of service attached to counsel’s motion, declaration, and proposed order show service only on Defendant. Counsel’s declaration states that Plaintiff passed away earlier this year and Plaintiff’s sisters informed counsel that the family has decided not to pursue Plaintiff’s action. Counsel nonetheless should also serve the motion, declaration, and proposed order on Plaintiff’s family members who might serve as Plaintiff’s successors-in-interest.
The Court denies the motion without prejudice.
CONCLUSION
Counsel is ordered to give notice of this ruling.
Counsel is ordered to file the proof of service of this ruling with the Court within five days.