Judge: Lisa R. Jaskol, Case: 22STCV21434, Date: 2025-01-03 Tentative Ruling
Case Number: 22STCV21434 Hearing Date: January 3, 2025 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On June 30, 2022, Plaintiff Brandon Newcomb (“Plaintiff”) filed this action against Defendants AndersonPacific LLC, Ledcor Development LP, Ledcor Properties Corporation, Qualico Developments (CA), Inc., Shoreline Development Partners LP, Landtower Residential, City of Long Beach, and Does 1-50 for negligence, premises liability, and dangerous condition of public property (Gov. Code, § 835).
On November 13, 2023, Defendant Qualico Developments (CA), Inc filed an answer and a cross-complaint against Cross-Defendants Roes 1-100 for implied contractual indemnity, equitable indemnity, express indemnity, breach of written contract, breach of oral contract, breach of implied contract, negligence, declaratory relief (duty to defend), declaratory relief (duty to indemnify), declaratory relief (contractual duties and obligations), contribution, and apportionment of fault.
On November 13, 2023, Defendant Shoreline Development Partners LP filed an answer and a cross-complaint against Cross-Defendants Zoes 1-100 for implied contractual indemnity, equitable indemnity, express indemnity, breach of written contract, breach of oral contract, breach of implied contract, negligence, declaratory relief (duty to defend), declaratory relief (duty to indemnify), declaratory relief (contractual duties and obligations), contribution, and apportionment of fault.
On November 13, 2023, Defendant Landtower Residential filed an answer and a cross-complaint against Cross-Defendants Joes 1-100 for implied contractual indemnity, equitable indemnity, express indemnity, breach of written contract, breach of oral contract, breach of implied contract, negligence, declaratory relief (duty to defend), declaratory relief (duty to indemnify), declaratory relief (contractual duties and obligations), contribution, and apportionment of fault.
On April 19, 2024, Defendant and Cross-Complainant Shoreline Development Partners LP amended its cross-complaint to include Cross-Defendant Build Group Construction Company, Inc. as Zoe 1.
On June 18, 2024, Plaintiff amended the complaint to include Defendant Build Group Construction Company, Inc. as Doe 1.
On August 1, 2024, the Court dismissed Cross-Defendant Build Group Construction Company, Inc. from the cross-complaint filed by Shoreline Development Partners LP without prejudice at the request of Defendant and Cross-Complainant Shoreline Development Partners LP.
On November 19, 2024, Plaintiff’s counsel Scott A. Kennedy, Esq. filed a motion to be relieved as counsel. The motion was set for hearing on January 3, 2025. On December 30, 2024, Plaintiff’s counsel filed a supplemental declaration supporting the motion.
Trial is currently scheduled for June 30, 2025.
COUNSEL’S REQUEST
Plaintiff’s counsel Scott A. Kennedy, Esq. 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
In his supplemental declaration, Plaintiff’s counsel states that he served the motion to be relieved as counsel on Plaintiff. However, counsel has not served the moving papers on all the parties that have appeared in this case. (See Cal. Rules of Court, rule 3.1362(d).) The Court continues the hearing and orders counsel to submit proof of service of the moving papers on all parties who have appeared in the case at least 6 days prior to the continued hearing date.
CONCLUSION
The
Court CONTINUES the hearing on Scott A. Kennedy, Esq.’s motion to be relieved
as counsel to January 21, 2025, at 1:30 p.m. in Department 28 of the Spring
Street Courthouse. The Court orders
Scott A. Kennedy, Esq. to file proof of service of the moving papers on all parties who have appeared in the case at least 6 days prior to the continued
hearing date.
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.