Judge: Lisa R. Jaskol, Case: 22STCV35509, Date: 2024-09-16 Tentative Ruling
Case Number: 22STCV35509 Hearing Date: September 16, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On July 11, 2022, Plaintiff Colin-Kirk B. Hodge (“Plaintiff”) filed this action against Defendants Edwyn Charles Huang (“Defendant”) and Does 1-10 for assault, battery, intentional infliction of emotional distress, and negligence.
On February 21, 2023, Plaintiff filed a first amended complaint against the same defendants for assault, battery, intentional infliction of emotional distress, negligence, violation of Article 184 of the Taiwanese Civil Code, violation of Article 193 of the Taiwanese Civil Code, and violation of Article 195 of the Taiwanese Civil Code.
On May 9, 2023, the Court sustained without leave to amend Defendant's demurrer to the first through fourth causes of action of the first amended complaint and overruled the demurrer to the fifth through seventh causes of action.
On May 24, 2023, Defendant filed an answer.
On August 19, 2024, Defendant’s counsel Sarah M. Matz, Adelman Matz P.C. filed a motion to be relieved as counsel.
COUNSEL’S REQUEST
Defendant’s counsel Sarah M. Matz, Adelman Matz P.C. 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
Judicial Council Form MC-052 asks why counsel is moving to be relieved under Code of Civil Procedure section 284(2) instead of filing a consent under Code of Civil Procedure section 284(1).
Here, counsel has not asserted that Defendant is unwilling to “fil[e] a consent under [Code of Civil Procedure] section 284(1) . . . .” (MC-052, part 2.) Instead, counsel states that Defendant “has consented for Counsel to withdraw.”
The Court denies the motion because counsel has not shown that Defendant is unwilling to sign a substitution of counsel form under Code of Civil Procedure section 284(l).
CONCLUSION
The
Court DENIES without prejudice the motion to be relieved as counsel filed by Sarah M. Matz, Adelman Matz P.C., counsel for Defendant
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.