Judge: Lisa R. Jaskol, Case: 23STCV15883, Date: 2025-03-04 Tentative Ruling

Case Number: 23STCV15883    Hearing Date: March 4, 2025    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On July 7, 2023, Plaintiff Leroy Gibbons (“Plaintiff”) filed this action against Defendants Lyft, Inc. (“Lyft”), Diane Beivavines, Sum Cho Kim, and Does 1-20 for motor vehicle tort and general negligence. 

On August 10, 2023, Lyft filed an answer. 

On November 27, 2023, the Court granted Lyft’s motion to compel arbitration and stay proceedings pending arbitration. 

On June 20, 2024, Defendant Diana Benavides, erroneously named and sued as Diane Beivavines, filed an answer. 

On December 13, 2024, Plaintiff’s counsel, Harry Nalbandyan and Levin & Nalbandyan, LLP, filed an amended motion to be relieved as counsel.  The motion was set for hearing on January 9, 2025. The Court continued the hearing to March 4, 2025. 

Trial is currently scheduled for May 6, 2025. 

COUNSEL’S REQUEST 

Harry Nalbandyan and Levin & Nalbandyan, LLP, ask to be relieved as counsel for Plaintiff Leroy Gibbons, who has passed away. 

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.) 

An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute.  (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197 (Vann); People v. Prince (1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice on a third party.  (See Hodcarriers, Bldg. and Common Laborers Local Union No. 89 v. Miller (1966) 243 Cal.App.2d 391.) The rules have been liberally construed to protect clients. (See Vann, supra, 54 Cal.App.3d 192.) 

An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests.  However, an attorney “shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.” (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the client’s case. (CRPC 3.700(A)(2).) 

DISCUSSION 

On July 16, 2024, Plaintiff’s counsel filed a motion to be relieved as counsel, stating that Plaintiff had passed away on February 15, 2024.  On August 16, 2024, the Court denied the motion, ruling that (1) counsel must file a copy of the death certificate and serve all parties of record, (2) counsel must exhaust efforts to determine if there is a successor-in-interest or personal representative of Plaintiff and state that all efforts have been exhausted in counsel’s declaration, (3) counsel  must be prepared to move to dismiss the case if counsel has exhausted efforts to determine if there is a successor-in-interest or personal representative of Plaintiff, and (4) counsel must provide information on all future proceedings in this case. 

Counsel’s amended motion to be relieved as counsel includes a death certificate.  The amended declaration states that Plaintiff’s counsel has not been able to locate a next of kin.  However, the amended declaration does not comply with the Court’s August 16, 2024 order (1) to state whether counsel has exhausted efforts to determine if there is a successor-in-interest or personal representative for Plaintiff or (2) to state whether counsel is prepared to move to dismiss the case.  The Court therefore denies the motion. 

CONCLUSION 

The Court DENIES without prejudice the amended motion to be relieved as counsel for Plaintiff Leroy Gibbons filed by Harry Nalbandyan and Levin & Nalbandyan, LLP on December 13, 2024. 

Plaintiff’s counsel are ordered to give notice of this ruling. 

Plaintiff’s counsel are ordered to file the proof of service of this ruling with the Court within five days.