Judge: Mark A. Young, Case: 23SMCV02011, Date: 2024-06-12 Tentative Ruling

Case Number: 23SMCV02011    Hearing Date: June 12, 2024    Dept: M

CASE NAME:           Arcos, v. Anuluoha, et al.

CASE NO.:                23SMCV02011

MOTION:                  Motion to be Relieved

HEARING DATE:   6/12/2024

LEGAL STANDARD

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (CCP § 284(2).) The attorney seeking to withdraw must take “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.” (Cal. Rules of Prof. Conduct, 3-700(A)(2). See, e.g., Vann v. Shilleh (1975) [holding withdrawal prejudicial where attorney withdraw from the representation of defendant on the Friday before trial began the following Monday].) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) 

An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (CRC 3.1362(a), (c), (e).) The requisite forms must be served “on the client and on all parties that have appeared in the case.” (CRC, 3.1362(d).) When a client is served by mail, the attorney’s declaration must indicate that the client’s address was confirmed within the last 30 days and how it was confirmed. (Id.) If the attorney is unable to confirm the client’s current address, the declaration must state the reasonable efforts made within the last 30 days to obtain the client’s current address. (Id.)

Additionally, the declaration “must state in general terms and without compromising the confidentiality of the attorney client relationship why” a motion is brought instead of filing a substitution of attorney. (CRC, 3.1362(c).)

ANALYSIS

Daniel C. Sharpe, Esq., of Windsor Troy (“Counsel”) moves to be relieved as counsel of record for Plaintiff Marcelino Arcos.

Counsel failed to submit all mandatory forms, specifically the MC-052 declaration. In lieu of the MC-052 form, counsel submits a written declaration. However, this form was required to be completed and served on the client. (CRC Rule 3.1362(d).) Also, since the declaration is not on the required form, counsel failed to declare whether the client was served at his last known address, or whether that address was confirmed within the past 30 days. Of course, the address could probably not be confirmed within the last 30 days, due to the client’s failure to communicate. Still, the forms are mandatory.

Accordingly, the motion is DENIED without prejudice.  If counsel files the appropriate form before the June 12, 2024 hearing, the Court would rule as follows:

As to the merits of the request, the Court has some concerns that the client will be prejudiced if relief is granted at this late juncture. Notably, the trial is set for July 29, 2024, which is mere weeks from this hearing. Withdrawal at this late stage could impermissibly prejudice Plaintiff. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; see CRPC, Rule 1.16(d) [prohibits an attorney from withdrawing from pending matters without court permission until appropriate steps have been taken to avoid reasonably foreseeable prejudice to the rights of the client]; see also Filbin v. Fitzgerald (2012) 211 Cal. App. 4th 154, 170 [even a consensual substitution would have required “some explanation” seventeen days before trial].)

That said, counsel has provided a clear explanation of their reasonable and longstanding efforts to re-contact their client. Counsel states that an irreparable breakdown of the attorney-client relationship has occurred. Specifically, Plaintiff has failed to communicate with counsel at all. Counsel explains that since October 2023, they have been trying to get in contact with Plaintiff, but to no avail. Counsel provides details on the efforts their firm underwent to find and communicate with Plaintiff, including numerous attempted calls to associated phone numbers and letters to known addresses.  On such a record, it is clear that counsel’s withdrawal will not result in prejudice. Rather, prejudice will result from Plaintiff’s refusal to participate in this litigation.

Accordingly, the motion would be GRANTED. The order is effective upon the filing of the proof of service of the order on the client. Until then, counsel remains counsel of record.