Judge: Michael C. Kelley, Case: 19AVCV00737, Date: 2022-09-27 Tentative Ruling

Case Number: 19AVCV00737    Hearing Date: September 27, 2022    Dept: A15

Background

This action for equitable relief was filed on October 4, 2019 by Plaintiff City of Palmdale (“Plaintiff”) against Defendant Jose Barrera (“Defendant”) regarding the property located at 1056 West Avenue N, in the city of Palmdale (the “Property”). (Compl. ¶ 1.) Plaintiff alleges Defendant is the owner of the Property and that, since 2015, Defendant has been using and constructing on the Property in illegal manners. (Id., ¶¶ 7-12.)

Plaintiff alleges it has conducted investigations, contacted Defendant, and issued citations, but Defendant has not abated his illegal use of the Property. (Compl. ¶¶ 8-12.) Plaintiff therefore filed the operative Complaint, alleging three causes of action for (1) public nuisance, (2) Municipal Code violations, and (3) declaratory and injunctive relief.

On November 27, 2019, Defendant filed an answer through his attorney, Gilbert Gutierrez. Mr. Gutierrez has now filed the instant Motion to Be Relieved as Counsel. Neither Defendant nor Plaintiff has filed an opposition.

Discussion

Motion to be Relieved as Counsel— Code of Civil Procedure section 284(2) permits either the attorney or client, after notice from one to the other, to seek an order from the Court to change counsel. The attorney seeking relief under Section 284(2) must first direct to the client a notice of motion and motion to be relieved as counsel on form MC-051. (Cal. Rules of Court, rule 3.1362(a).) Second, the attorney must fill out form MC-052, and state in general terms why a motion to be relieved as counsel is being brought under Section 284(2) instead of a consensual motion under section 284(1). (Cal. Rules of Court, rule 3.1362(c).) Third, the notice, declaration, and proposed order must be served on the client and on all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).)

If it is served by mail, it must contain a declaration stating facts showing that the service address is the current residence or business address of the client, meaning it has been confirmed within 30 days before filing the motion. (Cal. Rules Court, rule 3.1362(d).) Finally, the proposed order must be prepared on form MC-053, and must be lodged with the court, with the moving papers. (Cal. Rules of Court, rule 3.1362(e).) “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.” (Ibid.)

The motion should be denied if withdrawal would prejudice the client, cause undue delay in the proceeding, or cause injustice. (Rules Prof. Conduct, rule 1.16(d); Mandell v. Super. Ct. (1977) 67 Cal.App.3d 1, 4.) A breakdown in the attorney-client relationship is grounds for withdrawal. (Estate of Falco (1987) 188 Cal.App.3d 1004, 1014.) An attorney is not limited to withdrawing from a case for cause and may withdraw when withdrawal can be accomplished without undue prejudice to the client. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

Here, Mr. Gutierrez is moving to be relieved under Section 284(2). He has correctly completed and filed MC-051, and sent a Notice of Continuance to Defendant after the Court, on its own motion, continued the original hearing date.

He has also filed MC-052, and attests therein that he is moving to be relieved as counsel because of a breakdown in the attorney-client relationship. Specifically, he attests that Defendant has ignored his correspondence, such that he is unable to effectively represent Defendant.

He has also served the notice, declaration, and proposed order (correctly filed on MC-053) on Defendant and Plaintiff.

However, while Mr. Gutierrez attests that he has served Defendant by mail at Defendant’s last known address, Mr. Gutierrez has not shown that he confirmed whether or not this address is current. California Rules of Court, rule 3.1362(d) requires the moving attorney to confirm in some manner, at least 30 days before filing the motion to be relieved of counsel, whether the last known address is a current address. Paragraph 3b of MC-052 provides the space for the attorney to do so. Mr. Gutierrez did not complete this paragraph, nor has he provided the information elsewhere. Therefore, he has not complied with the requirements of Rule 3.1362(d).

Conclusion