Judge: Michael P. Linfield, Case: 21STCV04559, Date: 2023-03-02 Tentative Ruling
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Case Number: 21STCV04559 Hearing Date: March 2, 2023 Dept: 34
SUBJECT: Motion to be
Relieved as Counsel
Moving Party: Plaintiff’s
Counsel Gregory T. Babbitt
Resp. Party: None
Counsel Babbitt’s Motion to be
Relieved as Counsel is GRANTED.
Counsel is to inform Plaintiff that
trial is scheduled for June 12, 2023; when the Court continued the trial at the
parties request on December 13, 2022, it stated that there would be no further
continuances.
BACKGROUND:
On February 4, 2021,
Plaintiff Kymberlee Michelee Nelson filed her Complaint against Defendants La
Playita Auto Sales, Inc. and Hudson Insurance Company. This case regards Plaintiff’s
purchase of a car from Defendants that had allegedly previously been rented and
damaged.
On January 24, 2022,
by request of Plaintiff, the Clerk’s Office dismissed with prejudice Hudson
Insurance Company from the Complaint.
On August 10, 2022,
Plaintiff filed her First Amended Complaint against Defendant.
On January 26, 2023,
Plaintiff’s Counsel, Gregory T. Babbitt, filed MC-051, Motion to be Relieved as
Counsel. Counsel Babbitt concurrently filed: (1) MC-052, Declaration; and (2)
MC-053, Proposed Order.
On January 27, 2023,
Plaintiff filed her Second Amended Complaint.
No opposition or
other response has been filed to the Motion.
ANALYSIS:
I.
Legal Standard
An attorney moving to be relieved
as counsel under California Code of Civil Procedure section 284(2) must meet
the requirements set out in California Rules of Court, rule 3.1362.
To comply with rule 3.1362, the
moving party must submit the following forms: (1) Notice of Motion and Motion
to be Relieved as Counsel; (2) Declaration in Support of Attorney's Motion to
be Relieved as Counsel; and (3) Order Granting Attorney's Motion to be Relieved
as Counsel. (Cal. Rules of Court, rule 3.1362(a), (c), (e).)
The moving party must serve the
aforementioned forms on the client and all other parties who have appeared in
the case. (Cal. Rules of Court, rule 3.1362(d).) Further, when the client is
served by mail, the attorney's declaration must show that the client's address
was confirmed within the last 30 days and how it was confirmed. (Id.)
Absent a showing of resulting
prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268
Cal.App.2d 398, 406.)
II.
Discussion
Counsel Babbitt’s Motion complies
with all of the requirements of California Rules of Court, rule 3.1362, in that
Counsel provided notice of motion and motion to be relieved as counsel;
proposed order granting attorney’s motion to be relieved as counsel; and
declaration in support of the motion to be relieved as counsel. Additionally,
the declaration states that Counsel’s client has been served by mail at their
last known address, that Counsel has been unable to communicate with the
client, and that Counsel also sent the filing to client by email and text
message. (See Declarations, No. 3(a)(2) and (b)(1)(d).)
The motion has not been opposed by
any party to the case.
If
Counsel is allowed to leave this representation, there appears to be some risk
of prejudice to Plaintiff because Trial is scheduled for approximately three
months from now. However, the Declaration indicates that Counsel has not been
able to communicate with the client or to carry out the representation. It is
not Counsel’s responsibility to prosecute this matter alone, and Plaintiff
still has enough time to find new counsel.
The Court GRANTS Counsel Babbitt’s Motion to
be Relieved as Counsel.
III. Conclusion
Counsel Babbitt’s Motion to be
Relieved as Counsel is GRANTED.