Judge: Michael P. Linfield, Case: 21STCV30781, Date: 2023-02-07 Tentative Ruling

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Case Number: 21STCV30781    Hearing Date: February 7, 2023    Dept: 34

SUBJECT:         Motion to be Relieved as Counsel

Moving Party:  Plaintiff’s Counsel Alex Valenzuela

Resp. Party:    None

SUBJECT:         Motion to Dismiss

Moving Party:  Defendant PIH Health Good Samaritan Hospital

Resp. Party:    None

Counsel Valenzuela’s Motion to be Relieved as Counsel is GRANTED.

Defendant’s Motion to Dismiss is GRANTED. The case is dismissed without prejudice.

BACKGROUND:

On August 19, 2022, Plaintiff Ashley Blanton filed her Complaint against Defendant PIH Health Good Samaritan Hospital on causes of action for general negligence, premises liability, professional negligence, breach of fiduciary duty, lack of informed consent, and gross negligence (willful misconduct).

On January 20, 2022, the Court sustained in part Defendant’s Demurrer to Plaintiff’s Complaint. The Court sustained the Demurrer with leave to amend the Complaint as to the first, fourth, fifth, and sixth causes of action. The Court overruled the Demurrer as to the Complaint’s second cause of action.

On January 10, 2023, Plaintiff’s Counsel filed: (1) Motion to be Relieved as Counsel; (2) Declaration; (3) Proposed Order; and (4) Proof of Service.

On January 13, 2023, Defendant filed: (1) Motion to Dismiss; and (2) Proposed Order.

On January 26, 2023, Defendant filed Non-Opposition to Defendant’s Motion [to] Dismiss.

No opposition or other response has been filed to either of the motions.

ANALYSIS:

I.           Motion to be Relieved as Counsel

A.      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.)

B.      Discussion

Counsel Valenzuela’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 deceased since February 2022 and that Counsel does not believe that Plaintiff’s next of kin are able to represent the estate in this matter. (See Declaration, Item 2.)

The motion has not been opposed by any party to the case.

As Trial is scheduled for less than one month from now, there appears to be a significant risk of prejudice to Plaintiff’s estate were the Court to allow Counsel to be relieved. However, nothing has happened in this case for more than a year, and the Court does not have any evidence before it that anyone is actually willing and able to prosecute this action on behalf of Plaintiff’s estate. That responsibility does not fall to Plaintiff’s Counsel.

 The Court GRANTS Counsel Valenzuela’s Motion to be Relieved as Counsel.

C.      Conclusion

Counsel Valenzuela’s Motion to be Relieved as Counsel is GRANTED.

II.        Motion to Dismiss

A.      Legal Standard

Code of Civil Procedure section 581 lists a variety of ways in which an action may be dismissed. At the end of the list is a catch-all subdivision, which states that “[t]he provisions of this section shall not be deemed to be an exclusive enumeration of the court’s power to dismiss an action or dismiss a complaint as to a defendant.” (Code Civ. Proc., § 581, subd. (m).)

B.      Discussion

Defendant moves the Court to dismiss this action pursuant to Code of Civil Procedure section 581, subdivision (m). (Motion, p. 4:9–10.) Defendant argues that such relief is appropriate given that Plaintiff passed away in February 2022, no individual is willing to step into Plaintiff’s shoes to continue prosecuting this case, and Trial is coming up on February 27, 2023. (Motion, pp. 3:12–16, 4:14–21.)

The Court notes that on January 20, 2022, it sustained a demurrer to five of the causes of action of the complaint and gave Plaintiff 20 days leave to amend.  No First Amended Complaint was ever filed.

Plaintiff’s counsel filed a pleading stating that “Plaintiff has no opposition to Defendant’s Motion to Dismiss.”  (Statement of Non-Opposition, filed 1/26/2023.)

The Court GRANTS Defendant’s Motion to Dismiss.

C.      Conclusion

Defendant’s Motion to Dismiss is GRANTED.