Judge: Michael P. Linfield, Case: 21STCV36274, Date: 2023-08-15 Tentative Ruling

Case Number: 21STCV36274    Hearing Date: August 22, 2023    Dept: 34

SUBJECT:         Motion to be Relieved as Counsel

Moving Party:  Plaintiff’s Counsel Matthew C. Heerde

Resp. Party:    None

The Motion to be Relieved as Counsel is GRANTED.

BACKGROUND:

On October 1, 2021, Plaintiffs Digital Marketing Advisors and Zachary Urbina filed their Complaint against Defendants Paulie2397, My.rna9809, Anastasie7357, Jannelle881, Selena_6642, Kathlin685, Corny3616, St.arr7698, 286532_Brittany_994717, Elodiachurches.294.227, Genni9397, and StevenRodriguez5512886 (“the Instagram Defendants”). The causes of action arise from harm that has allegedly occurred on the Internet to Plaintiff’s interests due to Defendants’ alleged actions.

On February 3, 2023, Plaintiffs filed their First Amended Complaint (FAC). Among other things, the FAC adds a defendant (Alexander Wegescheidt) and a cause of action (intentional infliction of emotional distress).

On February 18, 2023, Plaintiffs filed their Second Amended Complaint (SAC).

On July 25, 2023, the Court dismissed with prejudice this action as to the Instagram Defendants.

On July 28, 2023, Plaintiffs’ Counsel Matthew Heerde filed: (1) MC-051, Motion to be Relieved as Counsel; (2) MC-052, Declaration; and (3) MC-053, Proposed Order. This Motion is directed at Plaintiff Zachary Urbina.

        On August 15, 2023, the Court granted Plaintiffs’ Counsel’s Motion to be Relieved as Counsel regarding Plaintiff Digital Marketing Advisors.

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’s Motion to be Relieved as Counsel 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.

The declaration states: (1) that Plaintiffs have been in breach of a material term of Counsel’s retainer agreement; (2) that the material term has to do with payment of fees; (3) that the firm notified Plaintiffs by email in April 2023 that the firm would withdraw unless the breach was adequately addressed; and (4) that despite Counsel requested consent to a withdrawal, Plaintiffs have not consented. (Decl., Item 2.)

Trial has not yet been scheduled in this matter, despite this case being filed nearly two years ago. Plaintiff Urbina has not filed an opposition to this Motion to be Relieved as Counsel.  Plaintiff has sufficient time to find new counsel if he wishes to do so.

III.     Conclusion

The Motion to be Relieved as Counsel is GRANTED.