Judge: Michael P. Linfield, Case: 23STCV31081, Date: 2024-04-23 Tentative Ruling

Case Number: 23STCV31081    Hearing Date: April 23, 2024    Dept: 34

SUBJECT:        Motion to be Relieved as Counsel

Moving Party: Plaintiff’s Counsel Roger E. Naghash

Resp. Party:    None

The Motion to be Relieved as Counsel is GRANTED.

BACKGROUND:

On December 19, 2023, Plaintiff Pamela Buzzanco filed her Verified Complaint against Defendant Merrill on causes of action of breach of fiduciary duty and constructive fraud, conversion and embezzlement, violation of Penal Code section 496, and declaratory and injunctive relief.

On March 22, 2024, Plaintiff’s Counsel, Roger E. Naghash, filed: (1) MC-051, Motion to be Relieved as Counsel; (2) MC-052, Declaration; and (3) MC-053, Proposed Order.

No opposition or other response has been filed to the motion.

ANALYSIS:

I.          Legal Standard

“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.)

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. (Ibid.) 

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.)

I.          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 only states that Plaintiff and Plaintiff’s Counsel have had a breakdown in communication. (MC-052, Item 2.)

There is a significant risk of prejudice to Plaintiff by the proposed withdrawal. Defendant has already filed its Demurrer to the Verified Complaint.

        However, Defendant has the burden of proof on the Demurrer, and trial has not yet been scheduled in this matter. If Plaintiff acts diligently, she will have enough time to find Counsel to defend against the Demurrer and to assist her with prosecuting this matter.

II.       Conclusion

The Motion to be Relieved as Counsel is GRANTED.