Judge: Michelle Williams Court, Case: 19STCV34975, Date: 2022-09-12 Tentative Ruling

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In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind: The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record. Oral argument is not an opportunity to simply repeat that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated. If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.


 


 

Case Number: 19STCV34975    Hearing Date: September 12, 2022    Dept: 74

19STCV34975           MARTHA ESPINOZA SUAREZ vs WESLEY KAWECKI

Plaintiff’s Counsel’s Motion to be Relieved

TENTATIVE RULING:  The motion is taken OFF-CALENDAR for lack of proper service. Everardo Valencia’s Motion to be Relieved as Counsel for Plaintiff Elizabeth Suarez, set for hearing on September 15, 2022, is hereby advanced to this date and taken OFF-CALENDAR as well.

Background

On October 1, 2019, Plaintiffs Martha Espinoza-Suarez and Elizabeth Suarez filed a complaint against Wesley Kawecki, Nora Kawecki, and Alicia Kawecki. The complaint asserted causes of action for: (1) discrimination in violation of FEHA, (2) retaliation in violation of FEHA, and (3) discrimination of the basis of national origin in violation of FEHA.

On June 23, 2021, the Court sustained Defendants’ demurrer to the first cause of action with leave to amend. Plaintiffs did not file an amended complaint.

On March 24, 2022, the Court denied attorney Valencia’s first motion to be relieved as counsel for Plaintiffs Martha Espinoza Suarez and Elizabeth Suarez.

Motion to be Relieved as Counsel

On August 12, 2022, attorney Everardo Vargas Valencia filed a renewed motion to be relieved as counsel for Plaintiff Martha Espinoza-Suarez.

The Court notes a second motion to be relieved as counsel for Plaintiff Elizabeth Suarez is set for hearing on September 15, 2022.

Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc., § 284(2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) Further, under such discretion to allow an attorney to withdraw, the motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

“A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil (form MC-051).” (Cal. R. Ct. 3.1362(a).) “Notwithstanding any other rule of court, no memorandum is required to be filed or served with a motion to be relieved as counsel.” (Cal. R. Ct. 3.1362(b).) “The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).” (Cal. R. Ct. 3.1362(c).)

“The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service or mail. If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either: (1) The service address is the current residence or business address of the client; or (2) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. As used in this rule, ‘current’ means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.” (Cal. R. Ct. 3.1362(d).)

“The proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil (form MC-053) and must be lodged with the court with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. 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.” (Cal. R. Ct. 3.1362(e).)

Discussion

Counsel seeks to be relieved on the grounds that there are irreconcilable differences between counsel and Plaintiff because “Plaintiff filed a bar complaint against [counsel] for a matter in San Bernardino County.” (Valencia Decl. ¶ 2.) Pursuant to California Rules of Professional Conduct, rule 1.16(b)(4), an attorney may withdraw “when the client . . . renders it unreasonably difficult for the lawyer to carry out the representation effectively.” Additionally, a personality clash between the client and attorney may be a sufficient ground for relief. (See also Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1014.) Counsel stated a proper basis for withdrawal.

However, counsel failed to demonstrate proper service of the motion. The motion is not accompanied by a proof of service. The accompanying declaration states “[a]ttorney has . . . served the client by mail at the client's last known address with copies of the motion papers served with this declaration.” (Valencia Decl. ¶ 3(a).) This is not a sufficient proof of service as it does not contain any of the information or language required by statute. (See Code Civ. Proc. § 1013a.) Moreover, when service is attempted by mail in connection with a motion to be relieved, “Code of Civil Procedure section 1011(b) applies.” (Cal. R. Ct., rule 3.1362(d).) If, as here, the client’s address is known, Code of Civil Procedure section 1011(b) requires an attempt at personal service before service by mail is authorized. Counsel failed to demonstrate an attempt at personal service and therefore has not demonstrated compliance with Code of Civil Procedure section 1011(b).

The motion is therefore taken OFF-CALENDAR.

The Court notes the motion related to Plaintiff Elizabeth Suarez set for hearing on September 15, 2022 suffers from the same defects. Accordingly, that motion is hereby advanced to this date and taken OFF-CALENDAR as well.