Judge: Michelle Williams Court, Case: 20STCV11536, Date: 2022-10-05 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 74 before 8:30 the morning of the hearing. The email address is smcdept74@lacourt.org. Please do not call the court to submit on the tentative.

IF THE DEPARTMENT DOES NOT RECEIVE AN EMAIL INDICATING THE PARTIES ARE SUBMITTING ON THE TENTATIVE RULING AND THERE ARE NO APPEARANCES AT THE HEARING, THE MOTION WILL BE PLACED OFF CALENDAR.

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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: 20STCV11536    Hearing Date: October 5, 2022    Dept: 74

20STCV11536           CHRISTIN IVANOVSKI vs MANNY MIJARES

Motion to be Relieved as Counsel for Defendant Emmanuel Mijares

TENTATIVE RULING:  The motion is taken OFF CALENDAR.

Background

On March 20, 2020, Plaintiff Christin Ivanovski filed this action against Defendant Manny Mijares asserting claims for breach of contract and unjust enrichment. The complaint alleged Defendant Mijares breached the parties’ agreement for music consulting services.

On September 22, 2022, the Court held the Final Status Conference. Neither Defendant nor his counsel appeared. The Court set an Order to Show Cause Re: striking defendant's answer for the October 3, 2022 trial date and stated “[i]f there is no appearance by defendant on the date of trial, defendant's answer will be stricken.”

Motion to be Relieved as Counsel

On August 9, 2022, Stephan Chichportich of SJOC Law, LLP, counsel for Defendant, filed a motion to be relieved as counsel.

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 Defendant breached the attorney client agreement. (Chichportich Decl. ¶ 2.) Accordingly, counsel stated a proper basis for withdrawal. (Cal. R. Prof. Cond., rule 1.16(b)(5).) Counsel’s initial motion was properly served and accompanied by the required documents.

However, when the motion was filed, counsel noticed the hearing for August 29, 2022. Counsel rescheduled the motion through the Court Reservation System to October 5, 2022. There is no evidence that counsel served Defendant or the opposing parties with notice of the continued hearing date. (Cal. R. Ct., rules 3.1110(b), 3.1362; Code Civ. Proc. §§ 1005; 1010.) Accordingly, the Court shall not hear the motion without adequate and proper notice to all parties entitled thereto. (See generally Edward W. v. Lamkins (2002) 99 Cal.App.4th 516, 532 (“The primary purpose of procedural due process is to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner.”) quoting People v. Hansel (1992) 1 Cal.4th 1211, 1219.) The motion is therefore taken OFF-CALENDAR.