Judge: Peter A. Hernandez, Case: 22STCV38615, Date: 2025-01-30 Tentative Ruling

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Case Number: 22STCV38615    Hearing Date: January 30, 2025    Dept: 34

Plaintiff Colette Barris’ Counsel Miles Carlsen’s Motion to be Relieved as Counsel is

GRANTED, subject to the filling of a proposed order within five (5) days of this ruling, and effective upon the filing of proof of service showing service of the signed order.

Background

On December 12, 2022, Plaintiff Colette Barris (“Plaintiff”) filed a complaint against Defendant Kenya Barris (“Defendant”) alleging a cause of action for breach of contract.

On May 31, 2023, Defendant filed an answer to Plaintiff’s complaint.  

On December 31, 2024, Plaintiff’s counsel, Miles Carlsen (“Counsel”), filed: (1) MC-051, Motion to be Relieved as Counsel; (2) Declaration in Support of Motion to be Relieved as Counsel; and (3) Proof of Service. No opposition or other response has been filed.

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.)

Discussion

Counsel’s motion complies with the requirements of California Rules of Court, rule 3.1362, in that Counsel provided notice of motion, motion to be relieved as counsel, and a declaration in support. However, Counsel failed to provide a proposed order granting Counsel’s motion.  

            The declaration states that Counsel has been unable to communicate with Plaintiff and believes that another attorney is representing Plaintiff in this matter. (Carlsen Decl., ¶¶ 2-3.)

            The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above have not been sufficiently met in that Counsel failed to provide a proposed order granting Counsel’s motion. Nevertheless, the court grants the requested withdrawal, conditioned upon the filling of a proposed order, and effective upon the filing of proof of service showing service of the signed order to Plaintiff.

Conclusion

Plaintiff Colette Barris’ Counsel Miles Carlsen’s Motion to be Relieved as Counsel is

GRANTED, subject to the filling of a proposed order within five (5) days of this ruling, and effective upon the filing of proof of service showing service of the signed order.