Judge: Peter A. Hernandez, Case: 23STCV24638, Date: 2024-12-30 Tentative Ruling

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Case Number: 23STCV24638    Hearing Date: December 30, 2024    Dept: 34

Defendant’s Counsel Roberta A. Krasney’s Motion to be Relieved as Counsel is DENIED.

Background

On October 10, 2023, Plaintiff Abraham Carmona (“Plaintiff”) filed a complaint for partition by sale of real property against Defendant Hilda Mendoza (“Defendant”).

On November 29, 2023, Defendant filed an answer.

On April 16, 2024, the court denied Plaintiff's Motion for Summary Judgment.

On May 6, 2024, the court granted Defendant’s Motion for Leave to Amend Defendant’s answer.

On November 6, 2024, Defendant’s counsel, Roberta A. Krasney, (“Counsel”), filed this Motion to be Relieved as Counsel. On November 25, 2024, Plaintiff filed an opposition. No reply 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 does not comply with the requirements of California Rules of Court, rule 3.1362, in that Counsel fails to provide form MC-051, Motion to Be Relieved as Counsel; form MC-052, Declaration in Support; and proposed order.  (See C.R.C. No. 3.1362(a) [“A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 281(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).”].)

Counsel declares that there was an irremediable breakdown in communication with Defendant to the extent that it is impossible for counsel to represent Defendant in the present matter. (Motion at p. 3, Krasney Decl., ¶ 2.)

In opposition, Plaintiff contends that a continuance of the current trial set for January 21, 2025, as a result of Counsel’s motion will be prejudicial for Plaintiff. (Opp., at p. 2.)

As such, the court determines that the requirements of Rules of Court Rule 3.1362 enumerated above have not been sufficiently met by Counsel. Although Counsel may have sufficient grounds for withdrawal, Counsel must comply with the requirements mentioned above. Additionally, the court must also consider that trial is scheduled for January 21, 2025, which is less than a month away. There is a high risk of prejudice to Defendant and Plaintiff by Counsel’s withdrawal.

Conclusion