TENTATIVE RULING

Calendar: 6

Date: 10/04/2024

Case No. 24GDCV00220 Trial Date: None Set  

Case Name: Papelyan v. Alpha Terrace Gardens Homeowners Association, et al. 

MOTION TO BE RELIEVED AS COUNSEL

Moving Party: Elan Zektser, Esq.

Name of Client: Plaintiff Vrezh Papelyan (No Opposition)  

Correct address in proof of service?   

 Client: OK   

 Other parties: N/A

16/+5 day lapse? OK

RELIEF REQUESTED:

Order permitting attorney to be relieved as attorney of record in this action.

GROUNDS FOR MOTION:

Failure of communication  

DECLARATION BY MOVING ATTORNEY:

 Reasons why motion is necessary:    OK

 Address recently confirmed (within last 30 days)

Attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before filing    

PROPOSED ORDER:

Address and phone number of client set forth:   OK

Proper warning: OK

Future dates filled in:    Incomplete  

ANALYSIS:

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 of Civ. Proc., § 284, subd. (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.)   

 

An application to be relieved as counsel must be made on Judicial Council Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order).  (Cal. Rules of Court, rule 3.1362(a), (c), (e).) California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either: 

(A) The service address is the current residence or business address of the client; or 

(B) 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. 

(Cal. Rules of Court, rule 3.1362(1)(A) & (2).) 

 

Counsel Elan B. Zektser (Counsel) declares that his reason for seeking to be relieved is because he has been unable to communicate with plaintiff Vrezh Papelyan (Plaintiff) such that it is no longer possible for Counsel to provide effective representation.  (Form MC-052, Item No. 2; Zektser Decl.)  The Court is satisfied with Counsel’s reason for seeking to be relieved.   

 

The Court notes that Counsel has filed all the required forms.  The moving papers were served on Plaintiff at his last known address by mail.  (Form MC-053; see Form POS-030.) Counsel was unable to locate a more current address after making reasonable efforts to do so within 30 days before filing of the motion to be relieved. (Form MC-052, Item No. 1.) No other parties have appeared in this case. Thus, the Court finds that Counsel has satisfied the requirements of California Rules of Court, rule 3.136(a) and (c)-(e). 

 

The Court notes that the trial date has not been set, so Plaintiff has sufficient time to find new counsel.   

 

The unopposed Motion is, therefore, GRANTED on the CONDITION that “a copy of the signed order must be served on the client and on all parties that have appeared in the case” and that Counsel file such proof of service with the Court within 10 days from the date of this Order pursuant to California Rules of Court 3.1362(e). 

 

Counsel to give notice.

RULING:

UNOPPOSED Motion to be Relieved as Counsel is GRANTED. 

The Court will sign the proposed Order Granting Attorney’s Motion to be Relieved as Counsel-Civil with the following modifications: (1) the material in paragraph 5b will be deleted; and (2) in paragraph 5a, the Order will indicate it becomes effective upon the filing of the proof of service of the signed order upon the client.

As so modified, the Court will sign the Order and counsel will be relieved effective upon the e-filing of the proof of service of the signed order upon the client.