Judge: Randy Rhodes, Case: 20CHCV00518, Date: 2023-03-10 Tentative Ruling
Case Number: 20CHCV00518 Hearing Date: March 10, 2023 Dept: F51
Dept. F-51¿
Date: 3/10/23
Case #20CHCV00518
MOTION TO BE
RELIEVED AS COUNSEL
Motion filed: 2/1/23
MOVING ATTORNEY: Colin K. McCarthy (“Counsel”)
CLIENT: Defendant Mark Cruz, an individual
(“Defendant”)
NOTICE: OK
RELIEF REQUESTED: An order relieving Counsel as attorney
of record for Defendant.
TENTATIVE RULING: The motion is granted.
In a civil action, an attorney may
move to be relieved as counsel at any time during the proceedings after giving
notice to his client. (Code Civ. Proc. § 284.) The moving attorney shall file
with his motion: (1) a notice of the motion, directed to the client using
Judicial Council form MC-051; (2) a declaration in support of the motion using
Judicial Council form MC-052; and (3) a proposed order granting the motion; all
to be served on the client and all other parties who have appeared in the case.
(Cal. Rules of Court, rule 3.1362.) If the notice is served on the client by
mail, the motion must also be supported 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..” (Id., subd. (d)(1).)
In his declaration, the moving
attorney is required to 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).” (Id., subd. (c).) The client must be provided no
less than five days’ notice before hearing on the motion. An attorney may
withdraw from a case when it can be accomplished without undue prejudice to the
client’s interests. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) On
the other hand, if the attorney withdraws at a critical point in the action,
thereby prejudicing his client, he has violated his ethical duties. (Ibid.)
Here, Counsel filed and served this
motion to be relieved as counsel for Defendant on 2/1/23. Counsel served his
client by mail and electronic service, and has filed a declaration stating that
the client’s mailing address was verified by both telephone and conversation.
(Decl. of Colin K. McCarthy, ¶ 3b.) Counsel also filed a proof of service
showing that the requisite documents were served on both all parties, and on
Defendant, on 1/20/23.
Counsel properly filed an
accompanying notice of the motion using MC-051, a declaration in support of his
motion using form MC-052, and a proposed order granting the motion. In his
MC-052 declaration, Counsel cited a breakdown of the attorney-client
relationship making it “impossible for our firm to continue representing the
client.” (McCarthy Decl., ¶ 2.) The next hearings in this action are a trial
readiness conference and status conference re: forensic accountant, both
scheduled for 3/15/23. No trial date has been set. Therefore, Counsel’s
withdrawal does not raise the risk of unduly prejudicing his client.
Accordingly, the statutory
requirements for the motion have been satisfied, and Counsel’s motion to be
relieved as counsel for defendant Mark Cruz is GRANTED.