Judge: Robert B. Broadbelt, Case: 22STCV01197, Date: 2023-11-16 Tentative Ruling

Case Number: 22STCV01197    Hearing Date: December 21, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Ben Perlmutter

RESPONDING PARTY:       Unopposed

Motion to be Relieved as Counsel for Plaintiff

The court considered the moving papers filed in connection with this motion.  No opposition papers were filed.

DISCUSSION

Ben Perlmutter (“Plaintiff’s Counsel”) moves to be relieved as counsel of record for plaintiff Nestor Martinez, individually and as successor in interest to Juan Carlos Martinez Almazan (“Plaintiff”).

“The question of granting or denying an application of an attorney to withdraw as counsel (Code Civ. Proc., § 284, subd. 2) is one which lies within the sound discretion of the trial court ‘having in mind whether such withdrawal might work an injustice in the handling of the case.’”¿ (People v. Prince (1968) 268 Cal.App.2d 398, 406 [internal quotations omitted].)¿ The court should also consider whether the attorney’s “withdrawal can be accomplished without undue prejudice to the client’s interests.”¿ (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)¿¿¿¿¿¿¿¿¿ 

For a motion to be relieved as counsel under Code of Civil Procedure section 284, subdivision (2), California Rules of Court, rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel -- Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284, subdivision (2) is brought instead of filing a consent under Code of Civil Procedure section 284, subdivision (1) (made on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel -- Civil form (MC-052)); (3) service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel -- Civil form (MC-053)).¿ 

The court finds that Plaintiff’s Counsel has served the moving papers (1) on Plaintiff by mail at Plaintiff’s last known address, which Plaintiff’s Counsel has confirmed within the past 30 days is current, and (2) on the other parties who have appeared in this action by email.  (MC-052, ¶ 3, subds. (a)(2), (b)(1)(a); Nov. 16, 2023 Proofs of Service].)  

However, Plaintiff’s Counsel has not filed a valid proof of service establishing that Plaintiff has been served with notice of the court’s November 16, 2023 order continuing the hearing on this motion.  Plaintiff’s Counsel filed, on November 16, 2023, a Notice of Ruling that states that the court continued the hearing on this motion to December 21, 2023.  (Nov. 16, 2023 Notice of Ruling, p. 2, ¶ 3.)  While the proof of service attached to the notice of ruling states that it was served “by e-mail or electronic transmission” on, inter alia, Plaintiff, it does not include Plaintiff’s email address.  (Nov. 16, 2023 Notice of Ruling, pp. 4:18-21, 5:22-24.)  Thus, the proof of service is incomplete and therefore defective as to Plaintiff since it does not list the email address to which the Notice of Ruling was served.  

The court therefore exercises its discretion to continue the hearing on this motion to ensure that Plaintiff has received notice of the new hearing date.

The court orders that the hearing on Ben Perlmutter’s motion to be relieved as counsel is continued to January 22, 2024, at 10:00 a.m., in Department 53.

The court orders Ben Perlmutter (1) to serve a notice of this ruling on plaintiff Nestor Martinez and all other parties who have appeared in this action, and (2) to file a valid proof of service of the notice of ruling with the court by no later than December 22, 2023.

IT IS SO ORDERED.

DATED:  December 21, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court