Judge Ronald F. Frank, Case 19TRCV00989 2023-03-29 Tentative Ruling

Judge: Ronald F. Frank, Case: 19TRCV00989, Date: 2023-03-29 Tentative Ruling

Case Number: 19TRCV00989 Hearing Date: March 29, 2023 Dept: 8

Tentative Ruling¿

¿¿

HEARING DATE: March 29, 2023

¿¿

CASE NUMBER: 19TRCV00989

¿¿

CASE NAME: DML Enterprises, LLC v. Augustine Moreno and Robert Pedersen

¿¿

MOVING PARTY: Richard E. Williamson and Robert C. Hayden, counsel for Defendant Robert Pedersen

¿¿

RESPONDING PARTY: DML Enterprises, LLC

¿¿

TRIAL DATE: TBD

¿¿

MOTION:¿ (1) Motion to be Relieved as Defendant’s Counsel

Tentative Ruling: (1) Granted.

¿¿

I. BACKGROUND¿¿

¿¿

A. Factual¿¿

This is a dispute between two neighbors: Cross-Defendant David Leeper (“Leeper”) and his entity, Plaintiff DML Enterprises, LLC (“Plaintiff”) and Defendant and Cross-Complainant Robert Pedersen (“Pedersen”). Plaintiff alleges that Pedersen’s home has slid onto Plaintiff’s property because of a slow-moving landslide. (Complaint ¶¶ 1-3.) Pedersen alleges Leeper has trespassed on his property and walked into his home uninvited and unannounced on multiple occasions. (Cross-Complaint ¶ 18.) Leeper is representing himself pro per and Ezer Williamson Law is representing Pedersen. Plaintiff’s action is also asserted against Defendant Augustin Moreno (“Moreno”), the alleged contractor working at the property owned by Pedersen.

On August 3, 2022, Pedersen died. His daughter, Constance Kellogg (“Kellogg”), has succeeded him as trustee of the Pedersen family trusted dated March 9, 2018. (Decl. Hayden ¶ 2.) Kellogg has not retained Ezer Williamson Law to represent her in this lawsuit. (Decl. Hayden ¶ 2.)

B. Procedural

On February 27, 2023, Richard E. Williamson (“Williamson”) and Robert C. Hayden (“Hayden”) of Ezer Williamson Law, APC (“Ezer Williamson”) (collectively, “Counsel”) moved to be relieved as counsel for Pedersen. Plaintiff has not opposed the motion. The Court notes on January 5, 2023, it granted Counsel’s motion to be relieved as counsel for Moreno, the other named defendant in the action who was also represented by Counsel.

A status conference will occur on June 7, 2023. (Minute Order Jan. 5.) No trial date has been set.

¿II. MEET AND CONFER

Not applicable.

¿¿

¿III. ANALYSIS¿

A. 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.)

Under California Rules of Court, rule 3.1362, an attorney moving to be relieved as counsel must do the following:

1. File 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. Submit 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(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel -- Civil form (MC-052));

3. Serve 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. Lodge a proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to be Relieved as Counsel -- Civil form (MC-053)).

“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.)

B. Discussion

As a preliminary matter, Counsel properly filed a notice of motion and motion directed to Pedersen and Kellogg, successor trustee of the Pedersen family estate. Generally, a cause of action for or against a person is not lost by reason of the person’s death but survives subject to the applicable limitations period. (Code Civ. Proc. § 377.20.) A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest. (Code Civ. Proc. § 377.30.)

Additionally, Counsel submitted a declaration adequately stating why a motion is brought under Code of Civil Procedure section 284(2). Counsel properly served the motion, declaration, and proposed order and properly lodged the proposed order with the court.

No undue prejudice will result to client in granting the motion. As of January 5, 2023, Plaintiff’s four motions to compel further discovery responses were placed off calendar. (Minute Order Jan. 5.) Additionally, there are no other upcoming hearings before the status conference on June 7, 2023. Further, no trial date has been set.

Thus, Counsel’s motion is granted.

IV. CONCLUSION¿¿

¿¿

Based on the foregoing, this court grants Counsel’s motion to be relieved as defense counsel for Pedersen. Counsel must give notice to the Estate and to Ms. Kellogg.