Judge: Ronald F. Frank, Case: 21STCV39033, Date: 2022-12-14 Tentative Ruling

Case Number: 21STCV39033    Hearing Date: December 14, 2022    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 December 14, 2022¿¿ 

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CASE NUMBER:                  21STCV39033

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CASE NAME:                        Iisha Byas, et al. v. Property Management Association Inc., et al.

TRIAL DATE:                        None set¿ 

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

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Tentative Ruling:                  (1) GRANTED 

I.                    Background  

This action arises out of a wrongful death claim between Plaintiffs, Iisha Byas, an individual, and Iisha Byas, as successor-in-interest to Ceylon K.C. Byas, Decedent and Defendants Property Management Associates, Inc., Sarah Bruce, and Three Rainbows, LLC, and DOES 1 through 50.

On August 1, 2022, Plaintiffs’ counsel, Raymond D. McElfish (“McElfish”), filed the instant Motion to be Relieved as Counsel for Plaintiffs (“Motion”).  No opposition was filed.  A trial date has not yet been set and a CMC is scheduled for the same December 14, 2022 date as the hearing on the Motion to Withdraw.

II.                 Legal Standard & Discussion  

Code of Civil Procedure § 284 states that “the attorney in an action…may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney…; (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; CRC 3.1362.)  The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably.  (See Mandell v. Superior (1977) 67 Cal.App.3d 1, 4; Lempert¿v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.) 

In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court 3.1362.  The motion must be made using mandatory forms: Notice of Motion and Motion to be Relieved as Counsel directed to the client – Civil (MC-051); Declaration “stating in general terms and without compromising the confidentiality of the attorney-client relationship” reasons the motion was brought (MC-052); and a Proposed Order (MC-053).  (Ibid.)  The forms must be filed and served on all parties who have appeared in the case.  (Ibid.) 

Here, Plaintiff’s counsel, Raymond D. McElfish (“McElfish”) moves the Court to relieve him as attorney of record for Plaintiff. McElfish properly filed a Notice of Motion, Motion to be Relieved as Counsel, Declaration, and Proposed Order in accordance with Cal. Rules of Court 3.1362.  On August 1, 2022, all forms for the pending motion were served on Plaintiff and Defendants by mail.  On August 1, 2022, proof of service for said documents was filed with the Court. 

In his declaration he states that Plaintiff was given the time and opportunity to sign a substitution of attorney but she declined.  McElfish asserts that there has been an “irremediable breakdown” in the attorney-client relationship, including a fundamental disagreement regarding the course of the case.  Other than the CMC on December 14, 2022, the only matter on calendar is a motion to strike portions of the amended complaint set for hearing on January 13, 2023.  Trial has not yet been set. 

Since Plaintiffs’ counsel has complied with all procedural requirements in filing a motion to be relieved as counsel and because the withdrawal would not cause an injustice or undue delay in proceedings, the Court finds that withdrawal of McElfish as attorney of record for Defendant can be accomplished without undue prejudice to the Plaintiffs’ interests. Mr. McElfish will need to advise his clients of the upcoming motion in his notice of the ruling on this motion.

III.              Conclusion & Order 

For the foregoing reasons, McElfish’s Motion to Be Relieved As Counsel is GRANTED and the Order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on Plaintiff and Defendant has been filed with the court.” (Id.) 

Mr. McElfish is ordered to give notice.