Judge: Serena R. Murillo, Case: 20STCV02395, Date: 2022-12-13 Tentative Ruling
Case Number: 20STCV02395 Hearing Date: December 13, 2022 Dept: 29
TENTATIVE
Motion
to be Relieved as Counsel filed by Alan C. Brown of Law Offices of Day, Day
and Brown is DENIED, without prejudice.
Legal Standard
“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.’ [Citation.]” (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. Sturdivant (1994) 21 Cal.App.4th
904, 915.)
California Rules of Court, rule
3.1362 requires that the following be submitted in support of an attorney’s
Motion to Be Relieved as Counsel pursuant Code of Civil Procedure section 284,
subdivision (2): (1) a notice of motion and motion directed to the client (made
on Notice of Motion and Motion to Be Relieved as Counsel—Civil (Judicial
Council 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 Declaration in Support of Attorney’s Motion to Be
Relieved as Counsel—Civil (Judicial Council Form, MC-052)); (3) a proof of
service evidencing 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) a proposed order relieving counsel (prepared on Order Granting
Attorney’s Motion to Be Relieved as Counsel—Civil (Judicial Council Form,
MC-053)). (Cal. Rules of Court, rule
3.1362, subd. (a), (c), (d), (e).)
Discussion
Alan C. Brown
of Law Offices of Day, Day and Brown (hereinafter, “Plaintiff’s
Counsel”) presently moves to be relieved as counsel of record for Plaintiff
Hernan Nieves (hereinafter, “Plaintiff Nieves”).
Following
review of Plaintiff’s Counsel’s Motion to be Relieved as Counsel (“Motion”),
the Court concludes Plaintiff’s Counsel’s Motion may not be granted at this
juncture due to Plaintiff’s Counsel’s failure to comply with the whole of the necessary
requirements outlined within California Rules of Court, rule 3.1362. (Cal. Rules of Court, rule 3.1362.)
Preliminarily,
the Court observes Plaintiff’s Counsel’s Motion does comply with a portion of
the requisites set forth within California Rules of Court, rule 3.1362. (Cal. Rules of Court, rule 3.1362.) Plaintiff’s Counsel has properly filed a
Notice of Motion and Motion to Be Relieved as Counsel (MC-051), Declaration in
Support of Attorney’s Motion to Be Relieved as Counsel (MC-052), and Proposed
Order Granting Attorney’s Motion to Be Relieved as Counsel (MC-053) on all
appropriate forms, as outlined within California Rules of Court, rule 3.1362,
subdivisions (a), (c), and (e). (Cal. Rules of Court, rule 3.1362, subd. (a),
(c), (e).) The Court additionally
observes that it may be properly concluded, based upon the express averments
made within Plaintiff’s Counsel’s Declaration, that Plaintiff’s Counsel’s
withdrawal may be appropriately warranted and will not cause prejudice to
Plaintiff. Plaintiff’s Counsel declares,
“[t]here has been an irreparable breakdown in attorney-client communications[,]
making it unreasonably difficult for counsel to carry out his employment
effectively.” (Decl. in Support of
Attorney’s Mot., ¶ 2.) The Court notes
trial in the present action is not scheduled until August 29, 2023. Therefore, Plaintiff Nieves has more than
ample time to retain substitute counsel, and will not be prejudiced by
Plaintiff’s Counsel’s withdrawal.
However, as
noted in the preceding paragraph, the Court may not presently award Plaintiff’s
Counsel’s requested relief as a result of certain procedural errors identified
within Plaintiff’s Counsel’s Motion.
Specifically, Plaintiff’s Counsel has failed to file a Proof of Service
demonstrating Plaintiff’s Counsel’s Motion, Declaration, and Proposed Order
have been served upon Plaintiff and all other parties who have appeared in this
action, including, Defendants Dario
Miriel Osuna Solis, Jose Delgadillo, and Sandra Beatriz Guzman. (Cal. Rules of Court, rule 3.1362, subd. (d)
[“The notice of motion and motion, the declaration, and the proposed order must
be served on the client and on all other parties who have appeared in the case.”].) Further, the Court observes the Proposed
Order submitted by Plaintiff’s Counsel is incomplete. Plaintiff’s Counsel has failed to “specify
all hearing dates scheduled in the action” within Section 8 of the submitted
Proposed Order. Particularly,
Plaintiff’s Counsel’s Proposed Order fails to identify the following scheduled
hearings: (1) Informal Discovery Conference, January 4, 2023; (2) Hearing on
Motion to Compel Plaintiff Clarissa Reyes' Attendance at Her Deposition and
Request for Sanctions, January 24, 2022; (3) Hearing on Motion to Compel
Discovery (not “Further Discovery), March 6, 2023; (4) Hearing on Motion to
Compel Plaintiff Nieves’ Responses to Request for Admission, Set Two, June 7,
2023; (5) Hearing on Motion to Compel Plaintiff Nieves’ Responses to Form
Interrogatories, Set Two, June 7, 2023; (6) Hearing on Motion to Compel
Plaintiff Nieves’ Responses to Special Interrogatories, Set Two, June 7, 2023;
(7) Hearing on Motion to Compel Plaintiff Nieves’ Responses to Request for
Production, Set Two, June 7, 2023; (8) Hearing on Motion to Deem Request for
Admissions Admitted, June 7, 2023; (9) Final Status Conference, August 15,
2023.
Due
to the procedural errors identified above, the Court concludes Plaintiff’s
Counsel’s Motion must be denied at this juncture.
Conclusion
Motion to be
Relieved as Counsel filed by Alan C. Brown of Law Offices of Day, Day and
Brown is DENIED, without prejudice.
Moving party is ordered to give
notice.