Judge: Stephanie M. Bowick, Case: 19STCV41848, Date: 2023-01-18 Tentative Ruling
DEPARTMENT 19 LAW AND MOTION RULINGS
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Case Number: 19STCV41848 Hearing Date: January 18, 2023 Dept: 19
Counsel for Plaintiff Graciela Jimenez’s Motion
to be Relieved as Counsel is GRANTED.
Counsel must serve the Order Granting Attorney’s Motion to Be Relieved as Counsel—Civil according to Code of Civil Procedure section 1011, subdivision (b) and California Rules of Court, rule 3.252 and file proof of service.
Moving Counsel to give
notice to all parties.
This is an employment dispute
action. Plaintiffs Miguel Pachar, Graciela Jimenez, Pedro Sauceda, and Javier
Machucha (collectively, “Plaintiffs”) bring suit against Defendants Silvestri
Studios, Inc., Mario Basulto, and Freddy Garia (collectively, “Defendants”)
alleging the following causes of action in the First Amended Complaint (“FAC”):
1.
Discrimination In Violation of Gov’t Code
§§12940 Et Seq.;
2.
Harassment In Violation of Gov’t Code §§12940 Et
Seq.;
3.
Retaliation In Violation of Gov’t Code §§12940
Et Seq.;
4.
Failure To Prevent Discrimination, Harassment and
Retaliation in Violation of Gov’t Code §12940(K);
5.
Wrongful Termination in Violation of Public
Policy;
6.
For Declaratory Judgment; And
7. Failure To Permit Inspection of Personnel and Payroll Records (Cal. Labor Code §1198.5).
On December 22, 2022, Ramin R.
Younessi and Law Office of Ramin R. Younessi (“Counsel” or “Movant”), Counsel
for Plaintiff Graciela Jimenez
(“Client”), filed an MC-051 “Notice of Motion and Motion to be Relieved as
Counsel” along with an MC-052 “Declaration in Support of Attorney’s Motion to
be Relieved as Counsel” and an MC-053 proposed order.
DISCUSSION
A. Procedural Requirements
California Rules of Court, rule
3.1362 prescribes the following requirements of a movant seeking to be relieved
as counsel:
1.
The notice of motion and motion must be directed
to the client and must use form MC-051 (“Notice of Motion and Motion to Be
Relieved as Counsel-Civil”);
2.
The motion must be accompanied by a declaration
using form MC-052 (“Declaration in Support of Attorney's Motion to Be Relieved
as Counsel-Civil”) and “must 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).”;
3.
A proposed order must be lodged with the court
along with the moving papers and must use form MC-053 (“Order Granting
Attorney's Motion to Be Relieved as Counsel-Civil”) and “must specify all
hearing dates scheduled in the action or proceeding, including the date of
trial, if known. If no hearing date is presently scheduled, the court may set
one and specify the date in the order.”;
4.
“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” either by personal service, electronic
service, or by mail.
(Cal. R. Ct., 3.1362 (a) – (e).)
“If the notice is
served on the client by mail under Code of Civil Procedure section 1013, it
must be accompanied 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. at 3.1362(d).)
“Current” means that “the address was confirmed within 30 days before the filing of the motion to be relieved.” (Id.) “Merely demonstrating that the notice was sent to the client's last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current.” (Id.) “If the service is by mail, Code of Civil Procedure section 1011(b) applies.” (Id.)
Here, Counsel satisfies the requirements of California Rules of Court, rule 3.1362. Counsel submits the Motion, Declaration, and Proposed Order using the mandatory Judicial Council forms. The proof of service included in the Motion indicates that the forms were served on all parties who have appeared in the matter by mail or electronic mail and in a manner that satisfies the relevant provisions found in Code of Civil Procedure sections 1013 and 1011(b). (See Declaration, § 3b.) Counsel has confirmed Client’s current address. (Id.)
B. Merits
There are two ways in which an “attorney in an action or special proceeding may be changed at any time before or after judgment or final determination:” (1) when both the client and attorney consent; or (2) when the court orders it upon the client’s or attorney’s application. (Code Civ. Proc., § 284.) The court has sound discretion to permit the withdrawal of an attorney. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Id.)
Withdrawal is generally permitted unless there is a compelling reason to continue the representation. (Heple v. Kluge (1951) 104 Cal.App.2d 461, 462.) There is a compelling reason when the withdrawal would prejudice the client, the other parties in the action, or a third party. (See, e.g., People v. Prince (1968) 268 Cal.App.2d 398, 406; Linn v. Superior Court in and for Los Angeles County (1926) 79 Cal.App. 721, 725.) “Where issues of confidentiality prevent ‘counsel from further disclosure and the court accepts the good faith of counsel's representations, the court should find the conflict sufficiently established and permit withdrawal.’” (Id. (quoting Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 592, citing Uhl v. Municipal Court (1974) 37 Cal.App.3d 526, 527 and Leversen v. Superior Court (1983) 34 Cal.3d 530, 539).)
Here, Counsel attests that there has been a breakdown in the attorney-client relationship. (Declaration at § 2.)
Based on Counsel’s declaration, the Court finds that good cause exists for Counsel’s withdrawal and that such withdrawal will not prejudice Defendants or any other party. The motion is unopposed.
Accordingly, the Court GRANTS
Counsel’s Motion to be Relieved as Counsel.