Judge: Stephen Morgan, Case: 21AVCV00397, Date: 2023-03-28 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

Case Number: 21AVCV00397    Hearing Date: March 28, 2023    Dept: A14

Background

This is a personal injury action. Plaintiff Delfina Montes (“Plaintiff”) alleges that on July 10, 2019 she was at 44840 Valley Center Way, Suite 109, Lancaster, CA 93536 when Defendant Lancaster Jun Enterprise, Inc. (“Defendant”) negligently owned, maintained, operated, entrusted, their premises so as to cause a dangerous, inedible, foreign, and destructive object to exist in the preparation, and service of Plaintiff’s meal, thereby resulting in personal injury to Plaintiff.

On May 14, 2021, Plaintiff filed her Complaint alleging two causes of action for General Negligence and Premises Liability.

On February 23, 2023, Plaintiff’s counsel, David Vahe Abrahamian (“Abrahamian”) filed this instant Motion to be Relieved as Counsel.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) The hearing is scheduled for March 28, 2023. Accordingly, an Opposition was due by March 15, 2023. Should an Opposition be filed, it is now untimely.

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Analysis

Standard for Relieving Counsel – An attorney in an action¿may be changed¿at any time before or after judgment or final determination upon the order of the court,¿upon the application of either client or attorney, after notice from one to the other. (Cal. Code Civ. Proc. §284(2)).¿ Rules of Court, Rule 3.1362 requires: 

1.¿¿¿¿¿¿¿¿¿Notice of motion and motion¿to be 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 CCP §284(2), is brought instead of filing a consent under CCP §284(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 and declaration 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)). 

(Rules of Court, Rule 3.1362.)

The motion should be denied if withdrawal would¿prejudice the client.¿ (Rules Prof. Conduct, Rule 3-700(A)(2); Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial, 9:385.2 (2008); 1 Witkin Cal. Pro., Attorneys §72 (2008).)¿ The motion should be denied if it will¿cause undue delay in the proceeding or cause injustice.¿ (Mandell v. Superior Court, (1977) 67 Cal.App.3d 1, 4.)¿ The determination whether to grant or deny an attorney’s motion to withdraw as counsel of record 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.¿ (Lempert v. Superior Court¿(2003) 112 Cal.App.4th 1161, 1173.)¿ A breakdown in the attorney-client relationship (or personality clash) is grounds for withdrawal.¿ (Estate of Falco¿(1987) 188 Cal.App.3d 1004, 1014.) An attorney is not limited to withdrawing from a case for cause and may withdraw when withdrawal can be accomplished without undue prejudice to the client.¿ (Ramirez v. Sturdevant¿(1994) 26 Cal. Rptr. 2d 554, 559.) 

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Discussion

Application –

i.        Notice

A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the¿Notice of Motion and Motion to Be Relieved as Counsel-Civil¿(form MC-051). 

Abrahamian has complied with this requirement.

ii.                  Declaration – CRC Rule 3.1362(c)

The motion to be relieved as counsel must be accompanied by a declaration on the¿Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil¿(form MC-052). The declaration 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). 

Abrahamian has provided a declaration attesting to a breach of a material term of an agreement with, or obligation, to the lawyer relating to a misrepresentation. However, he has supplied this declaration on an MC-031 form instead of the mandatory MC-052 form.

iii.                Service – CRC Rule 3.1362(d); LASC Local Rule 4.35 

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. The notice may be by personal service or mail. 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:  

(1)The service address is the current residence or business address of the client; or 

(2)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. 

As used in this rule, "current" means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.  

When an attorney files a motion to withdraw as attorney of record for a fiduciary, service must be made by citation. The citation must be served in the manner provided in Code of Civil Procedure sections 415.10 or 415.30. If the fiduciary resides outside of California, service may also be made in the manner provided in Code of Civil Procedure section 415.40.  (LASC Local Rules, Rule 4.35.) 

This information is generally provided on the MC-052 form. As such, the Court cannot address this required section for Abrahamian’s Motion to Be Relieved.

iv.                Order – CRC Rule 3.1362(e) 

The proposed order relieving counsel must be prepared on the¿Order Granting Attorney's Motion to Be Relieved as Counsel-Civil¿(form MC-053) and must be lodged with the court with the moving papers. The order 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. 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. The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.

Abrahamian has not provided a proposed order relieving counsel on the mandatory MC-053 form.

Accordingly, Abrahamian’s Motion to be Relieved as Counsel is DENIED.

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Conclusion