Judge: Stephen Morgan, Case: 21AVCV00426, Date: 2022-09-08 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: 21AVCV00426 Hearing Date: September 8, 2022 Dept: A14
Background
This is personal injury action. Plaintiff Dawn Lockwood-Fleischer (“Plaintiff”) alleges that on March 30, 2019, she was attacked by one or more dogs on the property located at 40701 Rancho Vista Blvd., Space #150, Palmdale, CA 93551 (“the Premises”). Plaintiff alleges that Defendant Stacy Cassel (“Defendant”) was the owner, occupiers, and/or lessors of the Premises and that Defendant was negligent by failing to inspect, control, and maintain the Premises despite knowledge, or the ability to have knowledge, of the dangerous condition and took no action to warn Plaintiff or allowed the dangerous condition to exist for such a length of time that if Defendants had exercised reasonable care in inspecting the premises, they would have discovered the dangerous condition in time to remedy it or give warning before Plaintiff was injured. The dog or dogs were allowed by the Defendants to remain on the property without proper restraint and/or supervision.
On February 19, 2019, Plaintiffs filed their Complaint against Defendants Red Roof Inns, Inc. (“Red Roof Inns”), Red Roof Inn Palmdale – Lancaster, and Azad R. for seven (7) causes of action: (1) Battery, (2) Negligence, (3) Negligent Infliction of Emotional Distress (“NIED”), (4) Intentional Infliction of Emotional Distress (“IIED”), (5) Fraudulent Concealment, (6) Private Nuisance, and (7) Public Nuisance.
On April 02, 2021, Plaintiff filed her Complaint, alleging three (3) causes of action for: (1) General Negligence, (2) Premises Liability, and (3) Strict Liability Pursuant to Civil Code § 3342.
On August 11, 2022, Plaintiff’s counsel, Daniel E. Selarz (“Selarz”), filed this 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).) The noticed hearing is set for September 08, 2022. An Opposition was due on August 25, 2022. 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 –
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).
Selarz has complied with this requirement.
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).
Selarz has complied with this requirement.
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.)
Selarz has complied with this requirement by serving Plaintiff by mail at her last known address, return receipt requested, after making reasonable efforts to confirm her address by calling Plaintiff’s last known telephone number or numbers and contacting the additional contacts Plaintiff identified on her intake questionnaire.
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.
Selarz has filed a proposed order on form MC-053 with the current hearing dates and trial dates.
Accordingly, Selarz’s Request to be Relieved as Counsel is GRANTED.
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Conclusion
Plaintiff’s Counsel Daniel E. Selarz and Selarz Law Corp.’s Motion to Be Relieved as Counsel is GRANTED.