Judge: Stephen Morgan, Case: 22AVCV00322, Date: 2023-03-28 Tentative Ruling

Case Number: 22AVCV00322    Hearing Date: March 28, 2023    Dept: A14

Background

This is a premises liability action. Plaintiff Sherry Sherrell Carter (“Plaintiff”) alleges that on or about August 15, 2020 she was lawfully on or inside the premises of Vallarta Supermarket located at l80l West Avenue I, Lancaster, California 93534 (“Subject Property”), which was owned, managed, operated, controlled, inspected, monitored, maintained, displayed, designed, furnished, constructed, decorated, cleaned, dried, mopped, repaired, guarded, supervised, renovated and/or secured by Defendants Vallarta Food Enterprises, Inc. (“Defendant”) and Vallarta Properties, LLC. Plaintiff further alleges that she was walking in the soda aisle in the Subject Property when she slipped and fell on a liquid, slick, slippery, slimy and/or wet substance or item that was on the floor, sustaining severe and permanent injuries and damages.

On May 05, 2022, Plaintiff filed her Complaint alleging two causes of action for General Negligence and Premises Liability. 

On February 21, 2023, Plaintiff’s counsel, Cynthia E. Allred (“Allred”), 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. 

On February 24, 2023, the Court issued a continuance of the hearing, changing the time from 9:30 a.m. to 8:30 a.m.  The Court provided notice to the attorneys of record for each party. 

On March 01, 2023, Allred provided notice via mail and email to Plaintiff.

On March 16, 2023, Allred filed a Supplemental Declaration attesting to service of both the Motion to be Relieved and the Notice Re: Continuance of Hearing and Order.

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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). 

Allred 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). 

Allred has provided a declaration on the mandatory MC-052 form stating that considerable differences of opinion regarding the handling of the instant action and other factors have arisen between Plaintiff and Cohen & Marzban, Law Corporation, Allred’s law firm. Allred believes that, due to these differences, she can no longer effectively continue to represent Plaintiff.

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.) 

Allred has served Plaintiff by mail and email with her Motion to Be Relieved. Allred has confirmed both Plaintiff’s mailing address and email address are current within the past 30 days by mail, return receipt requested, and email. (See MC-052 No. 3.)

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.

Allred has provided a proposed order on the mandatory MC-053 form.

Accordingly, Allred’s Motion to be Relieved as Counsel is GRANTED.

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Conclusion