Judge: Steven A. Ellis, Case: 20STCV17661, Date: 2024-02-21 Tentative Ruling

Case Number: 20STCV17661    Hearing Date: February 21, 2024    Dept: 29

Motions to be Relieved as Counsel, filed by Plaintiff’s Counsel Benjamin Arsenian.

Tentative

The motion is denied without prejudice.

Background

On May 8, 2020, Plaintiffs Brian Quirante and Jenny Dang (collectively “Plaintiffs”) filed their complaint against City of Santa Monica, Big Blue Bus, Stanley Jackson Jr., and Does 1 to 10 for Motor Vehicle Negligence and General Negligence stemming from an auto accident occurring July 26, 2019.

On January 30, 2024, Benjamin Arsenian filed these motions to be relieved as counsel for Plaintiffs.

Legal Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(b).) An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation. (See Cal. Rules of Prof. Conduct 3-700(C)(1).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.)   

An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.136(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)).   

Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay 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. (Cal. Rules of Court, rule 3.1362(e).) 

Discussion

Counsel has filed the Notice and Order to be Relieved as Counsel, forms MC-051 and MC-053. However, Counsel failed to use form MC-052 for his declaration to be relieved as counsel for each Plaintiff. Use of that form is mandatory. (See California Rules of Court, 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].”].)

Further, the proof of notice attached Counsel states service of these documents was by electronic mail, but the attached declaration does not provide how the email address’s currentness was confirmed with Plaintiff Dang; instead it is based on “information and belief.” (Arsenian Decl., ¶ 6.) This does not meet the requirements of California Rules of Court Rule 3.1362(d), “[a]s 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 or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current.”

Accordingly, the Court finds counsel has not satisfied the procedural requirements for a motion to be relieved. The motion is DENIED without prejudice.

Conclusion

The motion to be relieved as counsel is DENIED without prejudice.

Moving counsel to give notice.