Judge: Steven A. Ellis, Case: 20STCV27370, Date: 2023-08-17 Tentative Ruling

Case Number: 20STCV27370    Hearing Date: September 27, 2023    Dept: 29

TENTATIVE

The motion is denied without prejudice.

Background

On July 21, 2020, Plaintiff Irma Susana Hernandez (“Plaintiff”) filed a complaint against Defendants Jeannie Acdan, Dennis Malabanan, Alexus Malabanan, and Rita Flora Matillano (“Defendants”) for damages arising from a motor vehicle accident.

On August 17, 2023, Plaintiff’s counsel Daniel F. Jimenez filed this motion to be relieved as counsel.

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

On August 17, 2023, the Court denied the motion without prejudice finding that counsel had not lodged MC-053 form with the Court and had not provided proof of service reflecting that the notice of motion, motion, declaration, and proposed order had been served on the client and all of the other parties who appeared in the case.

Counsel has now filed the requisite forms pursuant to CRC Rule 3.1362, including MC-053. The basis for the motion is a breakdown of communication. This is a valid reason for withdrawal. (See Rules Prof. Conduct, rule 1.16.)

Although these documents were filed with the Court on August 17, 2023, however, Plaintiff was not served until September 23 – just four calendar days before the hearing.  That is not sufficient notice for a motion.  (The Court also notes the Defendants were served on August 22.) 

Consequently, the Court must deny the motion, without prejudice, for failure to comply with the service requirements.

Additionally, the Court notes that Jury Trial is scheduled for September 27, 2023. As such, the Court is concerned about whether Plaintiff will suffer unfair prejudice as a result of the relief requested.  

Conclusion

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

Moving party to give notice.