Judge: Steven A. Ellis, Case: 20STCV49328, Date: 2024-03-28 Tentative Ruling

Case Number: 20STCV49328    Hearing Date: April 10, 2024    Dept: 29

Motion to be Relieved as Counsel, filed by Plaintiff’s Counsel Johnny Rundell of Hershey Law, P.C.

Tentative

The motion is denied without prejudice.

Background

On December 28, 2020, Micael Nystrom (“Plaintiff”) filed a complaint against Margaret E. Davis (“Defendant”) and Does 1 through 50 asserting one cause of action for motor vehicle negligence arising out of an accident on December 28, 2018, near the intersection of Ventura Boulevard and Sepulveda Boulevard in Sherman Oaks. Defendant filed her answer on March 14, 2022.

On March 15, 2024, Johnny Rundell of Hershey Law, P.C. (“Counsel”) filed this motion to be relieved as counsel. No opposition has been filed. Proof of Service was filed with the Court on March 18, 2024.

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, Declaration and Order to be Relieved as Counsel. On March 18, 2024, Counsel filed proof of service of the documents.

According to the moving papers and the proof of service, Plaintiff currently lives in Portugal.  In general, a noticed motion must be served 16 court days before the hearing; the 16-day period for a motion is increased by 5 calendar days for service by mail within the State of California, by 10 calendar days for service by mail outside California and inside the United States, and by 20 calendar days “if either the place of mailing or the place of address is outside the United States.” (Code of Civ. Proc. § 1005, subd. (b).)

Accordingly, for a hearing on April 10, 2024, service by mail on Plaintiff in Portugal on March 15, 2024, is not timely.

While the proof of service includes Plaintiff’s email, electronic service requires a declaration stating the electronic service address is the client’s current address. (Cal. Rules of Court, rule 3.1362(d).) No such declaration has been included with this motion.

Accordingly, the motion is DENIED without prejudice based on untimely notice.

Conclusion

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

Moving counsel to give notice.