Judge: Steven A. Ellis, Case: 21STCV22522, Date: 2023-09-06 Tentative Ruling

Case Number: 21STCV22522    Hearing Date: November 8, 2023    Dept: 29

There are currently four matters before the Court: (1) OSC re dismissal for failure to file proof of service or request for default; (2) OSC re monetary sanctions for failure to file proof of service; (3) trial setting conference; and (4) hearing on motion to be relieved as counsel.

Tentative

The motion to be relieved is GRANTED. 

Trial is set and the two OSCs are continued.

Background

On June 16, 2021, Plaintiff Humberto A. Ramos (“Plaintiff”) filed a complaint against Defendants Thomas Ward, City of Montebello, Los Angeles County Metropolitan Transit Authority, Southern California Regional Rail Authority dba Metrolink, and Does 1 through 100 for (1) battery; (2) assault; (3) negligence; (4) a second negligence count; and (5) breach of statutory liability.  On filing, this case was assigned a Final Status Conference date of November 30, 2022, and a Trial date of December 14, 2022.

No one appeared at the Final Status Conference.  On the trial date, Plaintiff’s counsel appeared and represented that he had lost track of his client.  The Court vacated the trial date, set an OSC re dismissal for failure to file proof of service on June 16, 2023, set an second OSC re monetary sanctions for failure to file proof of service for the same date, and also set a trial setting conference for the same date.

On March 29, 2023, Defendant City of Montebello (“City”) filed a demurrer.  On April 26, the Court sustained City’s demurrer to the fourth cause of action against it.  The granted leave to amend, but Plaintiff did not amend.  

On April 28, 2023, Plaintiff’s counsel David Lynn filed his initial motion to be relieved as counsel. On May 31, the Court continued the hearing to August 1, 2023, to allow counsel to remedy procedural defects in the motion. 

On June 16, 2023, the two OSCs and the TSC were continued to August 1.

On August 1, 2023, the Court denied the motion to be relieved without prejudice, as counsel had not remedied the procedural defects in the motion.  The Court continued the two OSCs and the TSC.

On August 17, 2023, Plaintiff’s counsel filed his second motion to be relieved.  The motion was again denied without prejudice based on procedural defects.

On October 4, 2023, Plaintiff’s counsel filed his third motion to be relieved. Defendant City of Montebello has filed an opposition and seeks, as affirmative relief, dismissal of the action.

Legal Standard (Motion to be Relieved)

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 satisfied all of the procedural and substantive requirements for the motion to be relieved. Counsel states that he has diligently attempted to contact Plaintiff and that his most recent information is that Plaintiff has departed from the United States and will not be returning to this country. (Lynn Decl., ¶¶ 3-5.)  Counsel has shown good cause to be relieved. The motion is GRANTED.

Defendant City’s request for affirmative relief is DENIED without prejudice.  Defendant City may file its own motion seeking relief.                     

Conclusion

The motion to be relieved as counsel is GRANTED.

The order is effective upon filing proof of service of the order, with all upcoming dates, on Plaintiff at his last known address.

Trial is set for a date in early March 2024.  Final Status Conference and all deadlines are reset based on the new trial date.  The two OSCs are continued to the time of trial.

Counsel for Plaintiff to give notice.