Judge: Steven A. Ellis, Case: 22STCV26389, Date: 2025-02-20 Tentative Ruling

Case Number: 22STCV26389    Hearing Date: February 20, 2025    Dept: 29

Caldwell v. Starbucks
22STCV26389
Motion to be Relieved as Counsel filed by Plaintiff’s counsel Gerald L. Marcus, Esq.

Tentative

The motion is denied without prejudice.

Background

On August 16, 2022, Charity Caldwell (“Plaintiff”) filed a complaint against Starbucks, Starbucks Corp, and Tomsic Living Trust for premises liability – negligence arising out of injuries that Plaintiff allegedly sustained on December 11, 2020.

On June 13, 2023, Plaintiff named Starbucks Corporation (“Starbucks”) as Doe 1.

On July 13, 2023, Starbucks filed an answer.

On December 7, 2023, Tomsic Living Trust filed an answer.

On October 22, 2024, Starbucks filed a motion for summary judgment. On October 25, 2024, Tomsic Living Trust filed a motion for summary judgment.

On January 9, 2025, Gerald L. Marcus, Esq. (“Counsel”) filed this motion to be relieved as counsel for Plaintiff. No opposition has been filed.

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, subd. (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. However, proof of service of this motion shows electronic service on Plaintiff.

“If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client's current electronic service address.” (California Rules of Court, rule 3.1362, subd. (d)(2).)

Counsel has failed to file a declaration attesting that Plaintiff’s electronic service address is current.

Accordingly, the motion is DENIED without prejudice.

Conclusion

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

Moving counsel is ordered to give notice.