Judge: Steven A. Ellis, Case: 22STCV32545, Date: 2024-10-14 Tentative Ruling

Case Number: 22STCV32545    Hearing Date: October 14, 2024    Dept: 29

Zou v. Contreras
22STCV32545
Motion to be Relieved as Counsel, filed by Plaintiff’s Counsel Francis John Cowhig

Tentative

The motion is denied without prejudice.

Background

On October 4, 2022, Liying Zou (“Plaintiff”) filed a complaint against Noel Contreras for negligence and negligence per se under Vehicle Code section 22350 arising out of an accident on October 7, 2020.

On June 25, 2024, Plaintiff amended the complaint to correct the name of the defendant to Pedro Contreras.

Defendant has yet to make an appearance in this matter.

On September 20, 2024, Francis John Cowhig (“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(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

The Court notes Counsel failed to use MC-052 for the declaration portion of the motion. (See California Rules of Court, rule 3.1362(c).) Further, the motion is not timely served.  Counsel served the motion on September 19, 16 court days before the hearing; timely service would need to include five more days for service by mail. (Code of Civil Procedure section 1005(b).)

Accordingly, the motion is DENIED without prejudice.

Conclusion

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

Moving counsel to give notice.