Judge: Steven A. Ellis, Case: 23STCV06174, Date: 2024-12-13 Tentative Ruling

Case Number: 23STCV06174    Hearing Date: December 13, 2024    Dept: 29

Acosta v. LAUSD
23STCV06174
Motion to be Relieved as Counsel, filed by Plaintiff’s Counsel Anthony Werbin, Esq.

Tentative

Motion is DENIED WITHOUT PREJUDICE.

Background

On March 21, 2023, Brianna Acosta, a minor by and through her Guardian Ad Litem Maria Acosta (“Plaintiff”), filed a complaint against Los Angeles Unified School District, Los Angeles Office of Education, Couty of Los Angeles, City of Los Angles, California Department of Education, and State of California for premises liability cause of action arising out of a slipping/tripping incident occurring on April 7, 2022.

On October 3, 2023, Los Angeles Office of Education was dismissed. On October 6, 2023, County of Los Angeles was dismissed. On October 23, 2023, City of Los Angeles was dismissed.

On October 10, 2023, Los Angeles Unified School District filed its answer.

Trial is set for April 21, 2025.

On November 19, 2024, Anthony Werbin, Esq. (“Counsel”) filed this motion to be relieved as counsel. 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

Counsel has filed the Notice to be Relieved as Counsel on November 19, exactly 16 court days before the December 13 hearing. However, service on Plaintiff was by mail, requiring this motion and supporting papers to be served on Plaintiff on November 14. Further, no proof of service is attached to the declaration and proposed order; the proof of service attached to the notice of motion does not include these two documents as being served.

Accordingly, the motion is DENIED WITHOUT PREJUDICE due to improper service.

The Court also notes that the Plaintiff is a minor, represented by a guardian ad litem.  If Counsel files a new motion, and if the motion is granted, Plaintiff will need to retain new counsel, or the matter will need to be dismissed without prejudice at some point.  A minor cannot represent herself in an action of this nature, and a non-attorney guardian ad litem cannot represent the minor without counsel.

Conclusion

The motion to be relieved as counsel is DENIED WITHOUT PREJUDICE.

Moving counsel is ordered to give notice.