Judge: Theresa M. Traber, Case: 21STCV35300, Date: 2023-03-27 Tentative Ruling

Case Number: 21STCV35300    Hearing Date: March 27, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 27, 2023                      TRIAL DATE: September 19, 2023

CASE:                         Timothy Joseph Toups (deceased) et al. v. 3M Company, et al.

CASE NO.:                 21STCV35300           

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:               Attorney Orian C. Southall, Attorney for Defendant 3M Company

RESPONDING PARTY(S): No opposition on eCourt as of 3/22/23

CASE HISTORY:

·         09/24/21: Complaint filed.

·         10/20/21: The Quikrete Companies, LLC substituted in as Doe 1

·         11/29/21: Dismissal entered as to Quikrete International, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a toxic tort and survival action. Plaintiffs allege that Timothy Joseph Toups, now deceased, was exposed to various toxic chemicals while working in construction, which ultimately caused his fatal illness.

Attorney Orian C. Southall, counsel for Defendant 3M Corporation, moves to be relieved as counsel.

TENTATIVE RULING:

            Attorney Orion C. Southall’s Motion to Be Relieved as Counsel is GRANTED.

            This ruling is conditioned on Moving Counsel serving notice of the Court’s ruling on all parties and filing proof of service with the Court.

DISCUSSION:

Attorney Orian C. Southall, counsel for Defendant 3M Corporation, moves to be relieved as counsel.

            The Court previously continued the hearing on this motion from March 8, 2023 to March 27, 2023 and ordered Moving Counsel to file and serve form MC-053 with proof of service, as required by California Rules of Court rule 3.1362(d). (March 8, 2023 Minute Order.) Moving counsel has done as ordered by the Court. Forms MC-051 and MC-052 were filed on February 3, 2023, including a proof of service as required by Rule 3.1362(d).  Moving Counsel filed two of the three required forms (MC-051 and -052) and included a proof of service as required by California Rules of Court rule 3.1362(d). Form MC-053 was filed on March 15, 2023, with a proof of service as required. Moving Counsel’s declaration states that he served Defendant by mail and confirmed the address is current via telephone. (MC-052 ¶ 3.) Moving counsel seeks to be relieved as counsel because moving counsel’s firm, Blackwell Burke P.A., is in the process of dissolution. (MC-052 ¶ 2.)

            In general, an attorney may withdraw with or without cause as long as the withdrawal would not result in undue prejudice to the client’s interest – i.e., counsel cannot withdraw at a critical point in the litigation, because that would prejudice client, but can withdraw otherwise. (Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.) The court has discretion to deny an attorney’s request to withdraw where the withdrawal would work an injustice or cause undue delay in the proceeding, but the court’s discretion in this area is one to be exercised reasonably. (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.)   

            Here, the matter is set for trial on September 19, 2023. (MC-052 ¶ 6.) There is also a Status Conference set for July 20, 2023 as the next hearing in this case. (MC-052 ¶ 4.) The risk of prejudice to Defendant is therefore low due to the relatively remote trial date. Further, Moving Counsel’s declaration and the Court’s records show that Defendant 3M Corporation is also represented by Kevin Whelan of Gordon Rees Scully Mansukhani, LLP. (MC-052 ¶ 2.) Thus, as Moving Counsel states, there will be no lapse in representation for Defendant. (Id.) In light of this evidence and the minimal risk of prejudice to Defendant, the Court finds that these circumstances warrant withdrawal.

CONCLUSION:

            Accordingly, Attorney Orian C. Southall’s Motion to Be Relieved As Counsel is GRANTED.

            This ruling is conditioned on Moving Counsel serving notice of the Court’s ruling on all parties and filing proof of service with the Court.

IT IS SO ORDERED.

Dated: March 27, 2023                                   ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.