Judge: William A. Crowfoot, Case: 20STCV46278, Date: 2022-08-19 Tentative Ruling

Case Number: 20STCV46278    Hearing Date: August 19, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

ABRAHAM MACIAS an individual,

                   Plaintiff,

          vs.

 

ANTONIO SILVA, an individual, and DOES 1-10,

 

                   Defendant(s).

 

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      CASE NO.: 20STCV46278

 

[TENTATIVE] ORDER RE:

MOTION TO BE RELIEVED AS COUNSEL

 

Dept. 27

1:30 p.m.

August 19, 2022

 

I.            BACKGROUND

On December 3, 2020, Plaintiff Abraham Macias filed a Complaint against Antonio Silva and Does 1 to 10 alleging (1) Assault and Battery; (2) Intentional Infliction of Emotional Distress; (3) Negligence; and (4) Violation of the Bane Civil Rights Act.

On May 20, 2022, Plaintiff’s counsel, Raymond D. McElfish, filed an Ex Parte Application requesting to be Relived as Counsel. (Min. Or. 05/23/22.) The Court instructed Mr. McElfish to file a noticed motion to be relieved as counsel. (Id.)

On June 16, 2022, the Court continued the hearing on the Motion so that Mr. McElfish could file a proposed order (MC-053) and Proof of Service.

II.          LEGAL STANDARD

An attorney can be changed or substituted at any time before or after judgment or final determination upon request by either the client or attorney and after notice from one to the other. (Code Civ. Proc. (CCP) § 284.) “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 Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (CRC 3.1362, subds. (a), (c), (e).)¿¿¿ 

¿¿¿ In addition, CRC rule 3.1362(d) requires that the Notice of Motion and Motion (MC-051), Declaration (MC-052), and Proposed Order (MC-053) be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. (CRC 3.1362(d).)¿¿¿ 

¿            If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either:¿¿¿ 

(A) The service address is the current residence or business address of the client; or¿¿¿ 

(B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. (CRC 3.1362(d), subd. (1) & (2).)¿¿¿¿ 

 

III.        DISCUSSION

Raymond D. McElfish of the McElfish Law Firm seek to be relieved as counsel for Plaintiff Abraham Macias. Mr. McElfish asserts “[t]here has been an irremediable breakdown in the attorney-client relationship, such that McElfish Law Firm and its client are in conflict” and can no longer represent Plaintiff. (See MC-052.) Mr. McElfish states that he gave Plaintiff ample time and opportunity to voluntarily sign a substitution of attorney form, but Plaintiff has failed to do so. (Id.) Mr. McElfish even sent a formal letter on December 29, 2021, explaining the reason for the need to withdraw. (Id.) To date, Plaintiff has failed to obtain new counsel.

          On July 7, 2022, Mr. McElfish filed the Proposed Order along with Proof of Service listing all future hearing dates. Defendant has not made an appearance, so service is only required as to Plaintiff. Accordingly, Mr. McElfish has fully complied with California Rules of Court rule 3.1362.

IV. CONCLUSION

            Raymond D. McElfish’s Motion To be Relieved as counsel for Plaintiff Abraham Macias is GRANTED, effective upon filing proof of service of the court’s order (MC-053).

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.