BENITO MIGUEL LOPEZ VS FRANCISCO HUERTA FIERRO, ET AL.

Tentative Rulings

Case Number: 19STLC06263    Hearing Date: August 17, 2020    Dept: 25

HEARING DATE: Mon., August 17, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Lopez v. Fierro, et al. COMPL. FILED: 07-03-19

CASE NUMBER: 19STLC06263 DISC. C/O: 11-30-20

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Plaintiff’s Counsel Octavio Lopez

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2); CRC rule 3.1362)

TENTATIVE RULING:

Plaintiff’s Counsel Octavio Lopez’ Motion to be Relieved as Counsel is GRANTED ON THE CONDITION THAT, before the hearing, Counsel files a proof of service demonstrating he gave Plaintiff proper notice of the April 17^th continuance. If granted, the proposed order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Plaintiff] has been filed with the court.” Id.)

Otherwise, the Motion will be CONTINUED TO OCTOBER 26, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff’s Counsel must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of August 13, 2020 [ ] Late [X] None

REPLY: None filed as of August 13, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On July 3, 2019, Plaintiff Benito Miguel Lopez (“Plaintiff”) filed an action for negligence against Defendants Sandra Perez Gonzalez (“Gonzalez”) and Francisco Huerta Fierro (“Fierro”). Defendants have not yet filed an answer.

On February 28, 2020, Plaintiff’s Counsel Octavio Lopez (“Counsel”) filed the instant Motion to be Relieved as Counsel (the “Motion”). On March 18, 2020, the Court found that the hearing for the Motion was incorrectly scheduled in Department 27 instead of Department 25. (3/18/20 Minute Order.) Thus, the Motion was continued to June 10, 2020. (Id.) On April 27, 2020, the Court, on its own motion, continued the hearing to August 17, 2020 at 9:30 a.m. (4/27/20 Notice re Continuance and Order.) Plaintiff’s Counsel was ordered to give notice of the continuance and to file a proof of service demonstrating such notice was given. (Id.)

To date, no opposition has been filed.

1. 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 Civ. Proc. § 284, subd. (2).) “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). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).)

In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. 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.

(Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).)

1. Discussion

Plaintiff’s Counsel seeks to be relieved due to irreconcilable differences that have made it unreasonably difficult for Counsel and his firm to continue representing Plaintiff in a meaningful way. (MC-052, ¶ 2.) Specifically, Plaintiff has failed to cooperate or appear at any scheduled appointments for the past 6 months. (Id.) Counsel mailed the instant Motion to Plaintiff’s current address, which was confirmed by telephone at most 30 days before filing. (Id. at ¶ 3.)

The Court is satisfied with Counsel’s reasons for seeking to be relieved and finds that he has satisfied the requirements of California Rules of Court, rule 3.1362, subdivision (a) and (c)-(e). In addition, trial is scheduled for December 30, 2020, giving Plaintiff sufficient time to obtain new representation should he wish to continue prosecuting this action.

Although the Court is inclined to grant the Motion, Counsel did not file a proof of service demonstrating he gave Plaintiff notice of the March 18^th order or the April 17^th continuance. However, in the interest of judicial economy, the Motion is GRANTED ON THE CONDITION THAT, before the hearing, Counsel files a proof of service demonstrating he gave Plaintiff adequate notice of the April 17^th continuance. Otherwise, the Motion will be CONTINUED.

1. Conclusion & Order

For the foregoing reasons, Plaintiff’s Counsel Octavio Lopez’ Motion to be Relieved as Counsel is GRANTED ON THE CONDITION THAT, before the hearing, Counsel files a proof of service demonstrating he gave Plaintiff proper notice of the April 17^th continuance. If granted, the proposed order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Plaintiff] has been filed with the court.” Id.)

Otherwise, the Motion will be CONTINUED TO OCTOBER 26, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff’s Counsel must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar.

Moving party is ordered to give notice.