Case Number: BC523228    Hearing Date: July 24, 2014    Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Thursday, July 24, 2014
Calendar No: 8
Case Name: Stephenson v. Gelfand, et al.
Case No.: BC523228
Motion: Motion to be Relieved as Counsel
Moving Party: James Devitt, counsel for Plaintiff Patricia Stephenson
Responding Party: No opposition filed
Notice: No proof of service

Tentative Ruling: Motion to be relieved as counsel is denied
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Background and Procedural History –
On 10/1/13, Plaintiff Patricia Stephenson filed this action against Defendants Olga Gelfand; Roman Gelfand; Roy E. Smith Plumbing Co., Inc.; and Wes Hendricks arising out of alleged property damage to Plaintiff’s condominium unit on 10/2/10. On 10/3/13, prior to any Defendants’ appearance, Plaintiff filed a First Amended Complaint which asserts causes of action for (1) general negligence, (2) premises liability, and (3) intentional infliction of emotional distress. Plaintiff alleged that the Gelfands negligently hired Roy E. Smith Plumbing and Hendricks to repair pipes at the Gelfands’ condominium unit, and that the water was not slowly re-pressurized resulting in damage to Plaintiff’s condominium unit.

On 2/11/14, the Court overruled the Gelfands’ demurrer to the FAC, but sustained a motion to strike punitive damages with leave to amend. On 3/13/14, Plaintiff filed a Second Amended Complaint, asserting only a cause of action for nuisance against Hendricks. On 3/19/14, Plaintiff voluntarily dismissed the Gelfands (see also Dismissal filed 3/28/14) and Roy E. Smith Plumbing with prejudice. On 6/23/14, default was entered against Hendricks.

Motion to be Relieved as Counsel –
James Devitt, counsel for Plaintiff, seeks to be relieved as counsel on the ground that there has been an irrevocable breakdown in the attorney-client relationship. Decl. ¶ 2. However, despite indicating that the papers have been served on Plaintiff’s last known address (Decl. ¶ 3(a)), there has been no proof of service filed indicating service of the notice of motion and motion, declaration, and proposed order on Plaintiffs (see CRC 3.1362(d)). Notably, no opposition has been filed. Therefore, the motion to be relieved as counsel is denied.

OSC re: Default Judgment –
The Court notes that this matter is set for an OSC re: default judgment on this same date. No default judgment package has been submitted, despite the Court ordering Plaintiff to proceed forthwith (see M.O. dated 5/23/14).