Case Number: KC066959 Hearing Date: February 09, 2015 Dept: J
Re: Rudianto Suryana, etc. v. Vinod Kumar Garg, M.D. (KC066959)

MOTION TO BE RELIEVED AS COUNSEL

Moving Party: Nick O’Malley, counsel for Plaintiff

Respondent: No timely opposition filed

POS: No proof of service accompanies the motion

On December 2, 2013, Plaintiff Rudianto Suryana, by and through his Guardian Ad Litem, filed the Complaint herein asserting a cause of action for Medical Malpractice.

A Jury Trial is set for 6/6/15.

Law Offices of Nick O’Malley, counsel for Plaintiff Rudianto Suryana, by and through his Guardian Ad Litem, moves to be relieved as counsel of record.

A notice of motion and motion to be relieved as counsel under CCP 284(2) shall be directed to the client and shall be made on the Notice of Motion and Motion to Be Relieved as Counsel– Civil form (MC-051). (CRC 3.1362(a).) The motion to be relieved as counsel shall be accompanied by a declaration on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel–Civil form (MC-052). The declaration shall state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP 284(2) is brought instead of filing a consent under CCP 284(1). (CRC 3.1362(c).)

The notice of motion and motion and the declaration shall be served on the client and on all other parties who have appeared in the case. The notice may be by personal service or mail. If the notice is served on the client by mail under code of civil procedure section 1013, it shall be accompanied by a declaration stating facts showing that either (1) the service address is the current residence or business address of the client or (2) 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 prior to the filing of the motion to be relieved. “Current” means that the address was confirmed within 30 days prior to the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client’s last known address and was not returned will not, by itself, be sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) shall apply. (CRC 3.1362(d).)

The proposed order relieving counsel shall be prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel–Civil form (MC-053) and shall be lodged with the court and served on the client with the moving papers. The order shall specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order shall be served on the client and on all parties that have appeared in the case. The court may delay the 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. (CRC 3.1362(e).)

No proof of service accompanies the moving papers. Thus, it is unclear whether service was compliant with CCP § 1005.

Further, counsel moves to be relieved on the grounds an irrevocable conflict has arisen between counsel and the Guardian Ad Litem concerning advancing costs in this medical malpractice case as evidenced by an exchange of six emails during December 2014. However, the emails referenced in the declaration are not submitted with the moving papers.

In addition, counsel fails to comply with the requirements of CRC 3.1362. Counsel fails to demonstrate that the notice of motion and motion, declaration and proposed order were served on the client and on all other parties who have appeared in the case, does not indicate the manner by which counsel confirmed the client’s address within 30 days of filing the motion, and fails to lodge the proposed order with the court.

Further, it may be error for the court to permit counsel for a minor to withdraw when a dispositive motion (e.g., motion for summary judgment) is pending and a new attorney has not yet been retained. (Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1409–1410 – Plaintiff’s counsel should not be permitted to withdraw from representing a minor where a new attorney has not yet been retained and defendant’s motion for summary judgment is imminent.

Here, Defendant’s motion for summary judgment is current set for April 14, 2015. Although Plaintiff is not a minor, he is an incompenent person appearing in this action through his Guardian Ad Litem. Thus, the court declines to grant the motion before new counsel is appointed to protect Plaintiff’s interest in this action.

Thus, the motion is denied without prejudice.