Defendant's Counsel's Motion to Withdraw
Case No.: VCL318924 Date: May 19, 2026 Time: 8:30 A.M. Dept. 2-The Honorable Bret D. Hillman Motion: Defendant's Counsel's Motion to Withdraw Tentative Ruling: To deny the motion without prejudice.
Facts On April 28, 2026, Counsel Alexandar Penley filed a motion to be relieved as counsel as to Defendant Anthony Farias. Counsel filed the following with respect to withdrawing: (1) MC-051 - Notice of Motion and Motion to be Relieved as Counsel; (2) MC-052 - Declaration in Support of Attorney's Motion to Be Relieved as Counsel; and (3) MC-053 - Order Granting Attorney's Motion to Be Relieved as Counsel Additionally, Counsel has filed an undated proof of service regarding service of these documents by mail.
Authority and Analysis Code of Civil Procedure section 284 provides that "[t]he attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [or] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other."
California Rule of Court 3.1362(a) requires that the "notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051)." As noted above, Counsel has complied with California Rule of Court 3.1362(a) by submitting the notice and motion on MC-051 and by directing the notice and motion to all parties.
California Rule of Court 3.1362 (c) further mandates that: "The motion to be relieved as counsel must 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 must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a "Substitution of Attorney" from the client as required under Code of Civil Procedure section 284(1) and that the client refused to so stipulate.
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Here, the declaration is properly made on form MC-052 and uses general terms without compromising confidentiality. However, the declaration is silent as to an attempt to first secure a "Substitution of Attorney" and that the client refused to so stipulate. Absent this information, the Court cannot grant the motion.
Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel's declaration must note the service made. Here, service was by mail, but was made on an unknown date based on the lack of date on the proof of service. The declaration of Counsel indicates that Defendant's address is the last known address.
Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Counsel has complied with this requirement.
The Court denies, without prejudice, Defendant's Counsel's Motion to Withdraw as to Defendant based upon the lack of compliance with California Rule of Court 3.1362(c) with respect to attempting to obtain a "Substitution of Attorney" prior to moving to withdraw and reflecting such efforts in the declaration and absent a dated proof of service.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.
Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Hodges, Eastonn vs. State of California, Department of Transportation [Caltrans]