Hock v. Superior Court

Opinion

NARES, J.

Rodney L. Hock and Michael R. Jackson (collectively, Petitioners) petition for a writ of mandate after the superior court clerk refused to file their documents substituting Estes & Hoyt, a law firm, in place of their current attorney of record, Alban P. Silva. The clerk refused to accept the filing under a local rule of court, now rule l.ll,

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requiring “leave of court” for any “substitution and/or withdrawal” of counsel occurring after the trial setting conference.

2

Petitioners assert a local rule cannot impose substantive requirements beyond those established by statute. Accordingly, they contend rule 1.11 is void because it conflicts with Code of Civil Procedure

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section 284,

[672]

subdivision 1, providing an attorney may be changed “at any time . . . [u]pon the consent of both client and attorney, filed with the clerk.”

County counsel has appeared on behalf of the superior court (the court). The court now concedes under section 284, subdivision 1 it has no discretion to refuse leave to file a consensual substitution of attorneys. Nevertheless, the court contends rule 1.11 is valid because it establishes only a procedure, the purpose of which is to ensure what is seemingly a consensual substitution is, in fact, consensual, and to remind the parties the substitution will not furnish grounds for a continuance.

As discussed below, we grant the petition because the language in rule 1.11 irreconcilably conflicts with section 284, subdivision 1.

Facts and Procedure

Petitioners are defendants in a superior court civil case. Nine months before trial, Petitioners attempted to file documents substituting Estes & Hoyt, a law firm, in place of their attorney of record, Alban P. Silva. Estes & Hoyt, Silva, and Petitioners each consented to the substitution. Citing rule 10.9(e),