Estate of Raphael Harper v. CVS Pharmacy, Inc., et al

Case Number

24CV00873

Case Type

Hearing Date / Time

Wed, 04/09/2025 - 10:00

Nature of Proceedings

Motions (5)

Tentative Ruling

For Plaintiffs Raquel Harper and The Estate of Raphael Harper: Daniel Moossai, Downtown LA Law Group

                                   

For Defendant Longs Drug Stores California, LLC: James J. Yukevich, Raymond H. Hua, Matthew H. Conley, Yukevich Cavanaugh

                                   

For Defendant 2973 State Street, LLC: Craig A. Parton, Kristen M. Blabey, Jeff F. Tchakarov, Price, Postel & Parma LLP

RULING

1. The motions of attorney for Raquel Harper and the Estate of Raphael Harper, to be relieved as counsel, are granted.

          a. Counsel shall comply with California Rules of Court, rule 3.1362(e), and properly serve plaintiffs, as well as all other parties, with a copy of the Order granting the motion, along with a copy of the minute order from this hearing, and file proof of service with the court.

          b. The Order relieving counsel is not effective until the proof of service is filed.

2. The motions of Longs Drug Stores California, LLC are continued to June 11, 2025, for plaintiffs to retain new counsel.

          a. Plaintiffs are advised that the last day to file and serve opposition to the motions, based on the revised hearing date, is May 29, 2025. If no opposition has been filed and served by that date, the hearings will proceed based on the moving papers.

Background

On February 16, 2024, plaintiffs Raquel Harper, as successor in interest to decedent Raphael Harper (Raphael), and the Estate of Raphael (collectively “plaintiffs”), filed a complaint against defendants CVS Pharmacy, Inc. (CVS), and 2973 State Street LLC (State Street), (collectively, “defendants”), alleging two causes of action for general negligence and premises liability. (Note: Due to common surnames, the Court will refer to Raphael Harper individually by his first name. No disrespect is intended.)

As alleged in the Judicial Council form complaint, on February 16, 2022, Raphael was walking within defendants’ premises when, suddenly and without warning, the wheels on the shopping cart Raphael was pushing adhered or stuck to an unknown substance on the floor, causing Raphael to fall forward and sustain injuries. (Compl., GN-1 & Prem.L-1.)

On April 25, 2024, Longs Drug Stores California, LLC, (Longs), answered the complaint, generally denying its allegations and asserting twenty-five affirmative defenses. In its answer, Longs asserts that it was erroneously sued as CVS.

On May 24, 2024, State Street answered the complaint and filed a cross-complaint against Longs asserting six causes of action for breach of contract, and equitable and declaratory relief. State Street dismissed its cross-complaint, without prejudice, on August 16, 2024.

Following other discovery disputes, and orders resulting therefrom, on January 28, 2025, Longs filed the present motions for an order deeming requests for admissions admitted.

On February 25, 2025, Longs filed the present motion for terminating sanctions.

On February 26, 2025, counsel for plaintiffs filed the present motions to be relieved as counsel due to “an irremediable breakdown in the attorney-client relationship that stands in the way of effective representation.” (Moossai Dec., ¶ 2.) This constitutes good cause for allowing counsel to withdraw. (see Estate of Falco (1987) 188 Cal.App.3d 1004, 1014.)

Plaintiffs have filed no oppositions or other responsive documents to any of the motions.

The motions to be relieved as counsel will be addressed first.

Analysis

            Motions to be Relieved as Counsel

“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows:

“1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes;

“2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.)

California Rules of Court, rule 3.1362, provides:

“(a) Notice

A 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).

“(b) Memorandum

Notwithstanding any other rule of court, no memorandum is required to be filed or served with a motion to be relieved as counsel.

“(c) Declaration

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).

“(d) Service

The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail.

“(1) If the notice is served on the client by mail under Code of Civil Procedure section 1013, 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.

“(2) If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client's current electronic service address.

As used in this rule, “current” means that the address was confirmed within 30 days before 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 or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.

“(e) Order

The proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel--Civil (form MC-053) and must be lodged with the court with the moving papers. The order must 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 must 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.”

Here, plaintiffs’ counsel has complied with all of the requirements of the Code of Civil Procedure and the California Rules of Court. As noted above, plaintiffs’ counsel declares that there has been “an irremediable breakdown in the attorney-client relationship that stands in the way of effective representation.” the motions were properly served on February 24, 2025.

The court finds good cause to relieve plaintiffs’ counsel. The motions will be granted.

            Remaining Motions

The remaining motions will be continued in order to give plaintiffs the opportunity to obtain new counsel and either resolve the disputes that are the subject of the motions, or file and serve oppositions.