Judge Bruce G. Iwasaki, Case Number: 19STCV14523, Date: 2024-11-20 Tentative Ruling

Tentative Ruling: The Motion to be Relieved as Counsel is granted. The Court sets an OSC re striking Defendant’s Answer for failure to have counsel with hearing December 2, 2024.

An attorney is entitled to withdraw upon the consent of the client, or without that consent if approved by the court. (Code Civ. Proc., § 284; Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) In the latter case, counsel must make a motion to be relieved as attorney of record. The motion must be made using mandatory forms: Notice of Motion and Motion to be Relieved as Counsel – Civil (MC-051), Declaration (MC-052), and Proposed Order (MC-053). (Cal. Rules of Court, rule 3.1362, subd. (a), (b), (e).)

The declaration accompanying the motion to be relieved as counsel 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).” (Cal. Rules of Court, rule 3.1362, subd. (b).)

The notice to the client must be done by personal service, electronically, or mail. If it is done via mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration confirming the service address to be the most current residence or that it is the client’s last known address, and the attorney has been unable to locate a more current address. (Cal. Rules of Court, rule 3.1362, subd. (d)(1)(A)-(B).)

Here, Attorney Garfinkel has complied with the Rules of Court by filing all the appropriate forms (MC-051, MC-052, and MC-053). He has also submitted a supporting declaration providing an adequate explanation for why they are moving to be relieved as counsel; he asserts that Defendant Yapstone “has made it unreasonably difficult for the lawyers to carry out the representation effectively” and has failed to adhere to the material terms of its retainer agreement.

Further, Form MC-052 indicates that notice was provided to Defendant via email and personally on the registered agent’s address.

However, trial in this matter is set for the December 3, 2024 – less than a month away. The prejudice to Defendant in granting this motion is substantial; it would almost certainly leave Defendant without an attorney for trial. Defendant has not, however, opposed this motion.

Plaintiff opposes the motion only to the extent that it would delay trial. Plaintiff requests that the Court either (1) condition the order granting the motion on the filing of a notice of appearance by new counsel for Defendant Yapstone within a reasonable period of time in light of the current trial date, or (2) provide that if new counsel does not appear within a specified date, Defendant Yapstone’s Answer to the Complaint will be stricken and a default entered against Defendant Yapstone and in favor of Plaintiff.

This is the second time counsel for Defendant has sought to withdraw, seemingly based on similar grounds. Neither motions to be relieved were opposed by Defendant.

Given the absence of an opposition by Defendant – the party presumably who might be prejudiced – the Court will grant the motion to be relieved as counsel. Trial will proceed on the date scheduled, December 9, 2024 at 9 a.m.[2]

The Court sets an Order to Show Cause re Striking Defendant’s Answer and Defaulting Defendant for December 2, 2024, at 8:30 a.m. in Dept. 58 of the Stanley Mosk Courthouse, 111 No. Hill Street, Los Angeles, for failure to be represented by counsel, unless on or before that hearing, Defendant substitutes in new counsel.

[1] On March 28, 2024, the Court previously granted the motion of Theresa A. Kristovich of Kabat Chapman & Ozmer LLP – Defendant Yapstone Holdings, Inc.’s prior counsel – to be relieved as counsel of record.

[2] Although Defendant, as a corporation, cannot participate in the trial unrepresented, the trial can proceed essentially as a default prove-up. (Code Civ. Proc., § 585, subd. (b).)

Judge Bruce G. Iwasaki

Department 58