Judge: Cherol J. Nellon, Case: 19STCV05221, Date: 2023-08-09 Tentative Ruling
Case Number: 19STCV05221 Hearing Date: February 26, 2024 Dept: 14
Meredith v. Tissera, et al
Case Background
This case arises from a dispute
over the sale and attempted importation of 16 Japanese sports cars (more
precisely, 16 Nissan Skyline GT-Rs). Plaintiff alleges that Defendants told him
they were experts in vehicle importation and could deliver these specific
vehicles to him with a minimum of fuss. Plaintiff further alleges that he paid
nearly $4 million for the vehicles, only to discover that Defendants did not
own them, could not own them, and had no way to deliver them as promised. Defendants
in turn allege that they delivered at least one car, and Plaintiff refused to
pay for it.
On February
15, 2019, Plaintiff Edwin Hammond Meredith (“Meredith” or “Plaintiff”) filed his
Complaint for (1) Fraud; (2) Violation of the Consumer Legal Remedies Act; (3)
Violation of Civil Code §§ 1790 et seq; (4) Fraud – Violation of Penal
Code § 470(d); (5) Breach of Contract; (6) Breach of the Covenant of Good
Faith and Fair Dealing; (7) Negligence Per Se; and (8) Negligence against
Defendants Franz Gerald Tissera (“Franz”); Phase9MotorSports, Inc. (“Phase 9”);
and DOES 1-20. On March 13, 2019, Defendants Franz and Phase 9 filed their
Answer.
On May 13,
2019 Plaintiff filed two “Amendments to Complaint,” substituting Defendants
Angela J. Chisholm (“Chisholm”) and Frederick Tissera (“Frederick”) in lieu of
DOES 1-2, respectively. On October 31, 2019, this court sustained the demurrer
of Defendants Chisholm and Frederick, with leave to amend.
On November
21, 2019 Plaintiff filed his First Amended Complaint (“FAC”) for (1) Fraud; (2)
Violation of the Consumer Legal Remedies Act; (3) Violation of Civil Code
§§ 1790 et seq; (4) Negligence Per Se; (5) Negligence; (6)-(21) Breach of
Contract; and (22) Conversion against Defendants Franz, Chisholm, Frederick,
Phase 9, and DOES 1-20. The 1st cause of action is asserted against
Defendants Franz, Chisholm, and Frederick only; the 2nd, 3rd,
and 6th-21st causes of action are asserted against Phase
9 only. On May 5, 2021, Defendants Franz, Chisholm, Frederick, and Phase 9
filed their joint First Amended Answer.
On November
18, 2019, Defendants Franz and Phase 9 Filed their Third Amended
Cross-Complaint (“TAXC”) for (1) Breach of Contract; (2) Breach of the Implied
Covenant; and (3) Quantum Meruit against Plaintiff/Cross-Defendant Meredith and
ROES 1-20. On February 18, 2020, Plaintiff/Cross-Defendant Meredith filed his
Answer.
Jury Trial
is set for February 26, 2024.
Instant Motion
Attorney Bradley J. Yourist (“Yourist”)
now seeks to be relieved as counsel of record for Plaintiff.
Decision
The motion is DENIED.
Governing Rule
California
Rules of Court Rule 3.1362 requires that counsel fill out forms MC-051, MC-052,
and MC-053. These forms serve two basic functions: (1) ensuring that notice is
given to the client and (2) providing the court with an adequate explanation of
why the matter is being handled via motion rather than mutual consent. See Code
of Civil Procedure § 284; California Rules of Court Rule 3.1362.
Discussion
Counsel Yourist has completed the
required forms. This is the second such motion he has brought in the past six
months. A brief recapitulation of the record is therefore appropriate.
Previous Motion
The first motion was filed on July
25, 2023, with trial set for August 14, 2023. Mr. Yourist and his
then-co-counsel, Mr. Michael Nangano, filed identical supporting declarations
asserting unspecified “irreconcilable difference” and “unresolved conflict.”
Two days later, Plaintiff filed an opposition, identifying the issue as arising
out of a dispute concerning the respective roles of Mr. Yourist and Mr.
Nangano. According to Plaintiff, Mr. Yourist elected to bring Mr. Nangano into
the case and make him lead trial counsel because Mr. Yourist had not tried a
case in years and did not feel comfortable. Plaintiff took the position that he
had hired Mr. Yourist, not Mr. Nangano, but he still wanted to go to trial and
wanted both counsel to be there.
The court heard the motion on shortened
time and denied it on August 9, 2023, finding that the case was too old, trial
was too close, and there would be severe prejudice to Plaintiff. The case went
on, and trial was ultimately continued to the present date for other, unrelated
and unforeseen reasons.
Current Motion
A misunderstanding developed
between counsel and Plaintiff about whether this case was being “overseen” by a
“board of trustees.” (Declaration of Bradley Yourist filed January 12, 2024,
¶ 7). Whatever the rights and wrongs of that issue, it is undisputed that in
mid-December 2023 Plaintiff decided to replace Mr. Nangano with new counsel –
Ms. Mariam E. Hanna. Mr. Yourist was told of this decision in a phone call that
occurred on December 15, 2023.
Accounts of this phone call differ
somewhat. Mr. Yourist testifies that he objected to the replacement of Mr.
Nangano, asked to be replaced himself, and was ultimately the subject of a
threat in the form of the following words from Plaintiff: “if I were in the
same room as you right now, I would get in your face.” (Declaration of Bradley
Yourist filed January 12, 2024, ¶¶ 7-8). Plaintiff maintains that Mr.
Yourist indicated his intent to stick with the case. (Declaration of Edwin
Hammond Meredith p. 2:26-27).
Later, Mr. Yourist and Ms. Hanna
exchanged emails. In those messages, Mr. Yourist objects to Plaintiff’s “decision
to dismiss my chosen trial counsel” (meaning Mr. Nangano) and compares the prospect
of working with Ms. Hanna to slavery. (Declaration of Bradley Yourist filed January
12, 2024, exhibit 1). On January 3, 2024, Mr. Yourist received notice from Ms.
Mariam E. Hanna that Plaintiff had executed the substitution of attorney which
would formally remove Mr. Nangano. (Declaration of Bradley Yourist filed January
12, 2024, exhibit 2). That substitution was actually filed in this case on
January 16, 2024.
Analysis
The
procedural situation on this motion is, if anything, worse than it was before.
The case is now five years old. The motion for relief is being heard the day of
trial. Mr. Yourist is now the only attorney in the case who has been present
for the entirety of the proceedings. The conditions which led the court to deny
the previous motion have only become stronger.
Mr. Yourist
does offer more specific reasons for the motion than he did before. However,
those reasons are simply not persuasive. The statement over the phone “if I
were there I would get in your face” is an expression of exasperation, not a
credible threat of physical violence. Nor would it violate the Thirteenth
Amendment if Mr. Yourist had to work with someone new. It is the client
who has the right to counsel of his choice, not the attorney who has the right
to co-counsel of his choice.
Conclusion
Counsel has
failed to articulate a basis for either mandatory or permissive withdrawal
under California Rules of Professional Conduct Rule 1.16. His withdrawal would
severely prejudice both his own client and the other party. The motion is DENIED.