Judge: Christian R. Gullon, Case: 20PSCV00406, Date: 2023-12-12 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

Case Number: 20PSCV00406    Hearing Date: February 26, 2024    Dept: O

Tentative Ruling

All motions are granted, effective upon [see below].

Background

This is a fraud case. Plaintiff allege that Defendants used the EB-5 Immigrant Investor Visa Program to defraud Plaintiff Ling Sun out of $170,000 that Plaintiff Ling Sun paid on behalf of her sister, Plaintiff Li Sun.

On June 23, 2020, Plaintiffs filed a complaint.

On April 2, 2021, Plaintiffs filed their second amended complaint for 1. INTENTIONAL MISREPRESENTATION 2. NEGLIGENT MISREPRESENTATION 3. FRAUDULENT CONCEALMENT 4. BREACH OF FIDUCIARY DUTY 5. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 6. BREACH OF ORAL AGREEMENT 7. PROFESSIONAL NEGLIGENCE [Legal Malpractice] 8. COMMON COUNT [Money Had and Received] against Defendants AMERICAN EVERGLOW REGIONAL CENTER, LLC, a California Limited Liability Company; UNIVERSITY CAMPUS HOTEL, LLC, a California Limited Liability Company; UNIVERSITY CAMPUS HOTEL FUND, L.P., a California Limited Partnership; PRIME INVESTMENT INTERNATIONAL, INC., a California Corporation; BLOOMING INVESTMENT GROUP, INC., a California Corporation; PROMI INTERNATIONAL INVESTMENT GROUP, an Unknown Business Entity; HUA GUO, an individual; LORY LIN, an individual; STEVEN QIN, an individual; VANITA S. CHEUNG, an individual, dba CHEUNGS LAW GROUP; and DOES 1-10, Inclusive.

On November 6, 2023, Counsel filed the instant motions.

On November 9, 2023, the following minute order was entered: The Court reviews the written Stipulation Of The Parties To Take Mandatory Settlement Conference Off Calendar signed by Plaintiff's Counsel on 11/07/2023 and by Defendants' Counsels on 11/08/20213 and filed 11/08/2023. The Court approves the Stipulation.

On December 12, 2023, the court continued the hearings on the instant motion pursuant to an oral request by defense counsel.

Discussion

As to each Defendant, Defense Counsel Kevin T. Kay seeks to be relieved as counsel because the clients have breached the terms of the attorney-fee agreement by failing to honor the payment obligation under the fee agreement. Counsel has made repeated requests that the client honor the terms of the fee agreement, but the client has failed to comply.

Here, the failure to make payments as required by a retainer agreement is proper grounds to allow an attorney to withdraw as counsel in the matter. Smith v. Superior Court (1968) 68 Cal.2d 547, 558. As for any prejudice, the matter has settled, indicating little if any prejudice by granting the motions.  Furthermore, Defense Counsel has complied with all California Rules of Court Rule 3.1362 (filed MC-051, 052, and 053 forms) and has appropriately served Plaintiff and Defendants.

Therefore, absent defects, the court grants the motion.

Conclusion

Based on the foregoing, Defense Counsel’s Motion to Be Relieved as Counsel is GRANTED, effective upon serving this court’s order relieving Counsel sent to Plaintiff, Defendant, and all other parties who have appeared in the case.