Judge: Christian R. Gullon, Case: 24PSCV00381, Date: 2025-03-03 Tentative Ruling

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Case Number: 24PSCV00381    Hearing Date: March 3, 2025    Dept: O

Tentative Ruling

MOTIONS TO BE RELIEVED AS COUNSEL FOR DEFENDANT RACHEL BOESE AKA RACHEL CLINESMEITH AND DEFENDANT VAMPYRE COSMETICS, LLC ARE GRANTED. 

Background

This case arises from a business partnership dispute(s). Plaintiff Karen Holton alleges the following against Defendants Vampyre Cosmetics, LLC (the “Company”); Rachel Boese aka Rachel Clinesmith (“Defendant” or “Boese”); and Lisa Malcolm (“Malcolm”): Plaintiff, the COO, and Defendant, founder, have a 37.5% interest in the Company and Malcolm (now resigned) has a 25% interest in the Company. Since joining in 2022, Plaintiff, amongst other actions and responsibilities, made personal loans to the Company, created products, and allowed Defendants to use Plaintiff’s credit to access capital. However, starting around June 25, 2023, Defendants froze Plaintiff out of the Company by removing her access to the business checking accounts, revoking her access to viewing the Company’s financial date, cutting her access to the Company’s email and chat, have refused to provide Plaintiff access to the Company books and financial records, and have engaged in gross mismanagement and fraud. Examples of the alleged fraud include: (i) stealing Plaintiff’s personal information to take out new loans, (ii) stealing Plaintiff’s intellectual property to manufacture new products and increase product sales; (iii) Boese has diverted funds and loans to Boese’s other business, Undead Magazine.

On February 6, 2024, Plaintiff filed suit.

On February 16, 2024, Plaintiff filed a Motion for Appointment Of Receiver For Vampyre Cosmetics, LLC.

On March 29, 2024, Malcolm filed a joinder to the receiver motion.

On April 2, 2024, Plaintiff filed a Verified FAC asserting the following fourteen (14) causes of action (COAs) against Defendants:

1.     Breach Of Contract – Operating Agreement

2.     Breach Of Promissory Note

3.     Breach Of Fiduciary Duty

4.     Breach Of Implied Covenant Of Good Faith And Fair Dealing

5.     Fraud

6.     Conversion

7.     Unlawful And Unfair Business Practices (Cal B&P § 17200)

8.     Money Lent

9.     Account Stated

10.  Unjust Enrichment – Constructive Trust

11.  Preliminary And Permanent Injunctive Relief

12.  Declaratory Relief

13.  Fraudulent Conveyance

14.  Involuntary Dissolution

On April 10, 2024, Plaintiff filed two doe amendments naming Joseph Keens as Doe 1 and Phoenix Rising Cosmetics, LLC as Doe 2.

On April 11, 2024, Defendant Boese filed a Motion to Stay Proceedings and Appoint Appraisers to Buy Out Plaintiff’s Membership Interests in Vampyre Cosmetics, LLC.

On April 15, 2024, the Court conducted the hearing on the receiver motion and continued the matter as the motion appeared moot in light of Plaintiff’s majority voting interest in the company. According to Defense Counsel Yu, on 3/30/24, Plaintiff and Malcolm entered into a settlement whereby Malcolm would provide Plaintiff with an irrevocable proxy and join in this Motion in exchange for a dismissal from this action.

On April 19, 2024, Plaintiff dismissed Lisa Malcolm on all COAs except the involuntary dissolution COA. 

On April 25, 2024, Plaintiff dismissed the 14^th COA for involuntary dissolution.

On May 8, 2024, after hearing, the Court granted the Motion to Stay Proceedings and Appoint Appraisers to Buy Out Plaintiff’s Membership Interest in Vampyre Cosmetics, LLC. The Court stayed this action in its entirety.

On November 18, 2024, Kahana & Feld LLP filed and served the instant respective motions to be relieved as counsel for Defendants Rachel Boese aka Rachel Clinesmith and Vampyre Cosmetics, LLC.

The Court will address the motions to be relieved as counsel in this one ruling.

Legal Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.)  

An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.1362(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). The proposed order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. (Cal. Rules of Court, rule 3.1362(e).)

Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) 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. (Cal. Rules of Court, rule 3.1362(e).) A motion to withdraw will not be granted where withdrawal would prejudice the client. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) 

Discussion

Motion to be Relieved as Counsel for Defendant Rachel Boese aka Rachel Clinesmith

Kahana & Feld LLP seeks to be relieved as counsel for Defendant Boese.

In support of the motion, Sharon Oh-Kubisich, Esq. (“Kubisich”) declares that there has been an irreconcilable breakdown of the attorney-client relationship and Defendant Boese is in breach of the Engagement Agreement.  

Counsel declares that Defendant Boese’s current address was confirmed within the past 30 days by conversation.  (See Form MC-052 at ¶ 3(b)(1)(c).) Defendant Boese was served with the motion and supporting papers via mail and e-mail. The Court finds that Counsel has set forth valid reasons to be relieved as counsel for Defendant Boese. Counsel has filed the requisite forms, and such forms are compliant with Cal. Rules of Court, Rule 3.1362.

The Court finds that Counsel has served Defendant Boese at her last known address. Moreover, Counsel has submitted a proof of service on all parties who have appeared.

The Court GRANTS the Motion to be Relieved as Counsel for Defendant Rachel Boese aka Rachel Clinesmith.

Motion to be Relieved as Counsel for Defendant Vampyre Cosmetics, LLC

Kahana & Feld LLP seeks to be relieved as counsel for Defendant Vampyre Cosmetics, LLC.

In support of the motion, Sharon Oh-Kubisich, Esq. (“Kubisich”) declares that there has been an irreconcilable breakdown of the attorney-client relationship and Defendant Vampyre Cosmetics, LLC is in breach of the Engagement Agreement. 

Counsel declares that Defendant Vampyre Cosmetics, LLC’s current address was confirmed within the past 30 days by conversation.  (See Form MC-052 at ¶ 3(b)(1)(c).) Defendant Vampyre Cosmetics, LLC was served with the motion and supporting papers via mail and e-mail. The Court finds that Counsel has set forth valid reasons to be relieved as counsel for Defendant Vampyre Cosmetics, LLC. Counsel has filed the requisite forms, and such forms are compliant with Cal. Rules of Court, Rule 3.1362.

The Court finds that Counsel has served Defendant Vampyre Cosmetics, LLC at its last known address. Moreover, Counsel has submitted a proof of service on all parties who have appeared.

Defendant Vampyre Cosmetics, LLC is a corporate entity and cannot appear in this action without an attorney. “A corporation cannot appear in court by an officer who is not an attorney and it cannot appear in propria persona.” (Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898, citations omitted.) Thus, while the Court will grant the Motion to be Relieved as Counsel for Defendant Vampyre Cosmetics, LLC, the Court will set an OSC re: Defendant Vampyre Cosmetics, LLC retaining new counsel.

The Court GRANTS the Motion to be Relieved as Counsel for Defendant Vampyre Cosmetics, LLC.

Conclusion

The Motions to be Relieved as Counsel for Defendant Rachel Boese aka Rachel Clinesmith and Defendant Vampyre Cosmetics, LLC are GRANTED.