Judge: David S. Cunningham, Case: 22STCV40626, Date: 2025-02-04 Tentative Ruling

Case Number: 22STCV40626    Hearing Date: February 4, 2025    Dept: 11

Hernandez (22STCV40626)

Tentative Ruling Re: Motion to Be Relieved as Counsel

Date:                         2/4/25

Time:                        2:30 pm

Moving Party:          Chanho C. Joo (“Joo”)

Opposing Party:       None

Department:             11

Judge:                       David S. Cunningham III

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TENTATIVE RULING

Joo’s motion to be relieved as counsel is granted.

The Court intends to:

* set an order to show cause regarding new counsel; and

* continue the February 6, 2025 hearing on the motion to enforce settlement to the date of the order to show cause.

BACKGROUND

This is a wage-and-hour action.

Here, Joo moves to be relieved as counsel for Ducksung, Inc. dba Pro 5 Apparel (“Ducksung”).

LAW

“If the attorney is the moving party, the right to withdraw is conditioned on proper notice and a showing of why a court order is required (i.e., why substitution by mutual consent not obtained). [Citation.]”  (Edmon & Karnow, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group June 2023 Update) ¶ 9:385.)

“The attorney must disclose enough information to satisfy the court that grounds exists for relieving the attorney.”  (Ibid.)  “(Grounds most often asserted are the client's breach of the retainer agreement, the client's refusal to follow the attorney's advice or other conduct showing a breakdown of the attorney-client relationship.)”  (Ibid.)

“Where the ground claimed is a ‘conflict of interest’ with the client, the attorney must describe the general nature of the conflict as fully as possible, within the confines of the attorney-client privilege. [Citation.]”  (Ibid., emphasis in original.)

“Forms adopted by the Judicial Council must be used for the notice of motion and motion to be relieved as counsel, supporting declaration and order. [Citations.]”  (Id. at ¶ 9:385.10.)

“Failure to use these forms is a common error in seeking to be relieved as counsel. Judges should never grant the motion if it is not on the Judicial Council forms.”  (Id. at ¶ 9:385.11.)

“The second most common error is failure to check all the applicable boxes and to provide all the information required by the forms.  If these forms are completed properly, no other papers are ordinarily required.”  (Ibid.)

“The notice of motion must be directed to the client and must be on the Judicial Council form. [Citation.]”  (Id. at ¶ 9:386.)

“The notice must be accompanied by counsel's declaration showing why a substitution of attorneys by consent could not be obtained.  Such declaration must be stated ‘in general terms and without compromising the confidentiality of the attorney-client relationship.’ [Citation.]”  (Id. at ¶ 9:387.)

“When the client is served by mail, the attorney's declaration must show that the client's address was confirmed within the last 30 days and how it was confirmed (i.e., by conversation, telephone, or mail with return receipt requested). [Citation.]”  (Id. at ¶ 9:389, emphasis in original.)

If the attorney is unable to confirm that the client's address is current, the attorney's declaration must state what was done in attempting to obtain a current address, such as:

— mailing the motion papers to the client's last known address with return receipt requested;

— calling the client's last known telephone number(s);

— contacting persons familiar with the client (specify);

— conducting a search (describe); and

— other efforts, which must be specified. [Citation.]

(Id. at ¶ 9:391.)

“Counsel must also justify why he or she should be relieved even if the client cannot be served with the moving papers.”  (Ibid.)

“If the attorney's declaration establishes that the client's residence address is unknown despite reasonable efforts to locate the client, the client can be served by delivering the moving papers to the court clerk. [Citations.]”  (Ibid., emphasis in original.)

“The papers must be placed in an envelope addressed to the clerk and prepared in accordance with [California Rule of Court] 3.252.”  (Ibid.)

DISCUSSION

Given these rules, the Court grants Joo’s motion because:

* the motion is unopposed;

* Joo used the correct Judicial Council forms;

* Joo served copies of the moving papers by personal service (see Joo Decl., ¶ 3.a.(1));

* the only pending motion is a motion to enforce settlement;

* trial is not set; and

* Joo filed the requisite proof of service.

The Court finds that an order to show cause regarding new counsel needs to be set.  Ducksung is a corporation and cannot represent itself.  It needs to receive an opportunity to hire new counsel. 

The hearing date for the motion to enforce settlement is February 6, 2025.  The Court believes the February 6^th hearing should be continued to the date of the order to show so that Ducksung can be represented by new counsel at the hearing.