Judge Deirdre Hill, Case 19TRCV00757 2022-07-28 Tentative Ruling

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Moving Parties: Attorney Michael S. Brown, Esq., counsel for defendants National Transportation Inc. and NTI-CA, Inc.

The motions are GRANTED. The court orders that the attorney is relieved as counsel of record for defendants National Transportation Inc. and NTI-CA, Inc., effective upon the filing of the proofs of service of the signed “Order Granting Attorney’s Motion to Be Relieved as Counsel – Civil” (Judicial Council form MC-053) upon the clients.

An OSC re: why defendants’ answers should not be stricken and default entered for failure to be represented by counsel is set for ________________.

On August 30, 2019, plaintiff EDPO LLC dba Expo Propane filed a complaint against Destination Shuttle Services, LLC, Brain Lott, Jack Lott, National Transportation Inc., NTI-CA Inc. dba NTI Ground Trans, John Kindt, James Gleich each dba Destination Shuttle Services for (1) breach of written contract, (2) breach of oral agreement, (3) book account, (4) account stated, (5) quantum meruit, and (6) goods sold and delivered. Plaintiff alleges that it is a supplier of propane. On April 24, 2009, plaintiff and defendants Destination Shuttle Services (“DSS” or “Destination Shuttle”) and Brian and Jack Lott (“DSS defendants”) entered into a written agreement whereby plaintiff agreed to provide propane and related equipment and DSS defendants agreed to pay. DSS defendants ordered and received propane from plaintiff from November 30, 2018 through February 28, 2019.

Plaintiff further alleges that on March 11, 2019, DSS defendants sold Destination Shuttle Services to National Transportation Inc., NTI-CA Inc. dba NTI Ground Trans, John Kindt, James Gleich (“NTI defendants”). On March 13, 2019, Brian Lott represented to plaintiff that the NTI defendants would be assuming the debt to plaintiff. Thereafter, the NTI defendants represented to plaintiff that they were responsible for paying past due amounts as well as any continuing purchases. Commencing May 3, 2019 and continuing through June 30, 2019, the NTI defendants requested and received propane gas from plaintiff. All of the propane requested and received by all defendants was delivered at all times to the same address.

Plaintiff further alleges that the total amount of goods and services purchased from plaintiff was $283,214.14.

On November 1, 2019, DSS and Brian William Lott filed a cross-complaint against NTI-CA Inc. for express indemnity and declaratory relief.

On December 23, 2019, Brian Lott filed a request for dismissal of the cross-complaint as to him.

On July 22, 2020, the court granted plaintiff’s application for a right to attach order against NTI in the amount of $97,980. Plaintiff was ordered to file an undertaking in the amount of $10,000.

On December 2, 2020, the court overruled NTI’s demurrer to the SAC as to the 2^nd, 3^rd, 5^th, and 6^th causes of action and sustained with leave to amend the demurrer to the 4^th cause of action.

On December 8, 2020, the court granted plaintiff’s application for issuance of additional writ of attachment in the amount of $29,746.16 against NTI. The court also granted plaintiff’s application for issuance of a right to attach order and writ of attachment against Destination Shuttle in the amount of $203,887.85 and ordered plaintiff to file an undertaking in the amount of $10,000.

On December 23, 2020, the court issued a writ of attachment against Destination Shuttle in the amount of $203,887.85. Plaintiff filed an undertaking in the amount of $10,000.

On January 19, 2021, NTI-CA Inc. filed a cross-complaint against DSS, Brian Lott, and Jack Lott for (1) breach of contract, (2) conversion, (3) intentional fraud by misrepresentation, (4) intentional fraud by concealment, (5) promissory fraud, (6) negligent fraud by misrepresentation, (7) negligent fraud by concealment, (8) constructive fraud, (9) fraudulent inducement into a contract, (10) tortious breach of implied covenant of good faith and fair dealing, (11) common law conspiracy, and (12) constructive trust.

On September 23, 2021, the court granted Destination Shuttle Services’ motion to compel further responses to request for production of documents, set two, Nos. 9, 10, 11, 12, 14, and 15, within 20 days. NTI-CA and attorney Michael Brown were ordered to pay attorney’s fees in the amount of $6,000 to DSS within 30 days.

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. See Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915; People v. Prince (1968) 268 Cal. App. 2d 398.

CRC Rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (“and must be made” on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating 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) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)).

Defendants National Transportation Inc. and NTI-CA, Inc’s attorney of record Michael S. Brown, Esq. seeks to be relieved as counsel.

Counsel Brown states in his declaration that the clients have recently emerged from bankruptcy, which resulted in a change in ownership and management. He further states that “[i]rreconcilable difference[s] have arisen between client and attorney making it unreasonably difficult to carry out the employment effectively.”

The court finds that the attorney submitted a declaration establishing that the service requirements of California Rules of Court, Rule 3.1362, have been satisfied. The court also finds that the attorney has shown sufficient reasons why the motion to be relieved as counsel should be granted.