Judge: Elaine Lu, Case: 20STCV31330, Date: 2023-05-24 Tentative Ruling

Case Number: 20STCV31330    Hearing Date: May 24, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Plaintiff’s counsel, Dana Delman, Esq., Delman Vukmanovic LLP (“Counsel”), moves to be relieved as counsel for Plaintiff Suk Ki Min (“Client”).  Counsel filed the instant motion to be relieved as counsel on April 28, 2023.  On May 2, 2023, the Court noted that the motion to be relieved was set only a few days before trial and that a supplemental declaration would be necessary. 

Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed orders on form MC-053 pursuant to CRC Rule 3.1362. 

The MC-052 form states that Counsel served Client via mail at Client’s last known mailing address, which Counsel states she has confirmed as current within 30 days of the motion by a Trans Union skip trace for the Client dated April 9, 2023 and through the statement of information for Plaintiff FCDP1, Inc. 

Counsel states that relief is necessary because “[Client] has breached a material term of the written engagement agreement with [Counsel] … [Counsel] has given [Client a reasonable warning after the breach that she will withdraw unless [Client] fulfills the agreement or performs the obligation.”  In supplemental declaration, Counsel states that “Plaintiffs failed to pay my invoice dated October 10, 2022. Suk Ki Min, who is also the sole owner of Plaintiff FCDP1, Inc., did not respond to the several calls, texts and emails [Counsel] sent asking for payment and asking him to find new counsel. [Counsel] also warned Mr. Min that if payment wasn’t made [Counsel] would seek to withdraw as counsel of record. [Counsel’s] first warning was in mid-November 2022, and [Counsel] followed up with several more. Mr. Min did not respond to any of [Counsel’s] communications, but he has known that he should either pay his bill or seek new counsel as far back as November 2022, with several reminders sent since then. Mr. Min will not be prejudiced because he has known since mid-November 2022 that he should either pay the bill or he would require new counsel to try this case.”  (Delman 5/5/23 Decl. ¶ 2.) 

The Court notes that the Final Status Conference was scheduled for yesterday, May 23, 2023.  Likewise, trial is set for June 5, 2023 – a mere six court days away.  Yet, Counsel did not file the instant motion until April 28, 2023 – a mere 38 days before trial. 

Mere nonpayment of fees is insufficient to justify the extreme prejudice to all parties of granting the instant motion to be relieved.  For example, in Linn v. Superior Court in and for Los Angeles County (1926) 79 Cal.App. 721, the Court of Appeals affirmed the trial court’s denial of a motion to withdraw, based on nonpayment of fees, as it was made nine days before trial.  The Court of Appeals found that “[i]t is undoubtedly true that in the great majority of instances the attorney should be permitted to withdraw, but as an officer of the court he should not be permitted to withdraw if his withdrawal will work injustice upon a third party.”  (Linn v. Superior Court in and for Los Angeles County (1926) 79 Cal.App. 721, 725.)  Here, granting a motion to be relieved a mere six court days before trial would undoubtedly prejudice all parties.  Counsel fails to justify her substantial delay in seeking to withdraw after she has known months about her client’s non-payment of fees -- since October of 2022.  Counsel fails to identify any valid reason she waited six months before bringing the instant motion, which has resulted in extreme prejudice to all parties.

Further, the supplemental declaration is still unclear whether Counsel has validated Client’s current address or has even properly served the instant motion to be relieved.  California Rules of Court Rule 3.1362 requires that Counsel confirm Client’s address “within 30 days before the filing of the motion to be relieved.”  Rule 3.1362 further provides that if Counsel is unable to confirm the address as current that a declaration showing “[t]he service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.”  (Id. at (d)(1)(B), [italics added].)  Here, Counsel claims to have skip traced Client nearly twenty days before filing the instant motion.  However, Counsel states in declaration that Client has not responded to Counsel’s calls, texts, and emails for over six months.  (Delman 5/5/23 Decl. ¶ 2.)  As such, a skip trace indicating Client’s address by itself does not appear sufficient in light of the complete lack of communication for six months. 

Rule 3.1362’s requirement that Client’s address be confirmed as current within 30 days of Counsel’s motion to be relieved is not a mere technicality without a purpose.  If the Court grants Counsel’s motion to be relieved without requiring a current, working address for Client, neither the Court nor the other parties will have the ability to serve Client with pleadings, motions, and orders, which implicates due process concerns.

“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.)  Moreover, the court has discretion to allow an attorney to withdraw provided that there is no prejudice to the client, and withdrawal does not disrupt the orderly process of justice.  (See Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.)  The Court questions why Counsel seeks to withdraw at this late of a stage in this action.  As noted in her declaration, Counsel was aware of non-payment for approximately six months before she filed the instant motions to be relieved.  In light of the substantial prejudice to both the Clients and the Petitioners arising from the significant delay, the non-payment of fees is insufficient to warrant Counsel’s eleventh hour motion to be relieved.

As such, the motion to be relieved is denied.

CONCLUSION AND ORDER

The motions filed by Dana Delman, Esq., Delman Vukmanovic LLP to be relieved as counsel for Plaintiff Suk Ki Min is denied.

FINAL STATUS CONFERENCE

All parties confirmed in court yesterday that they waive jury and that this matter will proceed as a bench trial.

All parties are ordered to download from the court’s website (www.lacourt.org) the standing FSC and trial preparation order for this department (Department 26). All parties must comply with the requirements in Department 26's FSC/trial preparation order.

No later than 10 am on May 26, 2023, the parties are to complete their exchange of all non-impeachment exhibits.

No later than 10 am on May 26, 2023, the parties are to file revised versions of the following trial preparation documents, consistent with Department 26's FSC/trial preparation order:

-           A revised joint exhibit list identifying the universe of all non-impeachment exhibits that all parties wish to introduce at trial.  The revised joint exhibit list must have columns reflecting: “Exhibit #,” “Description,” "Admissibility stipulated?," "Authenticity stipulated?" "Offered by?" "Objections," "Date Identified," and "Date Admitted.”  All columns except for the last two columns must be fully completed for each exhibit listed.

-           A revised joint witness list identifying the universe of all witnesses that all parties wish to call at trial with columns for time estimates for "direct examination," "cross examination," "redirect," and "total," fully completed for each witness, and a grand total for all witnesses’ testimony at the bottom.

-           A trial brief from each party that identifies the elements for each cause of action of the operative complaint, with a citation to the applicable CACI that sets forth these elements.

Failure of any party to comply with the Court's order above requiring preparation of a joint witness list and joint exhibit list may result in exclusion at trial of non-impeachment exhibits and non-impeachment witnesses that the parties have failed to identify on the witness list and exhibit list.

The Court requests that the parties email Word format versions of their respective trial briefs.

No later than 3 pm on May 26, 2023, Plaintiff must arrange for one joint trial readiness binder to be delivered to Department 26 in compliance with Department 26's FSC/trial preparation order, including  conformed copies of: all operative pleadings, the revised joint exhibit list, the revised joint witness list, and the trial briefs, all in conformity with Department 26’s standing FSC/trial preparation order.  The documents must be separated by labelled tabs.

The parties must also arrange for three copies of the parties’ joint exhibit binder (containing all parties’ exhibits, each properly tabbed, with each page properly paginated to reflect the exhibit number and page number) to be delivered to Department 26 prior to the continued FSC date.  Failure of any party to comply with this order requiring delivery of joint exhibit binders may result in exclusion at trial of non-impeachment exhibits that the parties have failed to include in the exhibit binders delivered to Department 26.

The parties must meet and confer to discuss whether they plan to have a court reporter transcribe the trial proceedings.  In order to ensure a proper record for appellate purposes, if the parties do not arrange for a court reporter, then Counsel for the parties will be required to prepare a daily settled statement of witnesses' testimony who have testified each day at trial.

If any party will need a foreign language interpreter to assist any trial witnesses, that party must reserve and make arrangements in advance for the interpreters that party will need.

The Final Status conference is continued to May 31, 2023 at 9:00 am.

The trial remains firmly set for June 5, 2023 at 9:30 am.

Moving party, Plaintiff’s Counsel, is ordered to give notice to all parties.

DATED: May 24, 2023                                                          ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court