Judge: Elaine Lu, Case: 21STCV07694, Date: 2023-02-15 Tentative Ruling
1. If you wish to submit on the tentative ruling,
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other parties in the same email) no later than 7:30 am on
the day of the hearing, and please notify all other parties in advance that you
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tentative and elect not to appear at the hearing, the opposing party may
nevertheless appear at the hearing and argue the motion, and the Court may
decide not to adopt the tentative ruling.
2.
For any motion where no parties submit to the tentative ruling in
advance, and no parties appear at the motion hearing, the Court may elect to
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discretion.
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4. IN ORDER TO IMPLEMENT
PHYSICAL DISTANCING GOING FORWARD AND UNTIL FURTHER NOTICE, THE COURT STRONGLY
ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR TELEPHONICALLY FOR NON-TRIAL
AND NON-EVIDENTIARY MATTERS. Thus, until further
notice, Department 26 strongly encourages telephonic appearances for motion
hearings that do not require the presentation of live testimony.
Case Number: 21STCV07694 Hearing Date: February 15, 2023 Dept: 26
| GAMIL YOUSSEF, Plaintiff, vs. ROBERT C. BAKER; BAKER, KEENER, NAHRA, LLP, et al.; Defendants. | Case No.: 21STCV07694 Hearing Date: February 15, 2023 [TENTATIVE] order RE: Motion to be relieved as counsel |
Plaintiff’s counsel, Kenneth H. Stone Esq./The Stone Law Group APC (“Counsel”), moves to be relieved as counsel of record for Plaintiff Gamil Youssef (“Client”). Counsel filed the instant motion to be relieved as counsel on January 18, 2023. On January 30, 2023, Client filed an opposition.
Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 pursuant to CRC Rule 3.1362.
Counsel served Client at Client’s last known mailing address, which Counsel states he has confirmed as current within 30 days of the motion by conversation. Counsel also served this motion on all other parties in the case.
Client’s Opposition
In opposition, Client claims that the instant motion should be denied because (1) Client will suffer prejudice, and (2) Counsel fails to provide a good reason to withdraw.
In Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, the Court of Appeal – in relevant part – concluded that there was “no authority preventing an attorney from withdrawing from a case when withdrawal can be accomplished without undue prejudice to the client's interests.” (Id. at p.915.) Thus, absent undue prejudice to the client’s interest, the Court of Appeal concluded that the attorney had a right to withdraw representation without cause. (Ibid.)
Similarly, in People v. Prince (1968) 268 Cal.App.2d 398, the Court of Appeal noted that “[t]he question of granting or denying an application of an attorney to withdraw as counsel (Code Civ.Proc. s 284, subd. 2) is one which lies within the sound discretion of the trial court ‘having in mind whether such withdrawal might work an injustice in the handling of the case.’ [Citations.]” (People v. Prince (1968) 268 Cal.App.2d 398, 406.) In Prince, the Court of Appeal concluded that the grant of a motion to be relieved of a defense attorney in a criminal action was not an abuse of discretion where “the motion was timely made, before the case was set for trial, and there is no showing that the withdrawal prejudiced the defendant, the prosecution, or the smooth course of administration of justice.” (Ibid.)
Here, Client claims that prejudice would result from the Court permitting Counsel to resign because there are pending discovery requests that Defendants have served, and Client “contacted over 100 legal malpractice and professional liability attorneys and law firms in Los Angeles County and other Counties in California and is not able to find any attorney to represent him in this case[.]” (Youssef Decl. ¶ 3.) Neither pending discovery nor Client’s difficulty in finding new counsel demonstrate undue prejudice. The instant malpractice action has been pending for approximately two years during which the instant action was stayed for a few months due to a pending appeal of the underlying action. As Client admits, very little discovery has occurred in the instant action. (Youssef Decl. ¶ 3(d).) Further, there are no pending dispositive motions that would indicate any prejudice that would arise by Counsel’s withdrawal at this time. Moreover, trial is not scheduled to commence until November 27, 2023 – more than nine months away. As to discovery, Client can request an extension to respond if needed. Thus, there is no indication that Counsel is leaving at a prejudicial time in litigation.
In sum, the Court finds that no prejudice will arise from the Court’s granting of Counsel’s motion to be relieved.
However, the Court does agree that Counsel fails to provide good cause to be relieved.
Failure to Articulate Good Cause to Be Relieved
On Form MC-052, the only reason Counsel sets forth for the instant motion to be relieved is that “Client is unwilling to execute a Substitution of Attorney. Withdrawal is required by California Rules of Professional Conduct 1.16(b).” This is insufficient to warrant being relieved as counsel.
The declaration denotes that Counsel has filed the instant motion to be relieved because the Client will not execute a Substitution of Attorney. However, there is no explanation as to why Counsel is seeking to withdraw in the first place. California Rules of Professional Conduct 1.16(b) provides numerous reasons for why Counsel may witdraw. A broad citation to this section without any citation to a specific subsection or further explanation– especially when the Client vehemently opposes the motion to be relieve – fails to provide any basis for withdrawal.
“The trial court need not ‘accept a sweeping claim of conflict and “rubber stamp” counsel's request to withdraw.’” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1134.) Here, no reason has been provided as to why Counsel must withdraw.
Accordingly, the instant motion is CONTINUED TO February 27, 2023 at 8:30 am. No later than February 17, 2023, Counsel must file and serve an amended motion and declaration on Judicial Council forms MC-051 and MC-052 providing some explanation as to why Counsel is seeking to withdraw and file a declaration specifying such reason – without revealing confidential communications or inforamtion.
Counsel is to give notice of this order to all parties, including Client, and file proof of service of such no later than February 16, 2023.
DATED: February 15, 2023 ___________________________
Elaine Lu
Judge of the Superior Court