Judge: Elaine Lu, Case: 21STCV07694, Date: 2023-02-27 Tentative Ruling

Case Number: 21STCV07694    Hearing Date: February 27, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

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.  On February 15, 2023, the Court continued the instant motion for Counsel to serve an amended motion specifying why Counsel seeks to resign.  (Minute Order 2/15/23.)  On February 15, 2023, Counsel filed an amended motion to be relieved.  On February 17, 2023, Client filed a supplemental opposition.  On February 22, 2023, Counsel filed a reply.

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 states in the amended declaration states that if the appeal of the underlying case of the attorney fee award was not successful, Client had a meritorious claim against the Defendants for failing to represent him in the post-trial motions that should have resulted in either no attorney fee award or an attorney fee award in favor of Defendant.  (Stone Decl. ¶ 2.)  However, Counsel issued subpoenas to Client’s prospective employers but was unable to obtain any documents.  (Stone Decl. ¶ 3.)  Counsel also concluded that to in order to prevail on the Client’s other claims Counsel would need to develop evidence showing that the various employers who failed to hire him had done so based on the County of Los Angeles' mischaracterization of his termination, and/or based on false statements communicated by the County of Los Angeles to prospective employers.  (Stone Decl. ¶ 2.)  As Client was successful in appealing the attorney fee award, and Counsel has been unable to obtain evidence that Counsel deems necessary, Counsel does not believe that he can effectively represent Client.  (Stone Decl. ¶¶ 3-4.)  Counsel and Client have a disagreement of opinion as to how this case should proceed leading to an irreconcilable breakdown in the attorney-client relationship.

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 supplemental opposition, Client again claims that the instant motion should be denied because Client will suffer prejudice.

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[.]”  (Supp. 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, Counsel has already obtained for Client an extension to respond.  (Supp. Stone Decl. ¶ 8.)  Thus, there is no indication that Counsel is leaving at a prejudicial time in litigation.  Moreover, as explained in Counsel’s declaration there is a clear breakdown in Client and Counsel’s belief in the probability of prevailing.  Thus, forcing Counsel to represent Client in the instant action would likely cause Client more prejudice.

In sum, the Court finds that no prejudice will arise from the Court’s granting of Counsel’s motion to be relieved. 

Motion to be Relieved

Based on the notice of motion and the declaration filed by Counsel, the Court is inclined to grant the motion. The proposed order must identify all upcoming hearings and list the address of the Court in all items.  The proposed order on form MC-053 must include the following additional language:

-          In Item 9, Counsel must also include the following language “Failure to appear at trial will result in dismissal of this action.”

-          Item 13:  “Moving Counsel is ordered to serve all parties, including Client, with a copy of this signed order and file proof of service of such within three days.”  Counsel must also add in item 13 the discovery responses that are outstanding, the due date, and the address where verified responses must be sent.

Counsel is responsible for determining if there are any other hearings scheduled or due dates for discovery for this case, including any motions hearings, which must all be listed in the proposed order.  For each hearing, Counsel must state the date, time, and location of the hearing including the address and Department number as follows: “111 N. Hill St., Dept. 26, Los Angeles, CA 90012.”  For each due date for discovery, Counsel must identify the nature of the discovery responses that are outstanding, the due date, and the address where verified responses must be sent.

Provided that Counsel electronically files a revised proposed order before the hearing on this motion, the motion to be relieved as counsel will be granted.  Otherwise, the motion will be denied without prejudice.

Counsel should note that after the order is signed, the order will only become effective upon the filing of a proof of service of a signed copy of the order on Plaintiff. Counsel will remain the attorney of record until Counsel files with the Court proof of service of the signed order. Counsel will be ordered to serve a copy of the signed order (MC-053) on Plaintiff within three days.

DATED: February 27, 2023                                                   ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court