Judge James C. Chalfant, Case 22STCP03424 2023-02-16 Tentative Ruling

JP23 Hospitality Company, Inc. v. City of Long Beach et al., 22STCP03424

Tentative decision on motion to be relieved as counsel: granted

Jennifer Harris, Esq. (“Harris”) moves for an order relieving her as counsel for Petitioner JP23 Hospitality Company, Inc. (“JP23”).

The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

Petitioner JP23 commenced this proceeding on September 19, 2022, alleging two causes of action for traditional mandamus and one for administrative mandamus against Respondents City of Long Beach, Long Beach City Council (collectively, “City”), and the City’s Department of Financial Management (“Finance”). The Petition alleges in pertinent part as follows.

JP23 is a restaurant and lounge owned and operated by Jacob Poozhikala (“Poozhikala”). After years of operating in downtown Fullerton, Poozhikala had a chance to lease a space in the City. He signed a 25-year lease in September 2017 for $20,000 per month. After a series of 2018 predevelopment meetings, the City's Planning Department (“Planning”) approved a set of plans in September 2019. Buildout began soon after, but the COVID-19 pandemic stopped it and the government shut down the compromised J23. After the City returned to some version of normal, Planning approved a revised set of plans and J23 resumed buildout in early 2021.

On September 16, 2021, JP23 submitted and completed its application for a business license and an entertainment permit to Finance. He also requested a temporary entertainment permit.

Finance put a hold on processing the business application. JP23 believes this is because of pressure that started on August 2, 2021 when the City began to hear false rumors regarding JP23’s Fullerton location. From September 3 to September 10, 2021, the Democratic Socialists of America (“DSA”) led a campaign whose purpose was to flood Councilwoman Cindy Allen's office with letters that the City should not approve JP23’s application. This movement included in-person campaigns, flyers, and Twitter messages. By the time JP23 submitted and completed its application to Finance for a business license, public opinion had deprived it of a fair and unbiased review of its application.

The City decided to form a task force to observe and document any alleged Code violations in order to deny JP23 a license. Because JP23 had already gotten all the necessary approvals from every other department, Finance had to stop the application from the normal workflow to prevent issuance of a license.

Throughout October 2021, Poozhikala attempted to get updates on both applications every day. On October 22, he retained legal counsel to compel the City to respond.

On October 27, 2021, Finance issued a temporary conditional business license, which the Long Beach Municipal Code (“LBMC”) does not allow under these circumstances. When the City issued the temporary license to Poozhikala on November 3, 2021, he was informed that he was ineligible for a temporary entertainment permit because no business had held an entertainment permit at the premises in the prior 12 months. The LBMC does not have such a requirement and JP23 meets the four conditions is does have.

On March 14, 2022, Finance denied JB23’s application for a business license. JP23 served a timely notice of appeal and the hearing occurred throughout May and June 2022. On July 15, 2022, the hearing officer found that Finance’s duty to approve the application was ministerial, not regulatory. It also must consider only whether JP23 will commit code violations in the future, not if it has done so in the past. The hearing officer recommended that the denial of JP23’s business license application be reversed.

The City Council waited a month to put the item on its agenda so it could retain legal counsel to draft an opinion that supported Finance’s recommendation to reject the hearing officer's decision. Finance did hire a law firm which wrote a one-sided written legal report interpreting the LBMC in a manner favorable to Finance’s interpretation. The City Council then placed the matter on its regular session agenda.

On August 23, 2022, the City Council considered the attorney’s report. JP23 submitted written objections to the report. The City Council voted unanimously to adopt Finance’s recommendation and reject that of the hearing officer. On August 26, 2022, it issued a written decision denying the business license appeal. Once it was served, the temporary conditional business license pending the appeal process expired.

JP23 seeks a writ of administrative mandate ordering the City to rescind its denial of JP23's business license application, issue the business license retroactive to October 19, 2021, follow the requirements set forth in the City’s laws and regulations for business license applications, follow the City’s own rules as to temporary entertainment permits, and issue a temporary entertainment permit to JP23.

On September 20, 2022, JP23 personally served the City and Finance with the Petition. No proof of service for the Summons is on file.

On September 22, 2022, the court denied JP23’s ex parte application for a stay and for a peremptory writ, but granted an application for alternative writ to compel the City to either grant the relief requested or to show cause for why it should not at the hearing on this Petition.

The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination upon the order of the court, upon the application of either client or attorney, after notice from one to the other. CCP §284(2). The court’s power to permit withdrawal of an attorney rests within its sound discretion. Jones v. Green, (1946) 74 Cal.App.2d 223.

A notice of motion and motion to be relieved as counsel under CCP §284(2) shall be directed to the client and shall be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil form (MC-051). CRC 3.1362(a). No memorandum is required for the motion. CRC 3.1362(b). The motion shall be accompanied by a declaration stating in general terms, without compromising the confidentiality of the attorney-client relationship, why a motion under CCP section 284(2) is brought instead of filing a consent under CCP §284(1). CRC 3.1362(c). If the motion is served by mail, it shall be accompanied by a declaration stating facts showing either (1) the service address is the current residence of business address of the client or (2) the 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 prior to filing the motion. CRC 3.1362(d).

The motion may be brought on various grounds, some of which include the failure of the client to pay attorney fees (People v. Prince, (1968) 268 Cal.App.2d 398, 406), the client insisting on an action that is not justified under existing law or by good faith argument (Estate of Falco v. Decker, (1987) 188 Cal.App.3d 1004, 1015), and a conflict of interest (Aceves v. Superior Court, (1996) 51 Cal.App.4th 584, 592). Where an attorney’s withdrawal can be accomplished without undue prejudice to his or her client’s interests, no showing of “good cause” for the withdrawal is necessary. Ramirez v. Sturdevant, (1994) 21 Cal.App.4th 904, 915.

Counsel must also prepare a proposed order relieving counsel on the Order Granting Attorney's Motion to Be Relieved as Counsel-Civil (MC-053). CRC 3.1362(e). The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. CRC 3.1362(e). If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. CRC 3.1362(e). The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. CRC 3.1362(e).

Harris filed the motion to be relieved as counsel and supporting declaration on the appropriate Judicial Council forms. Harris moves to withdraw based on a general breakdown of the attorney-client relationship. Harris Decl., ¶2. She cannot provide the specific details to preserve the attorney-client privilege. Harris Decl., ¶2. In general, the attorney-client relationship has broken down to the point that she cannot adequately manage and control this action. Harris Decl., ¶2.

Trial is set for March 16, 2023. Harris Decl., ¶6. JP23’s opening brief was served on Respondents on December 28, 2022. Harris Decl., ¶7. Respondents’ opposing brief was filed on February 7, 2023. Harris Decl., ¶5. Although a reply brief is due on March 1, 2023, JP23 has other counsel in this case. Harris Decl., ¶¶ 5, 7.

Harris’s reasons for withdrawing are irrelevant in the absence of undue prejudice. A trial date is set for March 16, 2023, and a reply brief is due on March 1, 2023. Harris Decl., ¶¶ 5-6. The loss of counsel with only three weeks before the reply is due and this close to the trial normally could be prejudicial to the client.

However, Harris alleges that JP23 has other counsel in this case. Harris Decl., ¶7. The papers show that this is true. The Petition lists Ethan Reimers, Esq. (“Reimers”) of Messner Reeves LLP as co-counsel. On December 27, 2022, the parties entered a stipulation to modify the briefing schedule that again identified Harris and Reimers as co-counsel for JP23. There is no evidence to suggest that Reimers cannot handle the reply and trial on his own. There is no prejudice to JP23 from Harris’s withdrawal.

The court notes that Harris has not fulfilled her duties because while there is proof of electronic service of the opening brief on December 28, 2022 and Respondents have filed the opposition brief, Harris never filed the opening brief. The motion will be granted on condition that Harris file the opening brief and notify Reimers of his remaining duties.

The motion to withdraw is granted contingent on Harris filing the opening brief in support of the Petition and informing Reimers of his remaining duties. The withdrawal will be effective upon Harris filing a proposed order on form MC-053, the court’s execution of it, and service on both Reimers and JP23.