Judge James C. Chalfant, Case Number: 22STCP03914, Date: 2023-08-10 Tentative Ruling

M & A Gabaee v. City of Hawthorne, et al., 22STCP03914

Tentative decision on motion to be relieved as counsel: granted

W. Allan Edmiston, Esq. (“Edmiston”) of the law firm Loeb and Loeb LLP (“L&L”) moves for an order relieving him as counsel for Petitioner M & A Gabaee (“Gabaee”).

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

Petitioner Gabaee commenced this proceeding against Respondents City of Hawthorne (“City”) and the City Council on October 31, 2022, alleging claims for (1) mandamus and (2) violation of due process. The Petition alleges in pertinent part as follows.

Gabaee is the owner of the site of the former Hawthorne Mall (“Mall”) and its adjacent multi-level parking structure (collectively, “Property”). The previous owners closed the Property in 1999. When Gabaee bought the Mall in 2000, looters had stolen almost all the fixtures. Gabaee sought to reposition the Mall for redevelopment into a more viable use. The condition of the Mall has not materially changed since.

Gabaee holds a Commercial Rental License and a Commercial Rental for Filming License for the Mall (collectively, “Mall Licenses”). Gabaee now leases part of the Mall to the County of Los Angeles Department of Public Social Services, Crystal Stairs, Inc., and a live scan and notary services business of Harold Utomakili. Gabaee also leases part of the parking structure to Tesla and licenses portions of the Mall for filming.

Two of Gaabaee’s tenants have rented space since 2002 and have not complained about safety concerns. The only known incident involves a trespasser who fell and injured his leg about ten years ago. Recent changes have made the Property safer, as only one gate is open and only the tenants and invitees can access the Property per their lease agreements. Although the City falsely claims that homeless persons encamp on the Property, none of the tenants have alleged as much.

In 2018, the City and Gabaee disputed whether a portion of the Property should be used for a residential development or big box retail. The City blamed Gabaee for the failure to reach a plan for redevelopment. Former City Manager Arnie Shadbehr wanted to end Tesla’s use of the Property and urged City enforcement officers to increase the number of citations issued to Gabaee, who complied. By 2020, the citations had accrued $2,000 in fines per day, a total of over $1,000,000. Gabaee has challenged these fines in three administrative proceedings which upheld some citations and rejected others. De novo review of the two 2020 administrative rulings is pending in Department 62 (Hon. Michael Stern), and Gabaee has also filed appeal of the third ruling.

In March 2021, the City and Gabaee entered into an Interim Agreement. Under its terms, the City would have full access to the Property and would send Gabaee “correction notices” with an opportunity to resolve the issues therein. The City failed to do so by the time the Interim Agreement expired on June 1, 2021.

On November 24, 2021, the City filed a nuisance complaint, LASC No. 21TRCV00869 (“Nuisance Action”). The Nuisance Action alleges that Gabaree committed unlawful business practices, nuisance per se, public nuisance, and violations of the Hawthorne Municipal Code (“HMC”). Many of the conditions cited in the complaint have existed since 1999, but this was the first time the City said they constituted a nuisance.

On March 7, 2022, the City e-mailed Gabaee a letter dated February 24, 2022. The letter informed Gabaee that the City would not renew the Mall Licenses. The City asserted that Gabaee failed to comply with unspecified statutes and ordinances, did not operate in an orderly and businesslike manner, and conducted business in a manner which endangers the public welfare. The City set a hearing for the Mall Licenses revocation for March 29, 2022.

On March 23, 2022, Gabaee applied ex parte in the Nuisance Action for a TRO enjoining the City from revoking the Mall Licenses. When the City asserted that the two proceedings were unrelated, the court denied the ex parte application.

On March 30, 2022, the hearing officer in the Mall Licenses revocation issued a decision with a one-paragraph “Findings and Order” that found the revocation justified. The decision did not discuss or quote the provisions of the HMC that Gabaee had violated, explain how Gabaee violated those provisions, specify what evidence supported the decision, explain how any of the Property’s conditions constitute a danger, or address any of Gabaee’s contentions.

On April 11, 2022, Gabaee appealed the hearing officer’s decision to the City Council. The HMC provides that the City Council itself must hear an appeal within 15 days. After Gabaee’s counsel said that any biased City Council member should recuse himself, the City Council referred the appeal to JAMS. Gabaee agreed under a reservation of rights.

In a supplemental brief for JAMS, Gabaee argued that suspension of a business based on a curable nuisance is a violation of due process. All the HMC provisions that Gabaee supposedly violated have express notice, cure, and appeal provisions that the City ignored. Gabaee also reiterated that the basis for revocation was the same as the Nuisance Action.

At the hearing on May 31, 2022, the parties agreed that the standard was de novo independent review. The judge granted the City permission to submit additional evidence and it did so on June 7, 2022. This evidence cited conditions that had existed at the Property for over 20 years, alleged non-specific violations of the HMC, and claimed that the Property was dangerous without explaining how.

On September 15, 2022, JAMS affirmed the hearing officer. Despite the parties’ agreement that the proper standard of review was de novo, the judge applied the substantial evidence standard. The judge also determined that she lacked jurisdiction to consider Gabaee’s due process or other legal arguments.

The City has revoked longstanding Mall Licenses without live testimony, with two of the declarants identified as “X” and “Z,” and before any findings on the Nuisance Action. Gabaee seeks a stay on the revocation pending a final judgment in this action, which in turn should be stayed pending judgment in the Nuisance Action. Gabaee requests a peremptory writ of mandamus directing the City Council to vacate the revocation of the Mall Licenses and to renew them after receipt of the appropriate fee. Gabaee also seeks attorney’s fees and costs.

On October 31, 2022, Gabaee filed a notice of related cases for (a) Gabaee v. City, (“Gabaee I”) (2020), Case No. 20STCP02652; (b) Gabaee v. City, (“Gabaee II”) (2020), Case No. 20STLC09160; and the Nuisance Action.

On November 1, 2022, Gabaee served the City and City Council with the Petition and Summons.

On December 16, 2022, Department 62 (Hon. Michael Stern) declined to relate this case to Gabaee I, Gabaee II, and the Nuisance Action.

On February 16, 2023, this court denied Gabaee’s ex parte application for a stay of the Mall Licenses revocation decision for lack of an emergency. The court noted that Gabaee could make a noticed motion for a preliminary injunction to that effect.

On March 28, 2023, the City and City Council filed notice of substitution of counsel from the firm Silver and Wright LLP to Matthew R. Silver, Esq.

On March 28, 2023, pursuant to a stipulation, Gabaee withdrew without prejudice a noticed motion for stay of the administrative decision under review. On April 3, 2023, pursuant to the same stipulation, the court continued the next trial setting conference to June 13, 2023, which Gabaee agreed to reserve for a renewed motion to stay the administrative decision.

On July 17, 2023, pursuant to a stipulation, the court continued the hearing date for the motion for a stay of the administrative decision under review to September 28, 2023.

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).

Edmiston asserts that there has been an irreconcilable breakdown in the attorney-client relationship. Edmonton Decl., ¶2. Under one of more of the factors in California Rule of Professional Conduct 1.16(b), L&L has grounds to withdraw as counsel. Edmonton Decl., ¶2. Although Edmonton does not disclose more details through declaration, he will explain either in camera or without revealing client confidences if the court so orders. Edmonton Decl., ¶2.

Trial on the merits is not yet set. Edmonton Decl., ¶6. As of July 7, 2023, the next hearing date is a trial setting conference for August 3, 2023. Edmonton Decl., ¶4. This was also the date reserved for a hearing on a motion from Gabaee to stay enforcement of an administrative order. Edmonton Decl., ¶5. Based on this date, the deadline to file an opening brief was July 12, 2023. Edmonton Decl., ¶5. The deadline to file a reply brief was July 27, 2023. Edmonton Decl., ¶5.

Edmonton filed his motion to be relieved as counsel and his supporting declaration on the appropriate Judicial Council forms. Edmonton moves to withdraw based on a general breakdown of the attorney-client relationship. Edmonton Decl., ¶2. He is willing to disclose further details at the hearing, but the court need not assess the validity of his claim.

Edmonton’s reasons for withdrawing are irrelevant in the absence of undue prejudice. The only hearing date is a motion to stay enforcement of an administrative order. This date was August 3, 2023 when Edmonton filed this motion. Edmonton Decl., ¶4. However, pursuant to a stipulation between the parties, the hearing date has been continued to September 28, 2023. Based on this hearing date, the deadlines for the opening and reply brief are September 6 and 21, 2023, respectively. See CCP §1005.

This is sufficient time for new counsel to evaluate the need for such a motion, prepare the briefs, or seek to continue the hearing. There is no prejudice to Gabaee from Edmonton’s withdrawal.