Department 30, Spring Street Courthouse

December 28, 2022

19STCV41785

Motion to Be Relieved as Counsel filed by Richard D. Carroll and Tobin J. Trobough, Counsel for Defendant Well Being Q Acupuncturist.

The motion is granted.

Counsel is ordered to serve the signed MC-053 today and to file proof of service of such notice within five court days after the date of this order.

This is an action for professional negligence and loss of consortium arising from a medical procedure performed by Defendant Park in November 2018. Plaintiffs Hae Hyun Park and Danny Yoonshik Park filed their Complaint on November 20, 2019. 

On October 13, 2022, Richard D. Carroll and Tobin J. Trobough filed the instant motion to be relieved as counsel. 

On November 8, 2022, the Court continued the hearing on this matter to allow Counsel to file correct forms.

Counsel Richard D. Carroll and Tobin J. Trobough seek to be relieved as counsel for Defendant Well Being Q Acupuncturist. Counsel states that a conflict of interest arose between their office and Well Being Q Acupuncturist. Defendant Han has already signed a substitution of attorney. However, the substitution would not apply to Well Being Q Acupuncturist. 

None.

“The question of granting or denying an application of an attorney to withdraw as counsel (Code Civ. Proc., § 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.’  [Citation.]”  (People v. Prince (1968) 268 Cal.App.2d 398, 406 [internal quotations omitted].)  The court should also consider whether the attorney’s “withdrawal can be accomplished without undue prejudice to the client’s interests.”  (Ramirez v. Sturdivant (1994) 21 Cal.App.4th 904, 915.)

 

California Rules of Court, rule 3.1362 requires that the following be submitted in support of an attorney’s Motion to Be Relieved as Counsel pursuant Code of Civil Procedure section 284, subdivision (2): (1) a notice of motion and motion directed to the client (made on Notice of Motion and Motion to Be Relieved as Counsel—Civil (Judicial Council Form, MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284, subdivision (2) is brought instead of filing a consent under Code of Civil Procedure section 284, subdivision (1) (made on Declaration in Support of Attorney’s Motion to Be Relieved as Counsel—Civil (Judicial Council Form, MC-052)); (3) a proof of service evidencing service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on Order Granting Attorney’s Motion to Be Relieved as Counsel—Civil (Judicial Council Form, MC-053)).  (Cal. Rules of Court, rule 3.1362, subd. (a), (c), (d), (e).)

Counsel seeks to be relieved as counsel for Defendant Well Being Q Acupuncturist. Counsel are the counsel of record for both Well Being Q and Cheong Soo Han. (Tobin Decl., ¶1.) Counsel were originally retained by Han’s professional liability insurance carrier to represent him only, but agreed to represent Han’s business as a courtesy. (Id.) In 2021, Han lost his professional liability insurance and Counsel agreed to continue representing him and his business for the sole purpose of settling the case. (Id., ¶3.) Han signed a substitution of attorney on August 30, 2022, but the substitution would not apply to Well Being Q Acupuncturist. (Id.) Counsel’s office cannot continue representing Well Being Q Acupuncturist because a conflict arose between Counsel’s office and Well Being Q Acupuncturist.  

Counsel filed a Notice of Motion and Motion to Be Relieved as Counsel (MC-051), an Order Granting Attorney’s Motion to Be Relieved as Counsel (MC-053), and a Declaration in Support of Attorney’s Motion to Be Relieved as Counsel (MC-052) on the appropriate forms, as outlined within California Rules of Court, rule 3.1362, subdivisions (a), (c), and (e). (Cal. Rules of Court, rule 3.1362, subd. (a), (c), (e).) 

Counsel served Well Being Q at its last known address which he confirmed via telephone and conversation within 30 days prior to filing this motion. (MC-052 Item #3.) Counsel filled in MC-052 Item #3(b) by mistake. Since Counsel confirmed Well Being Q’s address, Item #3(b) should not have been checked.

Well Being Q Acupuncturist will not be prejudiced if Counsels’ motion is granted. The next hearing in this matter is a motion to strike set for January 13, 2023, and trial is set for April 19, 2023. There is sufficient time for Well Being Q Acupuncturist to retain new counsel and/or request a continuance.. Counsel properly noted the remaining hearings in this action on his forms. The Court is satisfied that Counsel has a compelling reason to withdraw.