Judge: Joel L. Lofton, Case: 18GDCV00075, Date: 2023-03-29 Tentative Ruling
Case Number: 18GDCV00075 Hearing Date: March 29, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: March
29, 2023 TRIAL DATE: August 22, 2023
CASE: SHERMAN SHIU-FU
CHEN, in his capacity as TRUSTEE of the CHEN FAMILY TRUST DATED MARCH 28, 1990;
and SHERMAN SHIU-FU CHEN, in his capacity as Attorney In Fact for the LIU
FAMILY LIVING TRUST DATED NOVEMBER 20, 2008, v. EASTERN REAL ESTATE, LLC, a
California limited liability company; SD DESIGN CONSTRUCTION CORP., a
California corporation; and DOES 1-100.
CASE NO.: 18GDCV00075
MOTION
TO BE RELIEVED AS COUNSEL
MOVING PARTY: Jack Cheng, counsel for
Cross-Complainant and Cross-Defendant RMG Engineering Inc.
RESPONDING PARTY: No
response filed.
SERVICE: Filed February 28, 2023
RELIEF
REQUESTED
Jack Cheng of the Law Offices of Cheng & Associates moves to be
relieved as counsel for RMG Engineering Inc.
BACKGROUND
This case is brought by Sherman Shiu-Fu Chen
(“Plaintiff”), as Trustee of the Chen Family Trust Dated March 28, 1990 and
Attorney in fact for the Liu Family Living Trust Dated November 20, 2008.
Plaintiff alleges that Defendant Eastern Real Estate, LLC and SD Design
Construction Corp. negligently engaged in construction that negatively impacted
Plaintiff’s neighboring property. Plaintiff filed this complaint on November 1,
2018, alleging three causes of action for (1) negligence, (2) failure of
statute, and (3) injunctive relief.
TENTATIVE RULING
Cheng’s
motion to be relieved as counsel for RMG is granted.
The court
will delay the effective date of the order relieving counsel until (1) proof of
service of a copy of the signed order on the client and (2) proof that the
client has been properly served with notice of the next trial date have been
filed with the court. Cheng is ordered to submit a declaration or
affirmatively inform the court at the hearing that RMG understands that because
it is a corporation, it cannot proceed in pro per status.
LEGAL STANDARD
Code of Civil Procedure §284(1) allows for
a change or substitution of attorney “[u]pon the consent of both client and
attorney, filed with the clerk, or entered upon the minutes.” If both parties
do not consent to a substitution of attorney, Code of Civ. Proc. §284(2) allows
for a substitution “[u]pon the order of the court, upon the application of
either client or attorney, after notice from one to the other.” California
Rules of Court Rule 3.1362 sets forth procedures for relieving counsel without
the mutual consent of both parties.
Under California Rules of Court Rule
3.1362, an attorney seeking to withdraw by motion rather than by consent of the
client, as here, is required to make that motion using approved Judicial
Council forms. The motion also requires 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(2) is
brought instead of filing a consent under Code of Civil Procedure section
284(1).” (Cal. Rules of Ct., Rule 3.1362(c).)
Judicial Council form MC-052, the attorney’s declaration, requires that
the client be provided no less than five days’ notice before hearing on the
motion. A proposed order prepared on
form MC-053 must also be lodged with the court with the moving papers.
California
Rules of Court Rule 3.1362 subd. (d) also requires that the motion, notice of
motion, the declaration, and the proposed order must be served on the client
and all other parties who have appeared in the case. The notice served on the
client by mail must be accompanied by a declaration stating facts that show
that either the service address is current or “that [t]he 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 before the
filing of the motion to be relieved.”
(California Rules of Court Rule 3.1362 subd. (d)).
The Court of Appeals has recognized, “A
lawyer violates his or her ethical mandate by abandoning a client [citation], or by withdrawing at a critical
point and thereby prejudicing the client’s case. [Citation.]
We are, however, aware of no authority preventing an attorney from
withdrawing from a case when withdrawal can be accomplished without undue
prejudice to the client’s interests.” Ramirez v. Sturdevant (1994) 21 Cal.
App. 4th 904, 915.
DISCUSSION
Jack Cheng (“Cheng”) moves to be relieved as counsel for
Cross-Complainant and Cross-Defendant RMG Engineering Inc. (“RMG”). Cheng
provides that he is bringing this motion because RMG has breached the
attorney-client contract, and there are irreconcilable differences between him
and RMG. Cheng provides he served the client a copy of the moving papers by
mail at the client’s last known address, which was confirmed by telephone.
CONCLUSION
Cheng’s
motion to be relieved as counsel for RMG is granted.
The court
will delay the effective date of the order relieving counsel until (1) proof of
service of a copy of the signed order on the client and (2) proof that the
client has been properly served with notice of the next trial date have been
filed with the court. Cheng is ordered to submit a declaration or
affirmatively inform the court at the hearing that RMG understands that because
it is a corporation, it cannot proceed in pro per status.
Dated: March 29, 2023 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an email to the court
indicating their
intention to submit.
Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org