Judge: Joel L. Lofton, Case: 21GDCV01161, Date: 2023-01-26 Tentative Ruling

Case Number: 21GDCV01161    Hearing Date: January 26, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     January 26, 2023                                 TRIAL DATE: No date set.

CASE:                         MAN CHING KWAN, an individual; RAYMOND MAN FU KWAN, as trustee of the Revocable Living Trust of Raymond Man Fu Kwan, v. ESTATE OF MICHAEL KWAN, and DOES 1-10.

CASE NO.:                 21GDCV01161

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:               James D. Hornbuckle, counsel for Defendant The Estate of Michael Kwan

RESPONDING PARTY:      No response filed.

SERVICE:                              Filed December 28, 2022

RELIEF REQUESTED

            James D. Hornbuckle, counsel for Defendant the Estate of Michael Kwan, moves to be relieved as counsel.

BACKGROUND

             This case arises out of an attempt to invoke the right to partition a property. Plaintiffs Man Ching Kwan and Raymond Man Fu Kwan, as trustees of the revocable living trust of Raymond Man Fu Kwan, (“Plaintiffs”) each own an undivided 33.33% interest in the real property located at 9031 Ralph Street, Rosemead, Los Angeles, 91770 (“Subject Property”). Plaintiffs allege that Michael Kwan (“Decedent”) died on or about November 11, 2020. Plaintiffs allege that prior to his death, Decedent also owned an undivided 33.33% interest in the Subject Property.

            Plaintiffs filed this complaint on September 10, 2021, alleging three causes of action for (1) partition by sale, (2) unjust enrichment, and  (3) ouster/ejectment.

TENTATIVE RULING

James D. Hornbuckle’s motion to be relieved as counsel is granted.

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

            James D. Hornbuckle provides that an irreparable breakdown of the attorney-client relationship has occurred that makes it impossible for him to continue his representation. He provides that he served this motion by mail at the client’s last known address, which was confirmed by mail with a return receipt requested.

CONCLUSION

James D. Hornbuckle’s motion to be relieved as counsel 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.

Dated:   January 26, 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