Judge: Joel L. Lofton, Case: 22ACV00356, Date: 2024-03-12 Tentative Ruling

Case Number: 22ACV00356    Hearing Date: March 12, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      March 12, 2024                                               TRIAL DATE: June 4, 2024

CASE:                         IKRUSHER, INC. a California corporation, v. MILE HIGH CURE CORP., a California corporation dba MHC Vape Warehouse; JEREMY CALDWELL, an individual; and DOES 1 through 10, inclusive. 

CASE NO.:                 22AHCV00356

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:               Thomas Francis McNamara, counsel for Defendants Jeremy Caldwell and Mile High Cure Corp.

RESPONDING PARTY:      No response filed.

SERVICE:                              Filed February 13, 2024

RELIEF REQUESTED

            McNamara moves to be relieved as counsel of record for Defendants Jeremy Caldwell and Mile High Cure Corp.

BACKGROUND

             This case arises out of Plaintiff iKrusher, Inc. (“Plaintiff”) claim that Defendants Mile High Cure Corp., dba MHC Vape Warehouse (“MHC”) and Jeremy Caldwell (“Caldwell”) (collectively “Defendants”) breached an agreement for the sale of 150,000 units of Xenbar-V10-OEM for $510,000. Plaintiff alleges that Defendants have paid $279,275 under the agreement. Plaintiff also alleges that Defendant purportedly returned $36,960 worth of products. However, Plaintiff alleges that the returned products were counterfeit reproductions of Plaintiff’s products. Plaintiff alleges Defendants owe an outstanding sum of $319,275.

            Plaintiff filed a second amended complaint on March 15, 2023, alleging nine causes of action for (1) breach of contract, (2) common count: goods and services rendered, (3) common count: open book account, (4) conversion, (5) fraud, (6) federal trademark infringement and counterfeiting, (7) false designation of origin, (8) trademark infringement, and (9) unfair competition.

TENTATIVE RULING

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 clients and (2) proof that the clients have been properly served with notice of the next trial date have been filed with the court.

            Subject to service of the proofs of service and counsel’s statements at hearing, McNamara’s motion to be relieved as counsel is GRANTED.

            Counsel is  ordered to submit a declaration or affirmatively inform the court at the hearing that Mile High Cure Corp. understands that as corporations 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

            Thomas F. McNamara (“McNamara”) moves to be relieved as counsel of record for Defendants Jeremy Caldwell and Mile High Cure Corp. In support of this motion, McNamara merely contends that this motion is necessary because the clients have not given consent. McNamara provides no other reason for the basis of the present motion. At hearing, McNamara is ordered to provide, in general terms and without compromising the confidentiality of the attorney-client relationship, information regarding the basis of this motion.

            Counsel provides that the clients were served at the last known address which was confirmed by telephone.

CONCLUSION

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 clients and (2) proof that the clients have been properly served with notice of the next trial date have been filed with the court.

            Subject to service of the proofs of service and counsel’s statements at hearing, McNamara’s motion to be relieved as counsel is GRANTED.

            Counsel is  ordered to submit a declaration or affirmatively inform the court at the hearing that Mile High Cure Corp. understands that as corporations it cannot proceed in pro per status.

Dated:   March 12, 2024                                             ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court