Judge: Joel L. Lofton, Case: 23AHCV02482, Date: 2024-05-01 Tentative Ruling

Case Number: 23AHCV02482    Hearing Date: May 1, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      May 1, 2024                                        TRIAL DATE: No date set.

CASE:                         DAVID KATO vs NEW REZ, LLC, et al.

CASE NO.:                 23AHCV02482

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:               CDLG, PC – Tony Cara and Fernando Leone

RESPONDING PARTY:      No response filed.

SERVICE:                              Filed March 26, 2024

RELIEF REQUESTED

            Tony Cara and Fernando Leone, on behalf of CDLG, PC, move to be relieved as counsel of record for Plaintiff David Kato.

BACKGROUND

            On October 26, 2023, Plaintiff David Kato filed a complaint against Defendants New Rez, LLC dba Shellpoint Mortgage Servicing, US Bank National Association, and Does 1-10, alleging (1) violation of Civil Code section 2923.5; (2) violation of Civil Code section 2924(a)(1); (3) violation of Civil Code section 2924.9; (4) Wrongful Foreclosure; (5) Unfair Business Practices, violation of Business and Professions Code section 17200, et seq.; and (6) Cancellation of Written Instruments, Civ. Code section 3412.

TENTATIVE RULING

            Counsel’s motion to be relieved as counsel is tentatively 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

            Counsel move to be relieved as counsel of record, stating “Attorney client relationship has been compromised and a withdrawal of representation is necessary under California Rules of Professional Conduct §§ 3-700(C)(d) and 3-700(C)(f).” (Decl. ¶ 2.) Rule 1.16(b)(4) provides that a lawyer may withdraw if “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively.” Counsel do not provide any other details as to what conduct gives rise to this request to be relieved as counsel. At hearing, Counsel is ordered to provide additional details, without violating attorney-client privilege, regarding what led to this motion.

            Counsel provide that the clients were served at the last known address which was confirmed by mail, return receipt requested.

CONCLUSION

            Counsel’s motion to be relieved as counsel is tentatively 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.