Judge Katherine Chilton, Case 18STLC09831 2023-03-20 Tentative Ruling

Judge: Katherine Chilton, Case: 18STLC09831, Date: 2023-03-20 Tentative Ruling

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Case Number: 18STLC09831 Hearing Date: March 20, 2023 Dept: 25

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Counsel Kurt Zimmerman

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel Kurt Zimmerman’s Motion to Be Relieved as Counsel as to Plaintiff/Cross-Defendant David Borkes is GRANTED, and the Order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on the client has been filed with the court.” (Ibid.)

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of March 14, 2023. [ ] Late [X] None

REPLY: None filed as of March 14, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On July 20, 2018, Plaintiffs Jerrod Washington (“Washington”) and David Borkes (“Borkes”), (collectively “Defendants”), filed an action against Nick J. Halekakis (“Halekakis” or “Defendant”) for bad faith retention of security deposit, breach of covenant of good faith and fair dealing, conversion, unfair business practices, and attorney fees, arising out of an alleged lease agreement between Plaintiffs and Defendant.

On August 22, 2019, pursuant to Plaintiffs’ request, the Court entered default against Defendant. (8-22-19 Request for Entry of Default.) On September 11, 2019, judgment was entered for Plaintiffs and against Defendant. (9-11-19 Judgment.)

On March 11, 2020, Defendant, in propria persona, filed a Motion to Set Aside/Vacate Default and Default Judgment. The Court granted Defendant’s Motion on August 12, 2020, and ordered him to file a proposed answer within ten (10) days of notice of the Order. (8-12-20 Minute Order.)

On August 24, 2020, Libby Wong was substituted in as Defendant’s attorney. (8-24-20 Minute Order.) On the same day, Defendant filed an Answer to the Complaint, as well as a Cross-Complaint for breach of contract against Cross-Defendants Washington and Borkes. Washington and Borkes each filed a separate Answer to the Cross-Complaint on October 20, 2020.

On February 2, 2021, the Court granted Counsel Libby Wong’s Motion to be Relieved as Counsel as to Defendant/Cross-Complainant Halekakis, filed on November 25, 2020. (2-2-21 Minute Order.)

On May 5, 2022, Counsel Kurt Zimmerman filed Motions to be Relieved as Counsel as to Plaintiff/Cross-Defendant Jerrod Washington and Plaintiff/Cross-Defendant David Borkes. The Court denied Counsel’s Motions due to deficiencies in the judicial council forms and service of the moving papers. (6-9-22 Minute Order.)

On February 17, 2023, Counsel Kurt Zimmerman (“Zimmerman”) filed the two (2) instant Motions to be Relieved as Counsel as to Plaintiff/Cross-Defendant Jerrod Washington (“Motion re: Washington”) and Plaintiff/Cross-Defendant David Borkes (“Motion re: Borkes”). On March 16, 2023, Zimmerman filed a corrected Form MC-053.

No opposition has been filed.

II. Legal Standard

Code of Civil Procedure § 284 states that “the attorney in an action…may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney…; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc. § 284; CRC 3.1362.) The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably. (See Mandell v. Superior (1977) 67 Cal.App.3d 1, 4; Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.)

In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court, Rule 3.1362. The motion must be made using mandatory forms:

1. Notice of Motion and Motion to be Relieved as Counsel directed to the client – (MC-051);

2. Declaration “stating in general terms and without compromising the confidentiality of the attorney-client relationship” the reasons that the motion was brought (MC-052);

3. Proposed Order (MC-053).

(Ibid.) The forms must be timely filed and served on all parties who have appeared in the case. (Ibid.) If these documents are served on the client by mail, there must be a declaration stating either that the address where client was served is “the current residence or business address of the client” or “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.” (Cal. Rules of Court, rule 3.1362(d)(1).)

III. Discussion

A. Motion re: Plaintiff/Cross-Defendant Jerrod Washington

On February 17, 2023, Counsel Kurt Zimmerman (“Zimmerman”) filed the instant Motion to be Relieved as Counsel as to Plaintiff/Cross-Defendant Jerrod Washington. Counsel properly filed a Notice of Motion and Motion (MC-051). Counsel also filed a Declaration in Support of the Motion (MC-052) stating the following:

The relationship of trust and confidence essential to the attorney-client relationship has ceased to exist. In addition, irreconcilable differences have risen between client and attorney making it unreasonably difficult to carry out the employment effectively. In addition, the undersigned counsel suffers from medical conditions making his continued involvement in the litigation impossible.

(MC-052 ¶ 7.) Furthermore, “[t]he client did not voluntarily consent to counsel’s reported requests to be relieved as counsel.” (MC-052 ¶ 2.)

Counsel has also filed a Proposed Order, Form MC-053.

All documents were served on Plaintiff/Cross-Defendant Washington via overnight delivery on February 17, 2023, at his last known address, which Counsel confirmed “by emailing client and receiving email confirmation of client’s current address from client” within the past 30 days. (3-10-23 Second Amended Proof of Service re: Washington; MC-052 ¶ 3.) Counsel has also served Plaintiff/Cross-Defendant Borkes and Defendant/Cross-Complainant Halekakis with the moving papers. (3-10-23 Second Amended Proof of Service re: Washington.)

Washington has not opposed the Motion and the Court finds that there is no showing that withdrawal would cause injustice or undue delay in the proceedings.

The Court finds that Counsel has satisfied all procedural requirements for the Motion. Accordingly, his Motion to be Relieved as Counsel as to Plaintiff/Cross-Defendant Jerrod Washington is GRANTED

B. Motion re: Plaintiff/Cross-Defendant David Borkes

On February 17, 2023, Counsel Kurt Zimmerman (“Zimmerman”) filed the instant Motion to be Relieved as Counsel as to Plaintiff/Cross-Defendant David Borkes. Counsel properly filed a Notice of Motion and Motion (MC-051). Counsel also filed a Declaration in Support of the Motion (MC-052) stating the following:

(MC-052 ¶ 7.) Furthermore, “[t]he client did not voluntarily consent to counsel’s reported requests to be relieved as counsel.” (MC-052 ¶ 2.) Counsel has also filed a Proposed Order, Form MC-053.

All documents were served on Plaintiff/Cross-Defendant Borkes via overnight delivery on February 17, 2023, at his last known address, which Counsel confirmed “by emailing client and receiving email confirmation of client’s current address from client” within the past 30 days. (3-10-23 Second Amended Proof of Service re: Borkes; MC-052 ¶ 3.) Counsel has also served Plaintiff/Cross-Defendant Washington and Defendant/Cross-Complainant Halekakis with the moving papers. (3-10-23 Second Amended Proof of Service re: Borkes.)

Plaintiff/Cross-Defendant Borkes has not opposed the Motion and the Court finds that there is no showing that withdrawal would cause injustice or undue delay in the proceedings.

The Court finds that Counsel has satisfied all procedural requirements for the Motion. Accordingly, his Motion to be Relieved as Counsel as to Plaintiff/Cross-Defendant David Borkes is GRANTED.

IV. Conclusion & Order

For the foregoing reasons,

Counsel Kurt Zimmerman’s Motion to Be Relieved as Counsel as to Plaintiff/Cross-Defendant Jerrod Washington is GRANTED. The Order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on the client has been filed with the court” and Counsel refiles a complete Form MC-053, Proposed Order. (Ibid.)

Moving party is ordered to give notice.