Judge Katherine Chilton, Case 19STLC02439 2023-04-10 Tentative Ruling

Judge: Katherine Chilton, Case: 19STLC02439, Date: 2023-04-10 Tentative Ruling

Case Number: 19STLC02439 Hearing Date: April 10, 2023 Dept: 25

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Counsel Charles J. Brash, for Defendant Lorraine Irwin

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel Charles J. Brash’s Motion to Be Relieved as Counsel as to Defendant Lorraine Irwin is CONTINUED to MAY 15, 2023 at 10:00 A.M. in Department 25 at Spring Street Courthouse. Counsel is ordered to file supplemental papers as discussed herein at least 16 court days before the scheduled hearing. Failure to do so may result in the hearing being placed off calendar or denied.

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 April 5, 2023. [ ] Late [X] None

REPLY: None filed as of April 5, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On March 8, 2019, Plaintiff Western Pacific Roofing Corp. (“Western Pacific” or “Plaintiff”) filed an action against Defendants James Irwin (“James”) and Lorraine Irwin (“Lorraine”) (collectively “Defendants’) for breach of contract, foreclosure of mechanic’s lien, foreclosure on mechanic’s lien release bond, and quantum meruit.

On August 26, 2019, Defendant James filed an Answer to the Complaint. Defendant James also filed a Cross-Complaint against Western Pacific and Lorraine Irwin for negligence, breach of contract, implied indemnity, comparative indemnity, declaratory relief, equitable indemnity, contribution, and breach of fiduciary duty.

Western Pacific filed an Answer to the Cross-Complaint on September 27, 2019.

On November 12, 2019, Defendant/Cross-Defendant Lorraine filed a Notice of Related Case.

On August 17, 2020, the Court overruled Defendant/Cross-Defendant Lorraine’s Demurrer and stayed the proceedings pending adjudication of a family law matter in Department 7. (8-17-20 Minute Order.)

On January 3, 2023, Counsel Charles J. Brash (“Brash”) filed the instant Motion to be Relieved as Counsel (“Motion”) as to Defendant Lorraine Irwin.

No opposition has been filed.

On March 30, 2023, Plaintiff filed a Notice of Settlement.

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

On January 3, 2023, Counsel Charles J. Brash (“Brash”) filed the instant Motion to be Relieved as Counsel as to Defendant Lorraine Irwin. Counsel filed a Notice of Motion and Motion (MC-051). The Court notes that Counsel has filed a defective Notice that contains the Stanley Mosk Courthouse address instead of the Spring Street Courthouse address.

Counsel also filed a Declaration in Support of the Motion (MC-052) stating:

THE CLIENT BY OTHER CONDUCT RENDERS IT UNREASONABLY DIFFICULT FOR THE MEMBERS TO CARRY OUT THE EMPLOYMENT EFFECTIVELY; THE CLIENT BREACHED AN AGREEMENT OR OBLIGATION TO THE MEMBER AS TO EXPENSES AND FEES. STATE BAR OF CALIFORNIA RULE 3-700(c)(l)(d)(f)[.]

(MC-052 ¶ 2.) The Court notes that Form MC-052 also contains the wrong courthouse address.

Counsel has not filed a Proposed Order, Form MC-053.

Forms MC-051 and MC-052 were served on Defendant Lorraine by mail on January 3, 2023, at her last known address, which Counsel confirmed within the past 30 days, as “[t]he last known address of the client is the subject of the litigation and as of December 10, 2022 client was residing at this address.” (MC-052 ¶ 3b(1)(d); MC-051 pp. 3-4; MC-052 pp. 3-4.) Counsel has also served Plaintiff and Defendant James Irwin’s counsel by mail. (MC-051 pp. 3-4; MC-052 pp. 3-4.)

The Court finds that Counsel has satisfied most of the procedural requirements for the Motion and there is no showing that withdrawal would cause injustice or undue delay in the proceedings.

However, Counsel has filed a Notice, Form-MC-051, and Declaration, Form MC-052, containing the wrong address for the Spring Street Courthouse. Furthermore, Counsel has not filed a Proposed Order, Form MC-053.

Accordingly, the hearing on the Motion is CONTINUED and Counsel is ordered to correct these deficiencies.

IV. Conclusion & Order

For the foregoing reasons,

Moving party is ordered to give notice.