Judge: Katherine Chilton, Case: 20STLC02711, Date: 2022-12-28 Tentative Ruling

Case Number: 20STLC02711     Hearing Date: December 28, 2022    Dept: 25

PROCEEDINGS:      MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:   Counsel James S. Sifers/Madison Law, APC, for Defendant Planet Cars, Inc.

RESP. PARTY:         None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel James S. Sifers’s Motion to Be Relieved as Counsel as to Defendant Planet Cars, Inc. is CONTINUED to February15, 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:[1]

[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 December 21, 2022.                     [   ] Late                      [X] None

REPLY:                     None filed as of December 21, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 23, 2020, Plaintiffs Robert Herod (“Robert”) and Rochelle L. Herod (“Rochelle”) filed an action against Planet Cars, Inc. d/b/a Cash or Finance Auto (“Planet Cars”), M&N Financing Corporation (M&N), and International Fidelity Insurance Company (“International Fidelity”) for (1) violation of Consumers Legal Remedies Act, Civil Code § 1750 et seq., (2) violation of California Business and Professions Code § 17200, et seq., Unlawful Acts or Practices, (3) Negligent Misrepresentation, (4) Claim Against Surety, and (5) Violation of Code of Civil Procedure § 1281.97 & 1281.99.

On June 1, 2020, Defendant Planet Cars filed an Answer to the Complaint.

On August 7, 2020, Defendant International Fidelity filed an Answer to the Complaint.

On October 22, 2020, the Court placed Plaintiffs’ Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, Request for Sanctions, and Request for Costs, filed on April 2, 2020, off calendar, for Plaintiffs’ failure to file a corrected proof of service.  (10-22-20 Minute Order.)

On November 20, 2020, Plaintiffs filed another Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, Request for Sanctions, and Request for Costs.  On June 21, 2021, the Court granted Plaintiffs’ Motion to Compel Arbitration and stayed the proceedings pending arbitration in front of the AAA.  (6-21-21 Minute Order.)  The Court denied costs and sanctions.  (Ibid.)

On August 18, 2022, James S. Sifers/Madison Law, APC, (“Sifers”) counsel for Defendant Planet Cars, filed the instant Motion to be Relieved as Counsel (“Motion”).  No opposition has been filed.  The Court notes that Counsel Sifers/Madison Law, APC, also represents Defendant International Fidelity in the instant action.  (See 8-7-20 Answer.)

On November 17, 2022, Counsel Sifers/Madison Law, APC, filed a Notice of Non-Opposition to the Motion.

On November 28, 2022, the Court continued the hearing on the Motion to be Relieved as Counsel to allow Counsel additional time to serve Defendants International Fidelity and M&N.     (11-28-22 Minute Order.)

On the same day, Counsel Sifers served a Notice of Continued Hearing on Plaintiffs and Defendant Planet Cards.  (11-28-22 Notice of Continuance.)

On November 29, 2022, Plaintiffs filed a Petition to Confirm Arbitration Award.

On December 7, 2022, Counsel for Plaintiffs, Nima Heydari filed a Declaration Relating to Arbitration Status Conference and indicated that the Arbitrator had granted Counsel Sifers’s Motion to be Relieved as Counsel as to Defendant Planet Cars in the context of arbitration.  (12-7-22 Heydari Decl.)

On December 14, 2022, Counsel Sifers filed Proof of Service indicating that the Notice of Continued Hearing had been served on the Plaintiffs and all Defendants.  (12-14-22 Notice of Continuance.)

On the same day, Counsel submitted the Declaration of Alexis A. Jugan Regarding Hearing on Motion to be Relieved as Counsel.

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 August 18, 2022, Counsel James S. Sifers/Madison Law, APC (“Sifers”) moved the Court to relieve him as attorney of record for Defendant Planet Cars.  (Mot. – MC-051.)  The Court notes that Counsel Sifers/Madison Law, APC, also represents Defendant International Fidelity in the instant action; however, the instant motion is regarding his representation of Defendant Planet Cars.  (Ibid.; See 8-7-20 Answer.)

Counsel properly filed a Notice of Motion and Motion (MC-051).  Counsel also filed a Declaration in Support of the Motion (MC-052) stating that:

A conflict has arisen between attorney, James S. Sifers and Madison Law, APC ("Attorney"), and client, Defendant Planet Cars, Inc. dba Cash or Finance Auto ("Client"), that has resulted in the breakdown of the attorney-client relationship, and such that Attorney does not believe that it can continue to represent Client in this matter. There exists a breakdown in communication between Attorney and Client such that Attorney does not believe it can adequately represent Client in this matter such that Client would be prejudiced should he be forced to litigate with current Attorney. Attorney believes that it is in Client's best interest to obtain alternative counsel so as to avoid this conflict and the resulting prejudice. Due to constraints of the attorney-client privilege, Attorney is unable to disclose any further details about the conflict and the need to withdraw.

(MC-052, ¶ 2.)  Counsel has also filed a Proposed Order, Form MC-053.

All documents were served on Defendant Planet Cars on August 18, 2022, at its last known address, which Counsel confirmed by conversation within the past 30 days.  (MC-052 ¶ 3.)  Counsel has also served the documents on the Plaintiffs.

On November 28, 2022, the Court found that there is no showing that withdrawal would cause injustice or undue delay in the proceedings.  (11-28-22 Minute Order.)  The Court also found that Counsel satisfied most of the procedural requirements for filing the Motion.  (11-28-22 Minute Order.)  However, given that Counsel has not served all Defendants, the Court continued the hearing to allow Counsel Sifers to serve the moving papers on all Defendants.  (Ibid.)

On December 14, 2022, Counsel Sifers filed Proof of Service indicating that the Notice of Continued Hearing had been served on the Plaintiffs and all Defendants.  (12-14-22 Notice of Continuance.)

On the same day, Counsel submitted the Declaration of Alexis A. Jugan Regarding Hearing on Motion to be Relieved as Counsel.  Counsel Jugan, who is also an attorney at Madison Law, APC, states that upon reviewing the Court’s tentative ruling on November 28, 2022, he instructed the office staff to promptly serve all Defendants with the instant Motion.  (Jugan Decl. ¶ 6.)  While preparing for a Post-Arbitration Status Conference hearing for December 15, 2022, he became aware that the deadline to serve Defendants had not been properly calendared and all Defendants had not been served.  (Ibid.)  Counsel Jugan accepts responsibility for the error and requests that the Court continue the hearing to allow additional time to serve all Defendants with the instant Motion.  (Ibid. at ¶ 7.)

To date, the Court has not received proof that all Defendants in the case have been served with the Motion.  For this reason, the Court continues the hearing on the Motion to allow Counsel Sifers an opportunity to serve all Defendants and file proof of service with the Court.

IV.           Conclusion & Order

For the foregoing reasons,

Counsel James S. Sifers’s Motion to Be Relieved as Counsel as to Defendant Planet Cars, Inc. is CONTINUED to February 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.

Moving party is ordered to give notice.