Judge Katherine Chilton, Case 20STLC03019 2022-08-09 Tentative Ruling

Judge: Katherine Chilton, Case: 20STLC03019, Date: 2022-08-09 Tentative Ruling

Case Number: 20STLC03019 Hearing Date: August 9, 2022 Dept: 25

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Defendant/Cross-Complainant’s Counsel, Stephen Loomis Bucklin

RESP. PARTY: Defendant Maureen McCool

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Defendant’s Counsel, Stephen Loomis Bucklin’s, Motion to Be Relieved as Counsel 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 Defendant has been filed with the court.” (Ibid.)

SERVICE:

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

[ ] Correct Address (CCP §§ 1013, 1013a) YES

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

OPPOSITION: Declarations in Opposition to Motion filed on March 21, 2022, April 29, 2022, and July 29, 2022. [ ] Late [ ] None

REPLY: None filed as of August 4, 2022 [ ] Late [X] None

ANALYSIS:

I. Background

On April 3, 2020, Plaintiff Manhattan Floor Covering, Inc. dba Servpro of Redondo Beach (“Plaintiff’ or “Manhattan Floor”) filed an action against Maureen McCool (“Defendant” or “McCool”) for 1) breach of contract, 2) open book account, and 3) account stated.

On May 21, 2020, Defendant, in propria persona, filed an Answer and on April 22, 2021, filed a Cross-Complaint against Plaintiff/Cross-Defendant Manhattan Floor and Cross-Defendant Interinsurance Exchange of the Automobile Club. Subsequently Cross-Defendant Interinsurance Exchange of the Automobile Club was dismissed. (07-26-2021 Request for Dismissal.) On August 25, 2021, Plaintiff/Cross-Defendant Manhattan Floor filed an Answer to the Cross-Complaint.

On October 16, 2020, Defendant McCool filed a Substitution of Attorney, retaining Attorney Stephen Loomis Bucklin as counsel.

On January 18, 2022, Defendant’s Counsel, Stephen Loomis Bucklin, filed the instant Motion to be Relieved as Counsel. On March 21, 2022, Defendant McCool filed a declaration in opposition to her Counsel’s Motion. On April 7, 2022, the Court granted McCool’s request to continue the hearing on the Motion to allow time for the California State Bar inquiry regarding her counsel and ordered McCool to file a declaration regarding the outcome of the inquiry at least five days before the next scheduled hearing. (4-7-22 Minute Order.) On April 29, 2022, McCool filed a supplemental declaration. On May 9, 2022, the Court continued the hearing on the Motion to August 9, 2022. (5-9-22 Minute Order.) On July 29, 2022, McCool filed another declaration regarding the State Bar investigation. No reply was filed.

II. Legal Standard & Discussion

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).)

Here, Defendant’s counsel Stephen Loomis Bucklin moved the Court to relieve him as attorney of record for Defendant McCool on January 18, 2022. (Motion.) Bucklin has properly filed a Notice of Motion and Motion (MC-051) and Declaration (MC-052) stating that the Motion is due to “irreconcilable breakdown in the attorney-client relationship” and contending that counsel confirmed Defendant’s current address through the State Bar website, as Defendant is an attorney in good standing, and through Defendant’s pleadings. (1-18-22 Declaration, MC-052.) He has also filed a Proposed Order (MC-053.) All documents have been timely filed with the Court and served on all the parties in the case. (1-18-22 Proof of Service.)

In her first Declaration opposing the Motion, Defendant McCool states that she is opposing the Motion on two grounds. (3-21-22 Decl. ¶ 4.) First, she has undergone a serious surgery and currently has significant disabilities that affect her ability to walk, hear, drive, and perform other basic functions. (Ibid. at ¶ 2.) This has also impacted her ability to practice law, as she is an attorney by profession. (Ibid. at ¶ 1-2.) As a person with disabilities, she states that she has additional rights to counsel. (Ibid. at ¶ 4.) Second, she states that she does not have possession of the instant case file. (Ibid.) She believes it was sent to her PO Box, but may gotten “lost, destroyed, misfiled to another PO Box, or sent to the wrong Post Office.” (Ibid.) Defendant McCool also adds that there is an ongoing State Bar investigation against her attorney. (Ibid. at ¶ 5.) On April 7, 2022, the Court granted McCool’s request to continue the hearing on the Motion to allow time for the California State Bar inquiry regarding her counsel and ordered McCool to file a declaration regarding the outcome of the inquiry at least five days before the next scheduled hearing. (4-7-22 Minute Order.)

In her second Declaration, Defendant McCool states that she has provided the State Bar with whatever documents she has, and the investigation is still pending. (4-29-22 Decl. ¶ 1.) She contends that she still does not have the file of the case and her “reasons for filing this Opposition have not changed.” (Ibid. at ¶¶ 2-7.) In the event that the Motion is granted, McCool requests that the Court order her counsel to provide her with all documents in the file, including “emails, phone messages, notes and documents sent to or received from other counsel” and a “90-120 day continuance of this hearing to allow the State Bar to hopefully finish its investigation, and that the Trial be taken off calendar.” (Ibid. at ¶ 8.)

In the third declaration, McCool states that she has received the case file from Counsel Bucklin but finds that there are missing documents and emails. (7-29-22 Decl. ¶¶ 1-2.) She also states that the State Bar investigation is ongoing. (Ibid. at ¶ 3.) Defendant adds that medical opinions still find that she cannot practice law and cannot handle a trial herself. (Ibid. at ¶ 6.) Defendant also requests that the trial setting conference, scheduled for August 9, 2022, be continued because “there is discovery which needs to be completed before litigation can go forward.” (7-29-22 Decl. ¶ 8.)

The instant Motion was filed on January 18, 2022, and was due to “irreconcilable breakdown in the attorney-client relationship.” (1-18-22 Declaration, MC-052.) Defendant McCool has opposed the Motion since March 21, 2022, because of medical reasons, lack of possession of the case file, and the ongoing California State Bar investigation. In her July 29, 2022, declaration, McCool states that she has possession of the file, albeit with missing documents. (7-29-22 Decl. ¶¶ 1-2.) In her March 21, 2022, declaration, she states that she has additional rights to counsel based on her disabilities but provides no legal basis for this statement. (3-21-22 Decl. ¶ 4.) The Court has already continued the hearing on the Motion on two occasions and does not find that further continuances will resolve the conflicts between Defendant McCool and her counsel. Defendant McCool has also had several months to retain new counsel, since her arguments align with that of Attorney Bucklin, that there is a breakdown in the attorney- client relationship and client and counsel are unable to work together.

Given that Counsel Bucklin has satisfied all procedural requirements for filing the Motion and no injustice or undue delay would be result, the Court GRANTS Counsel Bucklin’s Motion to be Relieved as Counsel.

III. Conclusion & Order

For the foregoing reasons, Defendant’s Counsel, Stephen Loomis Bucklin’s, Motion to Be Relieved as Counsel 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 Defendant has been filed with the court.” (Ibid.)