Judge: Katherine Chilton, Case: 21STLC00896, Date: 2023-05-01 Tentative Ruling

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Case Number: 21STLC00896     Hearing Date: May 1, 2023    Dept: 25

PROCEEDINGS:      Motion to be Relieved as Counsel

MOVING PARTY:   Joshua Brinen and Brinen & Associates, LLC, counsel for Defendant Talon Real Estate Holding Corporation

RESP. PARTY:         None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2))

TENTATIVE RULING:

Joshua Brinen of Brinen & Associates, LLC’s motion to be relieved as counsel is DENIED without prejudice.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 [NOT OK]

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 [NOT OK]

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     [NOT OK]

OPPOSITION:          None filed as of April 25, 2023                [   ] Late                      [X] None

REPLY:                     None filed as of April 25, 2023                [   ] Late                      [X] None

ANALYSIS:

I.                Background

On February 2, 2021, Plaintiff Partner Assessment Corporation, a California corporation, dba Partner Engineering and Science, Inc. (“Plaintiff”) filed an action against Defendants Lexbrook-in, LLC, a Delaware limited liability company, Talon Real Estate Holding Corporation, a Minnesota corporation (“Talon”), K Capital, LLC, a Minnesota limited liability company, Matthew Gregory Kamisnki, an individual, Mikhail Kaminski, an individual, and Does 1 through 20 (collectively, “Defendants”), alleging causes of action for Breach of Contract (First Contract), Breach of Contract (Second Contract), Breach of Contract (Third Contract), Breach of Covenant of Good Faith and Fair Dealing, Open Book Account, Account Stated, and Work, Labor, and Services Performed.

On February 1, 2023, Joshua Brinen of Brinen & Associates, counsel for Defendant Talon (“Counsel”), filed a motion to be relieved as counsel. No opposition has been filed.

II.              Legal Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc. § 284, subd. (2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).)

In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either: 

(A) The service address is the current residence or business address of the client; or 

(B) The 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. 

(Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).) 

III.            Discussion

The Court finds numerous defects in Counsel’s motion to be relieved as counsel for Defendant Talon. First, while the proof of service filed on February 1, 2023 indicates a date of execution on February 1, 2023, it fails to indicate the date the documents were served. (Proof of Service (02/01/23). Second, the declaration submitted in support of the motion fails to provide satisfactory proof that client’s address was confirmed within 30 days of the mailing of the motion and related documents. It simply says, “Clients [sic] last known address confirmed by reference to client files and information.” This is insufficient. Per item 3(a) on Form MC-052, Counsel must confirm Talon’s address either by mail with return receipt requested, by telephone, by conversation, or by some other means showing that there was some sort of validation or acknowledgment by someone other than Counsel. Alternatively, if Counsel is unable to confirm the client’s last known address, item 3(b) of the declaration requires Counsel to explain the efforts undertaken to apprise the client of the motion. Third, Counsel has omitted the upcoming trial date of July 17, 2023 from the future hearings portions of Form MC-052 and Form MC-053. In fact, Counsel incorrectly indicates that no trial is scheduled.

The Court further notes that while a motion to be relieved as counsel requires some explanation for the motion, counsel’s declaration needs only to provide details in general terms the basis for the motion without compromising the confidentiality of the attorney-client relationship. (CRC Rule 3.1362(c) [emphasis added].) Counsel may choose to include less detail.

Accordingly, the Court will deny the motion without prejudice.

IV.           Conclusion & Order

Counsel’s motion to be relieved as counsel is DENIED without prejudice.

Moving party is ordered to give notice.