Judge: Katherine Chilton, Case: 21STLC04956, Date: 2022-10-11 Tentative Ruling

Case Number: 21STLC04956    Hearing Date: October 11, 2022    Dept: 25

PROCEEDINGS:      MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:   Counsel Dillon D. Chen, for Defendant Fair Servicing, LLC

RESP. PARTY:         None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284, CRC rule 3.162)

TENTATIVE RULING:

Counsel Dillon D. Chen’s Motion to Be Relieved as Counsel as to Defendant Fair Servicing, LLC 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:

[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 October 7, 2022.               [   ] Late                      [X] None

REPLY:                     None filed as of October 7, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 7, 2021, Plaintiff Debbie Anne Lallave (“Plaintiff”) filed an action against Defendant Fair Servicing, LLC (“Fair Servicing”) for violation of Song-Beverly Consumer Warranty Act, Civil Code § 1790, et seq.

On August 23, 2021, Defendant filed an Answer.  Defendant also filed a Motion to Compel Arbitration and Stay Proceedings.

On January 24, 2022, Plaintiff filed a Notice of Settlement of Entire Case.

On July 20, 2022, Counsel for Defendant Fair Servicing, Dillon D. Chen filed a Motion to be Relieved as Counsel (“Motion”).  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

On July 20, 2022, Counsel Dillon D. Chen (“Chen”) moved the Court to relieve him as attorney of record for Defendant Fair Servicing.  (Mot. (MC-051).)  Counsel properly filed a Notice of Motion and Motion (MC-051).  Counsel also filed a Declaration in Support of the Motion (MC-052) stating,

A fundamental and irreconcilable breakdown in the attorney-client relationship between Dinsmore & Shohl LLP and Fair Servicing, LLC ("Fair") has occurred. Fair has failed to respond to numerous communication attempts by counsel regarding this matter and counsel has informed Fair that they will withdraw. Counsel is unable to continue acting on behalf of Fair. As a result, Dinsmore & Shohl LLP's withdrawal is both necessary and appropriate. Counsel has served this Notice on Fair's agent for service of process.

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

All documents were served on Plaintiff and Defendant on July 20, 2022.  (7-20-22 Proof of Service.)  Defendant has been served by mail at its last known address which was confirmed by Counsel within the past 30 days through the California Secretary of State Registered Agent Search.  (MC-052, ¶ 3.)

Given that Counsel Chen has satisfied all procedural requirements for filing the Motion and because there is no showing that withdrawal would cause injustice or undue delay in the proceedings, the Court GRANTS Counsel Chen Motion to be Relieved as Counsel for Defendant Fair Servicing.

IV.           Conclusion & Order

For the foregoing reasons,

Counsel Dillon D. Chen’s Motion to Be Relieved as Counsel as to Defendant Fair Servicing, LLC 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.)

Moving party is ordered to give notice.