Judge Kerry Bensinger, Case 19STCV41365 2023-03-07 Tentative Ruling

¿¿RICHARD FEI, et al.¿,

Plaintiff(s),

vs.

¿¿ANN CHAN, et al.¿

Defendant(s).

)

CASE NO.: ¿19STCV41365¿

[TENTATIVE] ORDER RE:

MOTION TO BE RELIEVED AS COUNSEL

Dept. 27

1:30 p.m.

¿¿March 7¿, 2023

BACKGROUND

On ¿November 18, 2019¿, plaintiffs ¿Richard Fei and Alice Fei¿ (collectively, “Plaintiffs”) filed this action against defendants ¿Ann Chan and Hung Vi Truong¿ (collectively, “Defendants”), for damages arising from a motor vehicle collision.

Plaintiffs are represented by Michael A. Killackey of Killackey Law Offices and Ted B. Wacker of Law Offices of Ted B. Wacker (collectively, “Co-Counsel”). On January 12, 2023, Co-Counsel notified Plaintiffs that they wanted to substitute out of the case and asked Plaintiffs to sign Substitution of Attorney Forms. Plaintiffs declined.

On February 2, 2023, Co-Counsel filed this Motion to be Relieved as Counsel (“Motion”).¿ Co-Counsel declare “there has been a serious and irreparable breakdown in the attorney-client communication and breakdown in the attorney-client relationship such that continued representation of Plaintiff has been made unreasonably difficult.”

On February 22, 2023, Plaintiffs filed an opposition, arguing that Co-Counsel’s Motion is a sham and further, their withdrawal would substantially prejudice Plaintiffs, who are elderly and infirm, and unduly delay the case.

On February 28, 2023, Co-Counsel filed a reply, arguing (1) Plaintiffs have sufficient time to secure new counsel because trial is over three months away, discovery deadlines have not passed, and expert witnesses for both parties have already been designated, and (2) there is no support for Plaintiffs’ assertion that they are unable to find new counsel.

On March 3, 2023, Plaintiffs filed the declaration of John Fei in response to Counsel’s reply. John Fei (“John”) is Plaintiffs’ son. John declares that Co-Counsel mischaracterize the facts of their legal representation. Specifically, Co-Counsel prepared and served a Designation of Expert Witnesses Pursuant to C.C.P. § 2034.210 (“Designation of Expert Witnesses”) on August 2, 2022, which identifies Devin K. Binder M.D., Ph.D. (“Dr. Binder”) as Plaintiffs’ retained expert witness. However, upon inquiry, John determined that Dr. Binder’s office had no record that Dr. Binder had been retained to testify as an expert for Plaintiffs. Further, the Designation of Expert Witnesses names Dr. Binder as an expert witness to testify as to a Plaintiff Sophie Wei. John states he does not know Sophie Wei and that she is not a party to this case. John also details extensive efforts to find new counsel for Plaintiffs.

LEGAL STANDARD

“The question of granting or denying an application of an attorney to withdraw as counsel (Code Civ. Proc., § 284, subd. (2)) is one which lies within the sound discretion of the trial court ‘having in mind whether such withdrawal might work an injustice in the handling of the case.’ [Citation.]” (People v. Prince (1968) 268 Cal.App.2d 398, 406 [internal quotations omitted].) The court should also consider whether the attorney’s “withdrawal can be accomplished without undue prejudice to the client’s interests.” (Ramirez v. Sturdivant (1994) 21 Cal.App.4th 904, 915.)

California Rules of Court, rule 3.1362 requires that the following be submitted in support of an attorney’s Motion to Be Relieved as Counsel pursuant Code of Civil Procedure section 284, subdivision (2): (1) a notice of motion and motion directed to the client (made on Notice of Motion and Motion to Be Relieved as Counsel—Civil (Judicial Council Form, MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284, subdivision (2) is brought instead of filing a consent under Code of Civil Procedure section 284, subdivision (1) (made on Declaration in Support of Attorney’s Motion to Be Relieved as Counsel—Civil (Judicial Council Form, MC-052)); (3) a proof of service evidencing service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on Order Granting Attorney’s Motion to Be Relieved as Counsel—Civil (Judicial Council Form, MC-053)). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (d), (e).)

“The court may exercise its discretion not to permit withdrawal on the eve of trial or under other circumstances that pose obvious rise of prejudice to the client.” (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 9:385.2.)

DISCUSSION

Upon review of the papers, the Court finds that an order granting Co-Counsel’s Motion would prejudice Plaintiffs for the following reasons:

First, Plaintiffs are elderly (over the ages of 80 and 70, respectively) and infirm. Relieving counsel at this point will likely result in significant delays in the case, which, given Plaintiffs ages and multiple infirmities, will put the case at risk both in terms of Plaintiffs vigor to assist in prosecution of the case and the ability to find new counsel.

Second, there are several motions to compel Defendants’ depositions scheduled to be heard in April and May. New counsel would not be prepared to argue these motions if Co-Counsel withdrew at this point necessitating continuances of the motions to compel. Given the Court’s congested calendar, new reservation dates for these motions would significantly delay the proceedings. And even if the motions were granted, new counsel would need additional time to prepare for the depositions.

Third, John’s declaration recounts substantial efforts to locate substitute counsel, all to no avail. John states having contacted “more than two dozen attorneys and/or law firms…. None of these lawyers or law firms has wanted to take on this case.” (John Fei Decl., ¶ 13.) John further states that he has “exhausted every legitimate attorney referral service … along with every legal and family contact [he] has … without success.” (Id.)

Fourth, John’s declaration cast some doubt on Co-Counsel representations that the case is in good shape and ready to be tried by new counsel. John’s declaration specifically points to discrepancies in the status of the allegedly retained and designated expert. Naturally, the more work there is to be done to prepare for trial (including motions to reopen discovery, designate experts, compel depositions, etc.), the less likely Plaintiffs will be able to locate new counsel and, even if they were able to locate counsel, the efforts to ramp up the case would likely result in further delays, all to the detriment of the Plaintiffs.

Fifth, while Co-Counsel cannot waive privilege, Plaintiffs can, and they do not indicate there is a break down in the attorney client relationship warranting relief. (See Plaintiffs’ Decls., ¶¶ 12, 13.) (See, e.g., Manfredi & Levine v Superior Court (1998) 66 Cal.App.4th 1128, 1133 (holding, in a motion to be relieved as counsel based on conflict, “[w]here issues of confidentiality prevent counsel from further disclosure and the court [accepts] the good faith of counsel’s representations, the court should find the conflict sufficiently established and permit withdrawal.” However, “the trial court need not accept a sweeping a claim of conflict and rubber stamp counsel’s request to withdraw.”).) Plaintiffs’ and John’s declarations undermine somewhat Co-Counsel's sweeping claims that the attorney-client relationship has completely broken down. No doubt, Plaintiffs’ and John’s suggestion that Co-Counsel efforts to be relieved is a “sham” points to some friction in the relationship, but that friction relates to the tension created by counsel seeking to be relieved under these circumstances. The undeniable fact is that Plaintiffs wish to continue with Co-Counsel's representation. This is convincing evidence that the attorney client relationship has not broken down to a degree necessitating relief. Indeed, Plaintiffs are adamant that they are willing to assist in the prosecution of their case with Co-Counsel and do not want new counsel. (See Plaintiffs’ Decls., ¶ 5.)

Seventh, trial is set for June 29, 2023, which is roughly three months away. While not the eve of trial, three months is too close a trial date to expect new counsel to substitute into the case under these circumstances. John’s efforts and declaration makes the point. Moreover, this case was filed in 2019, and Co-Counsel have represented Plaintiffs for over three years.

To leave the case now, three months before trial, with several motions pending, discovery to be done, including expert discovery, and the unlikely prospect of finding new counsel, would severely prejudice Plaintiffs’ case.

CONCLUSION

The motion is DENIED.

Moving parties to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.