Judge: Lee S. Arian, Case: 22STCV18378, Date: 2024-02-13 Tentative Ruling

Case Number: 22STCV18378    Hearing Date: February 13, 2024    Dept: 27

Tentative Ruling

Judge Lee Arian, Department 27

HEARING DATE:     February 13, 2024                 TRIAL DATE:  May 8, 2024

CASE:                            Zhoie Perez v. MMR Center, Inc., et al.

CASE NO.:                 22STCV18378

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY:               Jeff Katofsky, Counsel for Defendants MMR Center, Inc., Green Angels, and Tony Santillan

RESPONDING PARTY:      Plaintiff Zhoie Perez

I.          INTRODUCTION

            On June 3, 2022, Plaintiff Zhoie Perez (“Plaintiff”) filed a complaint against defendants MMR Center, Inc. (“MMR”), Green Angels, and Tony Santillan (collectively “Defendants”) and Does 1-50 alleging causes of action for (1) assault and battery, (2) negligence, (3) violation of the Ralph Civil Rights Act, (4) violation of the Bane Civil Rights Act, (5) violation of the Unruh Civil Rights Act, and (6) false imprisonment.

            On November 6, 2023, Defendants filed a notice of removal with the United States District Court for the Central District of California. On November 21, 2023, the District Court remanded the case to this Court because removal was procedurally improper and the federal court lacked subject matter jurisdiction.

On January 8, 2024, defense counsel Jeff Katofsky (“Katofsky”) and his law firm, Katofsky Law, filed this instant motion to be relieved as counsel for Defendants and the accompanying declaration and proposed order. Plaintiff filed its opposition on January 30, 2024. Katofsky replied on February 5, 2024.

II.        LEGAL STANDARD

The motion is made pursuant to CCP § 284(2) and CRC, Rule 3.1362. 

Code of Civil Procedure § 284(1) allows for a change or substitution of attorney “[u]pon the consent of both client and attorney, filed with the clerk, or entered upon the minutes.” If both parties do not consent to a substitution of attorney, Code of Civ. Proc. §284(2) allows for a substitution “[u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” California Rules of Court Rule 3.1362 sets forth procedures for relieving counsel without the mutual consent of both parties. 

Under California Rules of Court Rule 3.1362, an attorney seeking to withdraw by motion rather than by consent of the client, as here, is required to make that motion using approved Judicial Council forms. The motion also requires a declaration stating “in general terms, and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure § 284(2) is brought instead of filing a consent under Code of Civil Procedure § 284(1).” (Cal. Rules of Ct., Rule 3.1362(c).) Judicial Council form MC-052, the attorney’s declaration, requires that the client be provided no less than five days’ notice before hearing on the motion.  A proposed order prepared on form MC-053 must also be lodged with the court with the moving papers. 

California Rules of Court Rule 3.1362(d) also requires that the motion, notice of motion, the declaration, and the proposed order must be served on the client and all other parties who have appeared in the case. The notice served on the client by mail must be accompanied by a declaration stating facts that show that either the service address is current or “that [t]he 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 Ct., Rule 3.1362(d)).  

III.      DISCUSSION

            Counsel Katofsky states that his clients (the defendants in this action) failed to pay their legal bills and he and his clients have irreconcilable differences. (MC-052, ¶ 2.) Katofsky states that he is willing to provide the court with more details over video call. (Id.)

            Plaintiff opposes this motion on the grounds that MMR, a corporation, cannot act without representation. Plaintiff argues that Katofsky may not be relieved as counsel before he tenders MMR’s defense to MMR’s insurance carrier. MMR produced documentation of its commercial insurance policy for the relevant time period during discovery. (Hernandez Decl., ¶ 2, Exh. A.)

            In reply, Katofsky notes that Plaintiff is knowingly making an unreasonable request. Plaintiff failed to acknowledge in her opposition papers that Plaintiff has already, and unsuccessfully, demanded MMR’s insurance carrier to indemnify her for damages. (Reply, III.) In August 2022, MMR’s insurance carrier advised MMR that it would deny tender of coverage. When Plaintiff found out, she sent a “threatening letter” to the insurance carrier demanding coverage. That demand was denied. (Id.)

            Moreover, Katofsky argues that notwithstanding the above, good cause exists to relieve him as counsel. Citing Ferruzzo v. Superior Ct. (1980) 104 Cal.App.3d 501, 504, Katofsky argues that relief from representation is proper where the corporation is uncooperative and fails to pay its legal fees. Katofsky also cites Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 for the idea that “[t]he ban on corporate self-representation does not prevent a court from granting a motion to withdraw as attorney of record, even if it leaves the corporation without representation.”

IV.       CONCLUSION

            Katofsky’s motion to be relieved as counsel is granted.  

Moving party to give notice. 

Dated:   February 13, 2024

                                                                                        ___________________________________

                                                                                    Lee S. Arian

                                                                                    Judge of the Superior Court

            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.