Judge: Malcolm Mackey, Case: 20STCV09398, Date: 2023-09-13 Tentative Ruling

Case Number: 20STCV09398    Hearing Date: September 13, 2023    Dept: 55

AMIR FATEMI. v.   ATLANTIC CASUALTY INS. CO.   20STCV09398

Hearing Date:  9/13/23,  Dept. 55

#11:   MOTION TO BE RELIEVED AS ATTORNEYS OF RECORD.

Notice:  Okay

Opposition

MP:  Counsel of Record for Plaintiffs DREAM MOTOR CARS, INC., AMIR FATEMI and FATEMI GHAZALEH.

RP:  Defendants ARIES PREPARED BEEF COMPANY and FRED JOE SCHOLDER

Summary

On 3/9/20, petitioners DREAM MOTORS CARS, INC., GHAZALEH FATEMI and AMIR FATEMI filed a Petition.

On 6/20/22, plaintiffs (formerly petitioners) filed a First Amended Complaint (formerly petition), requesting declaratory relief regarding insurance benefits, after allegedly sustaining property damage and personal injury in a multi-vehicle accident in August 2019, involving a car owned or driven by the Lunas respondents, added as DOE amendments on 8/16/21, after the petitioners' depositions were taken.

MP Positions

Moving counsel request an order relieving them as plaintiffs’ attorneys of record, on grounds including the following:

·         There is a conflict of interest between plaintiffs requiring attorney withdrawal.

·         There remains sufficient time before trial for plaintiffs to obtain substitute counsel.

RP Positions

Opposing parties advocate the order condition of vacating the trial date of October 16, 2023 until plaintiff Dream Motors is able to retain counsel, for reasons including the following:

·         Defendants have been prejudiced by the fact that the late discovery of the conflict of interest was communicated the day before dates for depositions of the plaintiffs.

·         Given the corporate status of plaintiff Dream Motor Cars, Inc., it cannot legally represent itself. See Caressa Camille, Inc. v. Alcohol Beverage Control Appeals Board (2002) 99 Cal.App.4th 1094, 1101-03.

Tentative Ruling

The motion hearing is continued to 10/2/23 at 8:30 a.m. in Department 55.

Procedurally, a form notice, form declaration, proposed form order were not filed.  See  CRC Rule 3.1362. They may be served and filed at least 10 days before the continued hearing date.

However, moving counsel’s declaration shows a cognizable ground for withdrawal:

• The member knows or should know that continued employment will result in violation of these rules or of the State Bar Act.  Rules Prof. Conduct, Rule 1.16.

Further, no opposing papers have been filed by the plaintiffs in order to evidence any prejudice to the clients.  See  Rules Prof. Conduct, Rule 1.16(d). 

Courts can allow withdrawal of an attorney representing a corporation.   Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2023) §2:116.5 (citing Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284);  Ferruzzo v. Sup. Ct. (1980) 104 Cal.App.3d 501, 504.  However, a substitution of attorney form filed as to a corporation proceeding as a self-represented litigant is void.  Johnson v. Hayes Cal. Builders, Inc. (1963) 60 Cal.2d 572, 576.

“The determination whether to grant or deny an attorney 's motion to  withdraw as counsel of record 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.”  Lempert v. Sup. Ct. (2003) 112 Cal. App. 4th 1161, 1173.  See also  Jones v. Green (1946) 74 Cal. App. 2d 223, 230.

A trial continuance may be required where attorney withdrawal was unforeseeable.  Vann v. Shilleh (1975) 54 Cal. App.3d 192, 198-199.