Judge: Malcolm Mackey, Case: 20STCV12973, Date: 2023-02-15 Tentative Ruling

Case Number: 20STCV12973    Hearing Date: February 15, 2023    Dept: 55

MAGNOLIA APTS., INC. v. ALTURA ROOFING CORP.                   20STCV12973 

Hearing Date:  2/15/23,  Dept. 55

#5:   MOTION TO BE RELIEVED AS COUNSEL OF RECORD.

Notice:  Okay

No Opposition

MP:  Von Esch Law Group, ALC, attorneys for Defendant ROOF SUPPLY G&F SAN DIEGO.

RP:  

Summary

On 4/2/20, Plaintiff filed a Complaint alleging that the quality of the replaced roofs was below professional roofing standards, including because of damaging water leakage, and other roofs were not replaced, in breach of contract.

The causes of action are:

1. BREACH OF CONTRACT;

2. BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING;

3. NEGLIGENCE;

4. DECLARATORY RELIEF.

On 5/23/22, Defendant ROOF SUPPLY G&F SAN DIEGO filed a First Amended Cross-Complaint against plaintiffs, co-defendants and others, alleging, inter alia, that ROOF SUPPLY had provided uncompensated services and materials on a construction project.

Cross-Complainant’s claims are for:

1. BREACH OF WRITTEN CONTRACT;

2. QUANTUM MERUIT;

3. OPEN BOOK ACCOUNT;

4. IMPLIED INDEMNITY;

5. ON CONTRACTOR'S LICENSE BOND;

6. FORECLOSURE OF MECHANICS LIEN;

7. FORECLOSURE OF MECHANICS LIEN;

8. COMMON COUNT-GOODS AND SERVICES RENDERED. AGAINST STUDIO VILLAGE APARTMENTS

9. COMMON COUNT-GOODS AND SERVICES RENDERED AGAINST BALBOA POINTE APARTMENTS.

MP Positions

Counsel moves to be relieved as attorney of record, based upon a form declaration evidencing that there has been a total breakdown in the communication and/or the attorney client relationship between Defendant and counsel, which prevents counsel from effectively representing Defendant.  Additionally, there are irreconcilable differences between the client and counsel.

Tentative Ruling

The motion is granted.

Procedurally, the form notice, declaration, proposed order, and proof of service are sufficiently in compliance.  See  CRC Rule 3.1362.

Additionally, moving counsel’s declaration shows cognizable grounds for withdrawal:

• Breakdown in the attorney-client relationship (or personality clash).  Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1014.
• Client by conduct renders it unreasonably difficult for the member to carry out the employment effectively (e.g., noncooperation or noncommunication).  Rules Prof. Conduct, Rule 1.16(b)(4).  Cf.  Estate of Falco (1987) 188 Cal. App. 3d 1004, 1020 (“We find no abuse of discretion in the trial court's implicit finding rejecting the contention that respondents' lack of cooperation justified appellants' withdrawal.”).

Further, no opposing papers have been filed in order to evidence any prejudice to the client.  See  Rules Prof. Conduct, Rule 1.16(d).   In the 1/30/22 minutes, the Court stated:  “The court notes that trial is scheduled for February 27, 2023. The court is inclined to deny the motion to be relieved as counsel this close to trial.”  However, having counsel represent Defendant likely would be futile and harmless, while the client is not communicating in order to assist in litigation.

Further, courts can allow withdrawal of an attorney representing a corporation.   Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2022) §2:116.5 (citing Gamet v. Blanchard (2001) 91 Cal.App.4^th 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 would be 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.