Judge: Malcolm Mackey, Case: 21STCV21741, Date: 2023-03-20 Tentative Ruling

Case Number: 21STCV21741    Hearing Date: March 20, 2023    Dept: 55

SANCHEZ v. MELISSA OPPENHEIMER,                                             21STCV21741

Hearing Date:  3/20/23,  Dept. 55.

#8:   MOTION TO BE RELIEVED AS COUNSEL.

Notice:  Okay

No Opposition

MP:  DAG LAW FIRM, APC, counsel of record for Plaintiff Gael Nepomuceno, a minor by and through his guardian ad litem, Maria Luisa Gonzalez.

RP:  

Summary

On 6/10/21, plaintiffs filed a Complaint alleging that they have been tenants at 322 E. 62nd Street, Los Angeles, where there have been uninhabitable conditions including insects infestation and dilapidation or improper maintenance.

The causes of action are:

1. BREACH OF WARRANTY OF HABITABILITY

2. BREACH OF COVENANT OF QUIET ENJOYMENT

3. NEGLIGENCE

4. BREACH OF CONTRACT.

MP Positions

Counsel move to be relieved as attorney of record, based upon a form declaration evidencing that

·         There has been an irreparable breakdown of the working relationship between counsel and the client.

·         There have been the client's lack of cooperation and failure to communicate.

·         There has been breach of the retainer agreement.

·         This conflict has recently arisen making it unreasonably difficult to continue representing the client.

·         The details of the disagreement and conflict cannot be disclosed as it involves privileged communications.

·         Little, if any, prejudice would befall the Plaintiff.

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 form declaration shows cognizable grounds for withdrawal:

• Client breaches an agreement or obligation to the member as to expenses or fees.  Rules Prof. Conduct, Rule 1.16(b)(5);  Lempert v. Sup. Ct. (2003) 112 Cal. App. 4th 1161, 1173.
• 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). 

Moving counsel can request an in camera hearing for furnishing further details as to whether a motion to withdraw should be granted.   Manfredi & Levine v. Sup. Ct. (1998) 66 Cal. App. 4th 1128, 1136.

“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.

Courts can allow withdrawal of an attorney representing a guardian ad litem, although generally the motion should be denied unless there will be substitute counsel (1 Witkin Cal. Pro. (5th ed. 2008) Att’ys §71(2)), and when a dispositive motion is imminent ( Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2022) §9:385.4 (citing Mossanen v. Monfared (2000) 77 Cal.App.4^th 1402, 1409-10)).