Judge: Malcolm Mackey, Case: 22STCV20009, Date: 2023-02-28 Tentative Ruling

Case Number: 22STCV20009    Hearing Date: February 28, 2023    Dept: 55

REA v. SPECIALIZED LOAN SERVICING, LLC                                22STCV20009 

Hearing Date:  2/28/22,  Dept. 55

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

Notice:  Okay

No Opposition

MP:  Tony Cara, CDLG, PC, counsel of record for Plaintiff.

RP:  

Summary

On 6/20/22, Plaintiff JUAN REA filed a Complaint alleging that, on 3/27/14, Defendant recorded a Notice of Default on Plaintiff’s home, but Plaintiff had been advised that his loan was charged off, Defendant failed to provide period statements from 2006 to 2019, and Defendant committed various statutory violations, such as failing to advise the homeowner in writing within 30 days that the Deed of Trust was assigned to a third party.

The causes of action are:

1. VIOLATION OF CIV. CODE § 2923.5;

2. VIOLATION OF CIV. CODE § 2924(a)(1);

3. VIOLATION OF CIV. CODE § 2923.6(c);

4. VIOLATION OF THE TRUTH IN LENDING ACT, TITLE 12 C.F.R. § 1026.41, ENFORCEABLE THROUGH TRUTH IN LENDING ACT, TITLE 15 U.S.C. § 1640, PERIODIC LOAN STATEMENT REQUIREMENT;

5. VIOLATION OF THE ROSENTHAL FAIR DEBT COLLECTION PRACTICE ACT, CIV.CODE § 1788.30;

6. VIOLATION OF FIN.CODE §4978(a) AND CONST. ART. XV, §1, USURY RATE;

7. UNFAIR BUSINESS PRACTICES, VIOLATION OF BUS. & PROF. CODE § 17200, ET SEQ.;

8. CANCELLATION OF WRITTEN INSTRUMENTS, CIV.CODE § 3412.

MP Positions

Counsel moves to be relieved as attorney of record, on grounds including the following:

·         The client has been uncooperative regarding the continuation of his case.

·         This has made it extremely difficult for the attorney to carry out representation effectively.

·         The attorney client relationship has been compromised.

·         A withdrawal of representation is necessary under California Rules of Professional Conduct  3-700(C)(d) and 3-700(C)(f).

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). 

“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.

*IF PARTIES SUBMIT ON THE COURT’S TENTATIVE RULING; PLEASE CALL THE COURTROOM AT 213-633-0655*