Judge: Mark A. Young, Case: 23SMCV00513, Date: 2024-12-13 Tentative Ruling

Case Number: 23SMCV00513    Hearing Date: December 13, 2024    Dept: M

CASE NAME:           Falkner v. Smile Direct Club, et al.

CASE NO.:                23SMCV00513

MOTION:                  Motion to be Relieved

HEARING DATE:   12/13/2024

LEGAL STANDARD

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (CCP § 284(2).) The attorney seeking to withdraw must take “reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel.” (Cal. Rules of Prof. Conduct, 3-700(A)(2). See, e.g., Vann v. Shilleh (1975) [holding withdrawal prejudicial where attorney withdraw from the representation of defendant on the Friday before trial began the following Monday].) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) 

An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (CRC 3.1362(a), (c), (e).) The requisite forms must be served “on the client and on all parties that have appeared in the case.” (CRC, 3.1362(d).) When a client is served by mail, the attorney’s declaration must indicate that the client’s address was confirmed within the last 30 days and how it was confirmed. (Id.) If the attorney is unable to confirm the client’s current address, the declaration must state the reasonable efforts made within the last 30 days to obtain the client’s current address. (Id.)

Additionally, the declaration “must state in general terms and without compromising the confidentiality of the attorney client relationship why” a motion is brought instead of filing a substitution of attorney. (CRC, 3.1362(c).)

ANALYSIS

Counsel Krista M. Enns and Benesch, Friedlander, Coplan & Aronoff LLP move to be relieved as counsel of record for Defendant SmileDirectClub LLC.

Counsel submits all the mandatory forms. Counsel states that an irreparable breakdown of the attorney-client relationship has occurred because SmileDirectClub, LLC’s bankruptcy resulted in Chapter 7 liquidation, and it has insufficient assets to pay for counsel. Counsel states that they have not been paid for work since at least August 2023. Counsel served his client by mail at his last known address, which was confirmed within the past 30 days by email. The declaration notes the hearings that are on calendar, including the Status Conference re: Bankruptcy. Given that there is no trial date and the action is stayed, the client will not be prejudiced by the withdrawal.

Accordingly, the motion is GRANTED. The order is effective upon the filing of the proof of service of the order on the client. Until then, counsel remains counsel of record. The court sets an OSC re: representation to be heard at the next status conference.