Judge: Mark C. Kim, Case: 22LBCV00022, Date: 2022-10-11 Tentative Ruling
Case Number: 22LBCV00022 Hearing Date: October 11, 2022 Dept: S27
Plaintiff, Adolfo Aburto filed this
action against Defendant, Wendy Diaz on 1/19/22. The complaint seeks partition by sale,
accounting, and order for apportionment of attorneys’ fees and costs
incurred. Plaintiff alleges he and
Defendant are each ½ owners of the subject property, but despite court orders
finding Defendant does not own 100% of the property, she refuses to acknowledge
Plaintiff’s ½ interest in the property and refuses to cooperate in selling the
property.
On 4/13/22, at Plaintiff’s request,
the Clerk entered Defendant’s default.
On 5/25/22, Plaintiff, through his attorney, and Defendant, through her
attorney, entered into a stipulation to set aside the default previously
entered. Defendant filed an answer on
6/09/22.
On 6/20/22, the Court held a Case
Management Conference. Both parties
appeared and participated, and the Court set a trial date of 11/18/22.
On 8/16/22, Defense Counsel filed
this motion to be relieved as counsel, contending Defendant is refusing to
respond to any attempts at communication, and therefore further representation
is impossible. The Court has two
concerns with the motion, which the Court wishes to discuss with Counsel at the
hearing.
a.
Contradictory Statements re: Service
The motion contains contradictory
statements under penalty of perjury. At ¶2
of the form declaration, as well as in the more detailed attached declarations,
Counsel and his assistant declare that there have been ongoing attempts for
over two months to reach Defendant, but she has not responded to any of the
attempts at communication. However, at
¶3, Counsel declares he confirmed Defendant’s address “by conversation” within the
past thirty days. It does not appear
there has been a conversation within the past thirty days.
The Court understands Counsel’s
position, which is that the address was given to him relatively recently, and
he has no reason to believe it doesn’t remain current. The Court wishes to hear from Counsel at the
hearing concerning how he knows the address remains current, and whether he
also served the papers by email, certified mail, or some other means that he knows
arrived.
b.
Trial Date
Additionally, the Court is
concerned about granting relief with the trial date pending in just over a
month.
Unlike their clients, attorneys do not
have an absolute right to withdraw from representation at any time with or
without cause. Even where grounds for termination exist, attorneys seeking to
withdraw must comply with the procedures set forth in California Rule of
Professional Conduct (CRPC) 3-700 and are subject to discipline for failure to
do so. Where withdrawal is not
mandatory, an attorney normally must continue representation on the matter
undertaken. The fact the client or matter proves unpleasant or unprofitable
does not excuse attorney performance. The rules have been liberally construed
to protect clients. See Vann v. Shilleh
(1975) 54 Cal.App.3d 192, 197; Chaleff v. Superior Court (1977) 69 Cal.App.3d
721; Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.
An attorney, either with the client's consent
or the court's approval, may withdraw from a case when withdrawal can be
accomplished without undue prejudice to the client's interests. A lawyer violates his or her ethical mandate
by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or
by withdrawing at a critical point and thereby prejudicing the client’s case. CRPC
3 700(A)(2); Vann, supra, 54 Cal.App.3d at p. 197.
Plaintiff filed a response to the
motion, wherein Plaintiff indicates he does not mind if Counsel is relieved,
but wishes to have the trial date remain firm.
He notes that Defendant was in default, and he only allowed relief from
default because Defendant had retained an attorney and the case could progress
quickly toward trial.
The Court is not inclined to continue
the trial date, and is concerned about having Defense Counsel relieved from representation
at this penultimate date. The Court
understands that Defendant likely will not appear at trial, regardless of
whether Counsel is relieved or not.
The Court wishes to hear from
Counsel concerning these equitable considerations at the time of the
hearing.
The Court asks any party and/or
attorney who will be appearing at the hearing to make arrangements to appear
remotely at the hearing.