Judge: Mel Red Recana, Case: 20STCV37149, Date: 2024-04-24 Tentative Ruling
Case Number: 20STCV37149 Hearing Date: April 24, 2024 Dept: 45
Hearing date: April 24, 2024
Moving Party: Michael J. Sachs, John D. Van
Ackeren, and Callahan & Blaine
Responding Party:
Unopposed
Motions to be Relieved as Counsel for Plaintiffs Bac
Tran and B&P Investment Groups LLC, and for Cross-Defendant Phoung Ma
The Court has
considered the moving papers. No opposition papers were filed.
The motions to
be relieved as counsel are GRANTED.
Background
This
action arises from the alleged breach of an agreement concerning the sale of a
supermarket. On September 29, 2020, Plaintiffs Bac Tran and B&P Investment
Groups LLC filed a Complaint against Defendants Tresierras Brothers
Corporation, Tresierras Enterprises, LLC, Richard C. Tresierras, Arthur R.
Tresierras, Mark A. Tresierras, Christopher R. Tresierras, Wei Hua “Remy” Chen,
Ivy Realty, Inc., and Does 1 through 100 (collectively “Defendants”), inclusive
alleging, among other claims, claims for breach of contract, fraud, and
intentional misrepresentation. The Complaint sets forth twelve (12) causes of
action.
On
March 3, 2021, Plaintiffs Bac Tran and B&P Investment Groups LLC filed a
First Amended Complaint alleging 12 causes of action against Defendants.
On
August 2, 2021, the Court, pursuant to the motion for an order appointing
referee filed by Defendants Tresierras Brothers Corporation, Tresierras
Enterprises, LLC, Richard C. Tresierras, Arthur R. Tresierras, Mark A.
Tresierras, and Christopher R. Tresierras (the “Tresierras Parties”), appointed
a referee pursuant to CCP § 668 to hear and determine Plaintiffs’ claims
against such defendants. (08/02/21 Minute Order.)
On
December 14, 2021, Plaintiffs Bac Tran and B&P Investment Groups LLC filed
a Second Amended Complaint alleging 12 causes of action against Defendants.
On
January 13, 2022, the Tresierras Parties filed a Cross-Complaint against
Plaintiffs Bac Tran and B&P Investment Groups LLC, and Phoung Ma alleging
claims such as breach of contract and unjust enrichment.
On
April 5, 2022, Plaintiffs Bac Tran and B&P Investment Groups LLC filed the
operative Third Amended Complaint (“TAC”) against Defendants alleging causes of
action for: (1) breach of written contract; (2) fraud; (3) intentional
misrepresentation; (4) negligent misrepresentation; (5) rescission of contract;
(6) intentional misrepresentation; (7) negligent misrepresentation; (8)
negligence; and (9) breach of fiduciary duty.
After
a motion for summary adjudication was filed by the Tresierras Parties as to the
limitations issue in the Second Amended Complaint and on the Cross-Complaint,
and was heard by the referee, on February 20, 2024, the Court entered judgment
in favor of the Tresierras Parties on the Cross-Complaint. (02/20/24 Judgment.)
As to the Second Amended Complaint, the Court entered judgment in favor of
Plaintiffs on the first cause of action and entered judgment in favor of the
Tresierras Parties on the second, third, fourth, and fifth causes of action. (Id.)
On
February 21, 2024, Plaintiffs filed a notice of appeal as to referee’s ruling
on Defendants’ motion for sanctions against Plaintiffs and their former
counsel.
On
February 28, 2024, Michael J. Sachs, John D. Van Ackeren, and Callahan &
Blaine (collectively “Counsel”), filed the instant motions to be relieved as
counsel for Plaintiff B&P Investment Groups LLC (“B&P), Plaintiff Bac
Tran (“Tran”), and Cross-Defendant Phoung Ma (“Ma”). The Court will address the
respective motions in this one ruling.
After
the motions to be relieved as counsel were filed, on March 5, 2024, the Court
held a Status Conference re: Referee. (03/05/24 Minute Order.) The Court
granted counsel’s request to have the motions to be relieved as counsel all
heard on the same date and the motions to be relieved as counsel as to Ma and
B&P were advanced and continued to April 24, 2024. (03/05/24 Minute Order.)
The Court continued the Status Conference re: Referee to April 24, 2024.
(03/05/24 Minute Order.) Counsel for B&P, Tran, and Ma filed and served
notice of the Court’s March 5, 2024 order.
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. (Code of Civ. Proc., § 284(2).) “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) (Cal. Rules of Court, rule 3.1362(a)),
MC-052 (Declaration) (Cal. Rules of Court, rule 3.1362(c)), and MC-053
(Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). The proposed order must
specify all hearing dates scheduled in the action or proceeding, including the
date of trial, if known. (Cal. Rules of
Court, rule 3.1362(e).)
Further, the requisite forms must be served on
the client and all other parties who have appeared in the case. (Cal. Rules of
Court, rule 3.1362(d).) The court may delay the effective date of the order
relieving counsel until proof of service of a copy of the signed order on the
client has been filed with the court. (Cal. Rules of Court, rule 3.1362(e).) A
motion to withdraw will not be granted where withdrawal would prejudice the
client. (Ramirez v.
Sturdevant (1994) 21 Cal.App.4th 904, 915.)
Discussion
Appropriateness of Granting the Motions
The motions to be relieved as counsel as
to B&P, Tran, and Ma are all compliant with California Rules of Court, Rule
3.1362. In support of the motions to be relieved as counsel, John D. Van
Ackeren declares that B&P, Tran, and Ma have each breached the terms of the
retainer agreement and their conduct has rendered it unreasonably difficult for
counsel to carry out the representation effectively. Mr. Ackeren states that
there has been a breakdown in the attorney-client relationship between Counsel
on one hand, and B&P, Tran, and Ma on the other hand.
The Court GRANTS the motions to be
relieved as counsel for B&P, Tran, and Ma as Counsel has stated sufficient
grounds to be relieved as counsel.
As a limited liability company, however, Plaintiff B&P cannot appear
in this case without an attorney because “a corporation, unlike a natural
person, cannot represent itself before courts of record in propria persona, nor
can it represent itself through a corporate officer, director or other employee
who is not an attorney. It must be represented by licensed counsel in
proceedings before courts of record.” (CLD Construction, Inc. v. City of San
Ramon (2004) 120 Cal.App.4th 1141, 1146 [citation omitted].)
It is so
ordered.
Dated:
April 24, 2024
_______________________
ROLF M. TREU
Judge of the
Superior Court