Judge: Michael E. Whitaker, Case: 21SMCV00653, Date: 2023-09-12 Tentative Ruling

Case Number: 21SMCV00653    Hearing Date: September 12, 2023    Dept: 207

TENTATIVE RULING

MOTION

            Michael L. Wachtell of Buchalter, APC, counsel for Defendant Skylark Capital Management, LLC (“Counsel”) moves to be relived as counsel, citing an “irreconcilable conflict of interest.”  No opposition has been filed.

LEGAL STANDARD

Code of Civil Procedure section 284 provides “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment or final determination as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered in the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

Procedural Requirements

California Rules of Court, rule 3.1362, requires:

(1) the motion must be made on form MC-051; (subd. (a));

(2) it must be accompanied by a declaration on form MC-052 stating why the motion is brought under Code of Civil Procedure section 284(2) instead of a consent brought under section 284(1); (subd. (c));

(3) a proposed order on form MC-053 must be lodged with the court, specifying all hearing dates scheduled in the action or proceeding, including the date of trial, if known; (subd. (e)); and

(4) The documents must be served on the client and on all parties that have appeared in the case. (subd. (d).)

If the notice is served by mail or electronic service, it must be accompanied by a declaration indicating that the address served is the current address, or in the case of service by mail, that it was served on the last known address and a more current address could not be located after reasonable efforts within 30 days before filing the motion.  (Ibid.)  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.”  (Ibid.) 

Substantive Requirements

Rules of Professional Conduct, rule 1.16(a) outlines the reasons a lawyer must withdraw from representation of a client:

(1)   the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person;

(2)   the representation will result in violation of the Rules of Professional Conduct or the State Bar Act;

(3)   the lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively; or

(4)   the client discharges the lawyer.

Rules of Professional Conduct, rule 1.16(b) outlines the reasons a lawyer may withdraw from representation of a client:

(1)   the client insists upon presenting a claim or defense in litigation, or asserting a position or making a demand in a non-litigation matter, that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

(2)   the client either seeks to pursue a criminal or fraudulent course of conduct or has used the lawyer’s services to advance a course of conduct that the lawyer reasonably believes was a crime or fraud;

(3)   the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent;

(4)   the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;

(5)   the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation;

(6)   the client knowingly and freely assents to termination of the representation;

(7)   the inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;

(8)   the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;

(9)   a continuation of the representation is likely to result in a violation of these rules or the State Bar Act; or

(10)           the lawyer believes in good faith in a proceeding pending before a tribunal that the tribunal will find the existence of other good cause for withdrawal.

DISCUSSION

            Counsel has filed forms MC-051, MC-052, and MC-053 and a proof of service.  The attorney declaration (MC-052) indicates that the motion was filed instead of filing a consent because “Buchalter, APC ("Buchalter"), has an irreconcilable conflict of interest and cannot continue to represent Skylark Capital Management, LLC ("Skylark"), in this matter. Buchalter has requested that Skylark engage new counsel and has informed Skylark that it cannot represent itself in this matter, but must appear through new counsel.”  As such, the Court finds that the motion is substantively proper.  (See generally Rules Prof.  Conduct, rule 1.7.) 

            The proof of service indicates that all parties were served electronically, and the client was additionally served via U.S. mail, in compliance with California Rules of Court, Rule 3.1362, subd. (d) [“The notice may be by personal service, electronic service, or mail.”]  Paragraph 3(b) of the attorney declaration (MC-052) confirms that the client’s last known mailing address has been confirmed within the past 30 days and is current, in conformance with California Rules of Court, Rule 3.1362, subd.(d)(1)(A).  Therefore, the motion is procedurally proper.

CONCLUSION AND ORDER

            Therefore, the Court grants the Motion to be Relieved as Counsel. 

Counsel must serve the signed order (form MC-053), which shall include information about all future hearings and proceedings noticed by any party, or ordered by the Court, on Defendant Skylark Capital Management, LLC and all other parties who have appeared in the action, within 10 days of the date of this Order, and file a proof of service of such.  Counsel will remain the attorney of record for Defendant Skylark Capital Management, LLC until Counsel files the requisite proof of service.  (See Cal. Rules of Court, rule 3.1362(e).) 

DATED:  September 12, 2023                       ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court