Judge: Michael E. Whitaker, Case: 24SMCV04108, Date: 2024-11-20 Tentative Ruling

Case Number: 24SMCV04108    Hearing Date: November 20, 2024    Dept: 207

TENTATIVE RULING

MOTION

            Randy Chang of The Chang Firm, counsel for Plaintiff Nadia Heshmati (“Counsel”) moves to be relived as counsel, citing a “fatal breakdown in communication[.]”  Plaintiff Nadia Heshmati (“Plaintiff”) opposes the motion and Counsel replies. 

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.  The attorney declaration (MC-052) indicates that the motion was filed instead of filing a consent because “There is a fatal breakdown in communication between attorney and client such that it would be impractical and impossible to effectively represent the client.” 

Plaintiff opposes the motion on the grounds that she does not have money to pay another lawyer (Heshamti Decl. at ¶¶ 14-16; 18; 22-23), but also indicates that there may be a conflict of interest between Counsel and the opposing party Defendant Michael Carbajal.  (Heshmati Decl. at ¶¶ 9-13.)

The Court finds that both Counsel’s and Plaintiff’s declarations demonstrate there has been an irreparable breakdown of the attorney-client relationship.  As such, the Court finds that the motion is substantively proper.  (See generally Rules Prof.  Conduct, rule 1.16(b)(4).) 

            The proof of service indicates that the motion (form MC-051) was served on the client by mail and email.  However, there is no indication that forms MC-052 or MC-053 were served on any party.  Specifically, there is no indication that either Defendant (both of whom have answered) was served the required forms.  (See Cal. Rules of Court, rule 3.1362(d) [“The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail”].)   As such, the Court finds the motion to be procedurally defective.

CONCLUSION AND ORDER

            For the foregoing reasons, the Court continues the hearing to January 15, 2025 at 8:30 A.M. in Department 207 to enable Counsel to properly serve the required forms. 

            Further, on the Court’s own motion, the Court continues the Case Management Conference from January 7, 2025 to January 15, 2025 at 8:30 A.M. in Department 207.  All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725). 

Counsel shall provide notice of the Court’s ruling and the continued proceedings.  Thereafter, Counsel shall file the notice and proof of service to demonstrate compliance with the Court’s orders and the California Rules of Court.

DATED:  November 20, 2024                       ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court