Judge: Michelle C. Kim, Case: 23STCV17048, Date: 2024-09-11 Tentative Ruling
Case Number: 23STCV17048 Hearing Date: September 11, 2024 Dept: 78
BACKGROUND
On June 20, 2023, Plaintiff Zaheer Goodman-Bhyat (“Plaintiff”) filed a Complaint against Defendants Evolver Group, LLC (“Evolver”), Cheni Yerushalmi (“Yerushalmi”), and Adam Gerstein (“Gerstein”) (collectively, “Defendants”).
On September 13, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants alleging causes of action for: (1) Fraud in the Inducement; (2) Negligent Misrepresentation; (3) Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Unfair Business Practices; and (5) Conversion.
On February 28, 2024, after hearing oral argument, the Court overruled Defendants’ demurrer to the first, second, and fifth causes of action, and sustained the demurer of Defendants to the third and fourth causes of action without leave to amend. (02/28/24 Minute Order.) The Court also denied Defendants’ motion to strike. (02/28/24 Minute Order.)
On May 23, 2024, Defendants filed a joint Answer to the FAC.
On June 25, 2024, this action was reassigned from the Honorable Jill Feeney to the Honorable Michelle C. Kim sitting in Department 78 at Stanley Mosk Courthouse effective July 5, 2024.
On July 1, 2024, Patrick C. McGarrigle, Esq. and Michael J. Kenney, Esq. of McGarrigle, Kenney, & Zampiello, APC filed and served the instant unopposed Motion to be Relieved as Counsel for Defendants (“Counsel”).
ANALYSIS
I. Relieved as Counsel
A. 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 Council 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.
B. Discussion
According to the declaration in support of the motion, “Counsel requested that Defendants sign and return a Substitution of Attorney Form to effectuate the change by consent pursuant to CCP 284(a), but same was not completed and returned, nor have the circumstances necessitating the substitution and relief/withdrawal been rectified by the clients.” (See Form MC-052.) According to Attachment 2 of the Form MC-052, Defendants have not made a payment pursuant to the terms of the written retainer agreement since approximately January 2024. (See Form MC-052 at Attachment 2.) Counsel also indicates that further representation of Defendants has been made impossible due to Defendants’ unwillingness to communicate consistently regarding the subject matter of the instant action. (See Form MC-052 at Attachment 2.)
The Court finds that Counsel has set forth a valid reason to warrant withdrawal from representing Defendants. Further, the forms have been served on all clients.
II. Conclusion
Based on the foregoing, the Motion to be Relieved as Counsel filed by Patrick C. McGarrigle, Esq. and Michael J. Kenney, Esq. of McGarrigle, Kenney, & Zampiello, APC is GRANTED. The order will be final upon proof of service of the Final Order. The Court sets a Status Conference re: Proof of Service of the Final Order on September __, 2024, 8:30AM.
Moving Party is ordered to give notice.