Judge: Peter A. Hernandez, Case: 19PSCV00304, Date: 2023-11-28 Tentative Ruling

Case Number: 19PSCV00304    Hearing Date: November 28, 2023    Dept: K

1.-5. The hearing on Counsel for Defendants Yue Zhang’s, Hua Guo’s, Steven Qin’s, Prime Investment International, Inc.’s and University Campus Hotel, LLC’s (i.e., Ecoff Campain Tilles & Kay, LLP) Motions to be Relieved as Counsel is CONTINUED to December 1, 2023 at 9:00 a.m.

6. Counsel for Defendant University Campus Hotel Fund, L.P.’s (i.e., Ecoff Campain Tilles

& Kay, LLP) Motion to be Relieved as Counsel is GRANTED, effective upon the filing of

a proof of service showing service of the signed order upon the Client at the Client’s last

known address. On December 1, 2023 at 9:00 a.m., the court will set an Order to Show Cause Re: Representation of L.P.

7. Counsel for Defendant American Everglow Regional Center, LLC’s (i.e., Ecoff Campain

Tilles & Kay, LLP) Motion to be Relieved as Counsel is GRANTED, effective upon the

filing of a proof of service showing service of the signed order upon the Client at the

Client’s last known address. On December 1, 2023 at 9:00 a.m., the court will set an Order to Show Cause Re: Representation of L.L.P.

Background[1]

Plaintiffs Miao Zhang (“M. Zhang” or “Plaintiff”) alleges as follows:

Defendants targeted Plaintiff and other foreign investors into contributing a minimum of $500,000.00 each as part of the EB-5 visa program towards the construction of an upscale hotel and restaurant complex near the University of California, Riverside (“Project”). The Project, which started in approximately 2014, is still in the construction phase. Defendants informed Plaintiff that there is no money left to continue with the construction of the Project. Plaintiff has not received any return on his investment and his EB-5 immigration applications are still pending. 

On January 13, 2020, Plaintiff, along with another individual whose claims were subsequently dismissed, filed a Second Amended Complaint, asserting causes of action against Defendants American Everglow Regional Center, LLC (“American Everglow”), University Campus Hotel Fund, L.P. (“UCHF”), University Campus Hotel, LLC (“Hotel”), Prime Investment International, Inc. (“Prime”), Hua Guo (“Guo”), Linda Lau (“Lau”), Steven Qin (“Qin”), Yue Zhang (“Y. Zhang”) and Does 1-100 for:

1.                  Breach of Fiduciary Duty

2.                  (Deleted)

3.                  Fraud

4.                  Fraudulent Concealment

5.                  Conversion

6.                  Money Had and Received

7.                  Unfair Business Practices (Cal. Bus. & Prof. Code § 17200, et seq.)

On July 22, 2021, Zhu dismissed his claims, without prejudice.

On September 16, 2022, M. Zhang dismissed Lau, with prejudice.

An Order to Show Cuse Re: Why the Matter Should Not be Dismissed is set for November 28, 2023 was continued to December 1, 2023 at 9:00 a.m.

Discussion

Ecoff Campaign Tilles & Kay, LLP (“Firm”) seeks to be relieved as counsel of record for Y. Zhang, Guo, Qin, Prime, Hotel, UCHF and American Everglow.

At the outset, the court notes that there is a notice deficiency with respect to the motions pertaining to Zhang, Guo, Qin, Prime and Hotel (see footnote); accordingly, the hearing on Motions #1-#5 is continued to December 1, 2023 at 9:00 a.m. Counsel is to provide California Rule of Court (“CRC”) Rule 3.1362 compliant notice forthwith of the new hearing date.  A new date may be set on December 1, 2023.

The court will proceed to review Motions #6 and #7 (i.e., pertaining to UCHF and American Everglow [together, “Clients”]) on the merits, as follows:

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.)

CRC Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure § 284(2) is brought instead of filing a consent under section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion, the declaration, and the proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). 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.

Attorney Kevin Kay (“Kay”) represents Clients have breached the terms of the attorney-fee agreement by failing to honor the payment obligations under the fee agreement, despite counsel’s repeated requests.

Kay states that he has served the Clients by mail at the Clients’ last known address(es) with copies of the motion papers served with this declaration and that he has confirmed, within the past 30 days, that the address(es) is/are current, via telephone.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above have been sufficiently met.

Accordingly, Motions #6 and #7 are granted, effective upon the filing of proofs of service showing service of the respective signed orders upon the Clients at the Clients’ last known address(es).

The court will set an Order to Show Cause Re: Representation of L.P. and L.L.C. date on December 1, 2023 at 9:00 a.m.