Judge: Peter A. Hernandez, Case: 22PSCV00196, Date: 2023-07-11 Tentative Ruling

Case Number: 22PSCV00196    Hearing Date: July 11, 2023    Dept: K

Counsel for Defendant/Cross-Defendant Keith Davis (Orrick, Herrington & Sutcliffe LLP)’s Motion to be Relieved as Counsel is GRANTED, effective upon the filing of the proof of service showing service of the signed order upon the Client at the Client’s last known address.

Background   

Plaintiff Langer Juice Company, Inc. (“Langer Juice”) alleges as follows:

Langer Juice and Silly Brands, Inc. (“SBI”) entered into a verbal agreement in which it was agreed that SBI hired Langer Juice to perform co-packing and related services to produce a line of children's fruit juice drinks for sale by SBI to buyers in California, Arizona and elsewhere. SBI agreed to pay Langer Juice for this co-packing “within a short but reasonable time” after SBI received payment for its product. SBI asked Langer Juice to permit a line of credit of $150,000. As a course of conduct, Langer Juice floated the purchases of packaging material and did not invoice for those until they became converted into a beverage. Langer Juice accepted this until it had $150,000 of labels in inventory that had non-compliant UPC codes. It was agreed that pricing and invoicing for Langer Juice’s co-packing services would be based on labor, ingredients, and packaging materials. SBI has failed to pay Langer Juice based on its series of invoices for co-packing services. Keith Davis (“Davis”) is SBI’s CEO and a shareholder.

On March 2, 2022, Langer Juice filed a complaint, asserting causes of action against SBI and Davis for:

1.                  Breach of Contract

2.                  Common Counts

On May 4, 2022, SBI filed a cross-complaint, asserting causes of action against Langer Juice, Bruce Langer (“B. Langer”) and David Langer (“D. Langer”) for:

1.                  Breach of Contract—Co-Packing Agreement

2.                  Breach of Implied Duty to Perform with Reasonable Care

3.                  Breach of Implied Covenant of Good Faith and Fair Dealing

4.                  Unjust Enrichment

5.                  Breach of Contract—Operating Agreement

6.                  Breach of Fiduciary Duty

On June 10, 2022, B. Langer and D. Langer filed a cross-complaint, asserting causes of action against SBI and Davis for:

1.                  Breach of Silly Brands Inc. Operating Agreement

2.                  Breach of Fiduciary Duty

The Final Status Conference is set for August 6, 2024. Trial is set for August 20, 2024.

Discussion

Orrick, Herrington & Sutcliffe LLP (“Firm”) seeks to be relieved as counsel of record for Davis (“Client”).

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.)

California Rule of Court (“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 James R. McGuire (“McGuire”) represents that a “breakdown in communication has developed” between Firm and Client which precludes Firm from representing Client in this litigation. McGuire further represents that Firm has unsuccessfully sought to obtain Client’s consent to withdrawal.