Judge: Peter A. Hernandez, Case: 23STCV25565, Date: 2024-12-17 Tentative Ruling

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Case Number: 23STCV25565    Hearing Date: December 17, 2024    Dept: 34

Defendant’s Counsel Brian T. Corrigan’s Motion to be Relieved as Counsel is GRANTED, subject to the filing of a proposed order within five (5) days of this order, and effective upon the filing of proof of service showing service of the signed order.

Background

On October 19, 2023, Plaintiff Megna Grizzly Bear’s Burgers, Inc. (“Plaintiff”) filed a complaint against Defendant Mahmud Ulkarim (“Defendant”) and Does 1-25 arising from an agreement between the parties to invest in a commercial real property located at 2211 Sierra Highway, Acton, CA 93510 alleging causes of action for:

1.           Breach of Contract;

2.           Conversion;

3.           Breach of Fiduciary Duty;

4.           Illegal Loans;

5.           Imposition of Constructive Trust;

6.           Accounting;

7.           Injunctive Relief;

8.           Appointment of a Receiver;

9.           Declaratory Relief; and

10.        Violation of Cal. B&P §17200.

On November 8, 2023, Plaintiff filed a Notice of Lis Pendens regarding the subject property.

On November 5, 2024, Defendant’s counsel, Brian T. Corrigan (“Counsel”), filed: (1) MC-051, Motion to be Relieved as Counsel; (2) MC-052, Declaration; and (3) Proof of Service.

No opposition or other response has been filed. 

Legal Standard

“The 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 upon the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.)

An attorney moving to be relieved as counsel under California Code of Civil Procedure section 284(2) must meet the requirements set out in California Rules of Court, rule 3.1362.

To comply with rule 3.1362, the moving party must submit the following forms: (1) Notice of Motion and Motion to be Relieved as Counsel; (2) Declaration in Support of Attorney's Motion to be Relieved as Counsel; and (3) Order Granting Attorney's Motion to be Relieved as Counsel. (Cal. Rules of Court, rule 3.1362(a), (c), (e).)

The moving party must serve the aforementioned forms on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) Further, when the client is served by mail, the attorney's declaration must show that the client's address was confirmed within the last 30 days and how it was confirmed. (Ibid.) 

Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted.  (People v. Prince (1968) 268 Cal.App.2d 398, 406.)

Discussion

Counsel’s Motion to be Relieved as Counsel complies with the requirements of California Rules of Court, rule 3.1362, in that Counsel provided notice of motion and motion to be relieved as counsel, and declaration in support of the motion to be relieved as counsel. However, Counsel failed to provide a proposed order granting Counsel’s motion.

            The declaration states that Defendant has breached the terms of the firm’s written engagement agreement. (MC-052, ¶ 2.) Additionally, Counsel states that Plaintiff’s counsel had committed to amend the complaint to properly plead Plaintiff’s claims. (Id., ¶ 7.) Counsel contends that Plaintiff’s counsel does not represent Plaintiff but pled the complaint as if they did. (Ibid.) Defendant’s counsel agreed to wait for the amended pleadings in order to respond but no amended pleadings have been filed. (Ibid.)

            The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above have not been sufficiently met in that Counsel failed to provide a proposed order granting Counsel’s motion. Nevertheless, the court grants the requested withdrawal, conditioned upon the filling of a proposed order, and effective upon the filing of proof of service showing service of the signed order.

Conclusion

Defendant’s Counsel Brian T. Corrigan’s Motion to be Relieved as Counsel is GRANTED, subject to the filing of a proposed order within five (5) days of this order, and effective upon the filing of proof of service showing service of the signed order.