Judge: Randolph M. Hammock, Case: 20STCV12797, Date: 2023-03-10 Tentative Ruling

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If the interested parties wish to submit on the tentative ruling, they should call the judicial assistant together prior to the date of the scheduled hearing. 


Case Number: 20STCV12797    Hearing Date: March 10, 2023    Dept: 49

Tentative Ruling

 

Judge Randolph M. Hammock, Department 49

 

 

HEARING DATE:     March 10, 2023                                  TRIAL DATE:  November 6, 2023

                                                          

CASE:                         Alexander Vyshetsky, et al. v. Robert Clippinger, et al.

 

CASE NO.:                 20STCV12797

 

 

MOTION TO BE RELIEVED AS COUNSEL

 

MOVING PARTY:               Counsel Jeffrey Rosenfeld (Counsel for Defendant Robert Clippinger and Clippinger Investment Properties)

 

RESPONDING PARTY(S): None

 

CASE HISTORY:

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

There are 26 Plaintiffs consisting of both individuals and other entities. In or around the latter part of 2017, Defendant Robert Clippinger (“Clippinger”) approached Plaintiffs for the purpose of obtaining their investment in the purchase and subsequent development of the real property located at 4730 El Camino Avenue, Carmichael, California, 95608 (the “Property”). The Property consists of a ninety-five (95) unit multi-family community.  In the course of the negotiations with Clippinger, Plaintiffs were represented by FundOpp Capital, Inc. d/b/a “Alpha Investing” (“Alpha”) who acted as the Plaintiffs’ intermediary and/or agent for purposes of the transaction. The primary individual representatives for Alpha are Daniel Cocca (“Cocca”) and Fark Tari (“Tari”).

 

Plaintiffs and Defendant then entered into a written Agreement and collectively invested $985,000, whereby Defendant would manage the property and development project.  Plaintiffs allege that Defendant Clippinger made misrepresentations to Plaintiffs prior to and after executing the contract.  They also allege Defendant breached the contract and his fiduciary duty to Plaintiffs based on his mismanagement of the project and his commingling of project funds.  Defendant eventually sold the Property to a third party for a value purportedly less than its fair value. 

 

Jeffrey Rosenfeld now moves to be relieved as counsel for Defendants Robert Clippinger and Clippinger Investment Properties.[1] The motion is unopposed.

 

TENTATIVE RULING:

 

Counsel’s Motion to be Relieved as Counsel for Robert Clippinger is GRANTED.

 

Counsel’s Motion to be Relieved as Counsel for Clippinger Investment Properties is GRANTED on the condition that Counsel submit a new Order (MC-053) which indicates that the next hearing will be an OSC re; Striking of Answer on April 14, 2023, at 8:30 a.m.  IF DEFENDANT CLIPPINGER INVESTMENT PROPERTIES DOES NOT HAVE A NEW ATTORNEY OF RECORD BY THAT DATE, ITS ANSWER MAY BE STRICKEN AND A DEFAULT ENTERED ACCORDINGLY.

 

            Moving party to give notice, unless waived.

 

DISCUSSION:

 

Motion to be Relieved as Counsel

 

Legal Standard

 

For a motion to be relieved as counsel under CCP section 284, subdivision¿(2), California Rules of Court 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 CCP section 284(2) is brought instead of filing a consent under CCP 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, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to be Relieved as Counsel – Civil form (MC-053)).¿ (Cal. Rules of Court, rule 3.1362.)¿

 

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.)

 

Analysis

 

Counsel filed Civil forms MC-051, MC-052, and MC-053 as to each Defendant. Counsel makes this motion after “client has rendered it unreasonably difficult to carry out the representation effectively,” and has “repeatedly and continuously breached an agreement and obligation as to expenses and fees despite reasonable warning.” (MC-052 ¶ 2.)  Counsel served the moving papers on the clients by mail at the clients’ last known addresses confirmed by email. (Id., Proof of Service.)

 

The court finds the motions are properly granted.  Trial is not scheduled until November 6, 2023, leaving Defendants ample time to retain new counsel.

           

Counsel’s Motion to be Relieved as Counsel for Robert Clippinger is GRANTED.

 

Counsel’s Motion to be Relieved as Counsel for Clippinger Investment Properties is GRANTED on the condition that Counsel submit a new Order (MC-053) which indicates that the next hearing will be an OSC re; Striking of Answer on April 14, 2023, at 8:30 a.m.  IF DEFENDANT CLIPPINGER INVESTMENT PROPERTIES DOES NOT HAVE A NEW ATTORNEY OF RECORD BY THAT DATE, ITS ANSWER MAY BE STRICKEN AND A DEFAULT ENTERED ACCORDINGLY.

 

Moving party to give notice, unless waived. 

 

IT IS SO ORDERED.

 

Dated:   March 10, 2023                                             ___________________________________

                                                                                    Randolph M. Hammock

                                                                                    Judge of the Superior Court

 

Any party may submit on the tentative ruling by contacting the courtroom via email at  Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

 


[1] Counsel’s motion to be relieved as counsel for Defendant Clippinger Investment Properties is set for hearing on March 13, 2023. The court addresses the two motions together.