Ahavath Israel Congregation Inc. v. Moshe Kagan, et al.

CASE NO.:  BC704819 (Lead, consolidated with BC704820, BC716114, and 20STCV11695)

 

MOTIONS BY COUNSEL MARK R. STAPKE AND SANDRA GAMBOA TO BE RELIEVED AS COUNSEL FOR (1) JOSE HERRERA AND (2) MINISTERIOS CRISTIANOS GUERREROS DE JEHOVA

 

MOVING PARTY: Mark R. Stapke and Sandra Gamboa (counsel for Jose Herrera and Ministerios Cristianos Guerreros De Jehova)

RESPONDING PARTY(S): Jose Herrera and Melissa Martinez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs brought this derivative action for the benefit of nominal Defendant Ahavath Israel Congregation, Inc (“AIC”). Plaintiffs allege that Defendants have misused AIC’s assets, by among other things, gifting property to Defendant J.E.T.S. Synagogue.   Plaintiffs bring this action for (1) rescission of lease, (2) rescission of deed, (3) money had and received, (4) conversion, (5) breach of fiduciary duty, and (6) unjust enrichment.

Attorneys Mark R. Stapke and Sandra Gamboa now move to be relieved as counsel for Defendants (1) Jose Herrera and (2) Ministerios Cristianos Guerreros De Jehova. Jose Herrera and Melissa Martinez oppose. 

TENTATIVE RULING:

(1) Counsel’s Motion to be Relieved as Counsel of Jose Herrera is GRANTED.

(2) Counsel’s Motion to be Relieved as Counsel for Ministerios Cristianos Guerreros De Jehova is GRANTED.  An OSC re: Striking of Answer of said Defendant is set for 1/29/24 at 8:30 a.m.   If said defendant does not have a duly licensed lawyer formally representing it in this case by that date, this Court may strike its Answer, and enter a default accordingly.

Moving parties to give notice.

DISCUSSION:

Motion to be Relieved as Counsel

A. 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 undue 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.)

B. Analysis

Counsel filed Civil forms MC-051, MC-052, and MC-053 for each Defendant.  Counsel served the clients by FedEx overnight delivery. (See MC-052, ¶ 3; 12/06/2023 Proofs of Service.) The oppositions to the motion confirm that the clients received notice of the motions.

For each Defendant, counsel cites “breaches of attorney’s engagement agreements” which justify withdrawal. (MC-052, ¶ 2.)

Both Herrera and Melissa Martinez—who states she is a “representative” of Ministerios—filed declarations in opposition to the motions.  The clients state that the motions to withdraw came as a “total surprise” to them. (Martinez Decl. at 7: 10; Herrera Decl. at 6: 10.) They contend they have not had the opportunity to retain new counsel and will be prejudiced if the motions to withdrawal are granted. They note the pending February 28, 2024, trial date, and Plaintiffs’ pending motion for summary adjudication set to be heard on January 28, 2024. 

This Court finds that neither of these defendants has adequately demonstrated that they would be unduly prejudiced by the granting of these motions, as the pending trial date is still two months away.  There is nothing complex about this particular case in that there still is sufficient time for a new attorney to be retained and be prepared for the upcoming trial.  

(1) Counsel’s Motion to be Relieved as Counsel of Jose Herrera is GRANTED.

(2) Counsel’s Motion to be Relieved as Counsel for Ministerios Cristianos Guerreros De Jehova is GRANTED.  An OSC re: Striking of Answer of said Defendant is set for 1/29/24 at 8:30 a.m.   If said defendant does not have a duly licensed lawyer formally representing it in this case by that date, this Court may strike its Answer, and enter a default accordingly.

Moving parties to give notice.

IT IS SO ORDERED.

Dated:   January 2, 2024 ___________________________________