Judge Randy Rhodes, Case 19CHCV00876 2022-12-21 Tentative Ruling

Judge: Randy Rhodes, Case: 19CHCV00876, Date: 2022-12-21 Tentative Ruling

Case Number: 19CHCV00876 Hearing Date: December 21, 2022 Dept: F51

Dept. F-51

Date: 12/21/22

Case #19CHCV00876

MOTION TO BE RELIEVED AS COUNSEL

Motion filed: 10/18/22

MOVING ATTORNEY: Selim Mounedji

CLIENT: Defendant/Cross-Complainant Splash-Toys SAS, a French company (“Defendant”)

OPPOSING PARTY: Plaintiffs MGA Entertainment, Inc., a California corporation; and MGA Entertainment (HK) Ltd., a Hong Kong limited company (collectively, “Plaintiffs”)

NOTICE: OK

RELIEF REQUESTED: An order relieving Selim Mounedji as counsel for defendant/cross-complainant Splash-Toys SAS.

TENTATIVE RULING: The motion is denied without prejudice.

BACKGROUND

On 10/18/22, Counsel filed the instant motion to be relieved as counsel, stating that the French Bankruptcy Court ordered a judicial liquidation of the company and for Defendant to abandon its claims. (Decl. of Selim Mounedji, ¶ 2.) Counsel asserts that he therefore has no further authority to represent Defendant. (Ibid.)

On 12/8/22, Plaintiffs filed their opposition. On 12/14/22, Defendant filed its reply.

ANALYSIS

Legal Standard

In a civil action, an attorney may move to be relieved as counsel at any time during the proceedings after giving notice to his client. (Code Civ. Proc. § 284.) The moving attorney shall file with his motion: (1) a notice of the motion, directed to the client using Judicial Council form MC-051; (2) a declaration in support of the motion using Judicial Council form MC-052; and (3) a proposed order granting the motion; all to be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362.) If the notice is served on the client by mail, the motion must also be supported by a declaration “stating facts showing that either: (A) The service address is the current residence or business address of the client; or (B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved..” (Id., subd. (d)(1).)

In his declaration, the moving attorney is required to state “in general terms, and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).” (Id., subd. (c).) The client must be provided no less than five days’ notice before hearing on the motion. An attorney may withdraw from a case when it can be accomplished without undue prejudice to the client’s interests. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) On the other hand, if the attorney withdraws at a critical point in the action, thereby prejudicing his client, he has violated his ethical duties. (Ibid.)

The opposing party in the action may oppose a motion to be relieved as counsel. (See, e.g., Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128.) Prejudice is the only ground that can be asserted in an opposition to a motion to withdraw. (Younger, Expert Series: California Motions § 17:33 (2021–2022 ed.).)

Prejudice

The next hearings in this action are (1) a status conference and (2) an OSC re: Bankruptcy Status, both scheduled for 1/24/23. Therefore, counsel’s withdrawal does not raise the risk of unduly prejudicing his client.

Plaintiffs may only oppose the motion on the ground that they would be prejudiced by counsel’s withdrawal from representing Defendant. (Younger, Expert Series: California Motions § 17:33 (2021–2022 ed.).) In determining whether the motion poses a risk of prejudicing the opposing party, the Court may consider the amount of notice given, the amount of time already committed to the representation, costs incurred and future costs to retain new counsel, and whether the withdrawal would delay a pending trial or hearing. (O'Connor's California Practice – Civil Pretrial Ch. 2-B § 5 (2022 ed.).)

Here, Plaintiffs argue in opposition that the instant motion is procedurally defective in various ways, and “that this litigation will stall if [Defendant’s] ostensibly abandoned claims remain in the lawsuit without any legal representation to move them forward.” (Defs.’ Opp., 2:8–10.) As Defendant observes, this statement alone “advances no argument showing that it would be unduly prejudiced by [Defendant’s] abandonment of this lawsuit and withdrawal of its counsel.” (Def.’s Reply, 4:24–25.)

Accordingly, the Court finds that the instant motion does not raise the risk of unduly prejudicing either Defendant or Plaintiffs.

Declaration

Here, Defendant’s attorney Selim Mounedji filed and served this motion to be relieved as counsel on 10/18/22. Counsel properly filed an accompanying notice of the motion using MC-051, a declaration in support of his motion using form MC-052, and a proposed order granting the motion.

In his MC-052 declaration, counsel states that he no longer has the authority to represent Defendant, following the judicial liquidation ordered by the French Bankruptcy Court. (Mounedji Decl., ¶ 2.) As Plaintiffs observe, “counsel’s declaration does not indicate whether counsel has sought consent from his client,” as required under the California Rules of Court, rule 3.1362(c). (Pls.’ Opp., 1:21.) Counsel argues in reply that Defendant did not contest the French Bankruptcy Court’s order for counsel to withdraw from the action, seemingly arguing that Defendant consented to the withdrawal. (Def.’s Reply, 4:20–21 (“the decision was not contested, and the demand that counsel abandons and withdraws from this action has been communicated by SPLASH-TOYS, through regular and usual channels.”)

In the event that counsel purports to allege that he obtained Defendant’s consent to withdraw from representation, the instant motion is improperly brought. Counsel may instead consider properly filing a client consent to withdrawal under Code of Civil Procedure section 284, subdivision (1).

Service

Counsel states that he served his client by mail, and has declared that the client’s mailing address was verified by telephone. (Mounedji Decl., ¶ 3b.) However, counsel’s proofs of service show that the requisite documents were served only on the Plaintiff’s attorneys on 10/18/22, with no mention of service on the client. (Cal. Rules of Court, rule 3.1362.)

Without any proof of notice to Defendant under CRC 3.1362(e), counsel’s motion to be relieved is denied.

CONCLUSION

As the Court finds that counsel’s motion is procedurally deficient, it need not address the parties’ additional arguments regarding jurisdiction and dismissal.

Accordingly, the statutory requirements for the motion have not been satisfied, and counsel’s motion to be relieved as counsel for Defendant is DENIED without prejudice.