Judge Robert S. Draper, Case 21STCV42391 2023-05-16 Tentative Ruling

Counsel is to file a corrected MC-053s in advance of the hearing: (1) there should be a separate MC-053 for each Plaintiff ; (2) each MC-053 must list a phone number for Plaintiff; and (3) at Item 7 the full address of the court should be listed, to include the Department number.

Assuming the orders are corrected, the motions to be relieved as counsel of Plaintiffs Tamarin Lindenberg and Sett Management, LLC will be GRANTED. Attorneys Harry Nelson and Jonathan Radke of Nelson Hardiman LLP will be relieved as counsel of record of Plaintiffs Tamarin Lindenberg and Sett Management, LLC upon filing of Proofs of Service of the signed Orders Granting Attorney’s Motion to be Relieved as Counsel (forms MC-053). Proof of service of the signed orders on Plaintiffs must be filed within five court days after the date of this order.

Plaintiffs Tamarin Lindenberg (“Lindenberg”) and Sett Management, LLC (“Sett Management”) (collectively, “Plaintiffs”) allege that in or about 2015, Defendant W. Hamilton Smythe, IV (“Smythe”) approached Lindenberg, an executive management consultant, for help with his businesses. (Compl., ¶¶ 7-9.) Consistent with her expertise, Lindenberg analyzed the businesses, finding their strengths and addressing their weaknesses, with the goal of reorganizing to reduce costs and increase profitability. (Compl., ¶ 9.) The business relationship between Smythe and Lindenberg began with an hourly contract, but as Lindenberg produced results, Lindenberg’s involvement and income increased. (Compl., ¶¶ 10-11.)

In 2017, Smythe decided that Lindenberg’s work was so invaluable that in addition to her fees, he offered her equity ownership through a partnership agreement. (Compl., ¶ 12.) Smythe and Lindenberg agreed that Lindenberg would own, among other things, 100% of Plaintiff Sett Management (a management entity) and 40% of Premier Transportation and Checker Cab. (Compl., ¶ 13.) Lindenberg would have also have 100% decision making authority over Plaintiff Sett Management. (Compl., ¶ 13.) Smythe and Lindenberg memorialized their agreement in an October 2017 partnership agreement. (Compl., ¶ 14; Exhibit A – a copy of that agreement.)

However, things began to go awry in late 2018 when Lindenberg moved from focusing on internal accounting and finance to internal operations. (Compl., ¶ 17.)

“In simple terms, [Lindenberg] uncovered a series of dishonest and illegal business practices by … [Smythe] that placed children in harm’s way.” (Compl., p. 1:22-25.) For example, Smythe had turned a blind eye to the hiring of grossly unqualified drivers, some with serious criminal records. (Compl., ¶ 21.) In May 2018, a driver with a felony conviction inappropriately touched a child on a bus, and when Lindenberg questioned Smythe about that incident, Smythe responded, “Half of these kids live with felons. I’m not worried about it.” (Compl., ¶ 21.)

“Rather than allowing [Lindenberg] to remediate the issues, Smythe was so angered by the discovery of his ‘dirty secrets’ that he launched a campaign of retaliation against Lindenberg of unprecedented fury. Taken in its totality, Smythe’s evil activities -- which included outright theft, slander, and severe infliction of emotional distress – amounted to nothing less than a campaign of personal destruction.” (Compl., pp. 1:24-2:2.)

On April 24, 2023, Attorneys Harry Nelson and Jonathan Radke of Nelson Hardiman LLP (“Counsel”) filed their motion to be relieved as counsel for Plaintiff Lindenberg.

The next scheduled hearings in the case are (1) a Case Management Conference and Order to Show Cause Re: Failure to File Proof of Service on June 5, 2023, and (2) another Motion to be Relieved as Counsel for Plaintiff Sett Management on June 21, 2023.

“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.)

(1) File 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) Submit a declaration stating 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) (made on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel -- Civil form (MC-052));

(3) Serve 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) Lodge a proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to be Relieved as Counsel -- Civil form (MC-053)).

“The question of granting or denying an application of an attorney to withdraw as counsel (Code Civ. Proc., § 284, subd. (2)) is one which lies within the sound discretion of the trial court ‘having in mind whether such withdrawal might work an injustice in the handling of the case.’” (People v. Prince (1968) 268 Cal.App.2d 398, 406 [internal quotations omitted].) The court should also consider whether the attorney’s “withdrawal can be accomplished without undue prejudice to the client’s interests.” (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

A lawyer may withdraw from representing if “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively ….” (Cal. Rules Prof. Conduct, rule 1.16(b)(4).)

Here, Counsel state that there has been a breakdown in the attorney-client relationship between them and Plaintiffs Lindenberg and Sett Management, such that it has become unreasonably difficult for Counsel to effectively carry out representation.

The Court also finds that Counsel has complied with the California Rules of Court, rule 3.1362, by filing required and complete forms. The Court notes that counsel’s moving papers failed to inform Plaintiffs of the Motion to be Relieved as Counsel for Plaintiff Sett Management hearing on June 21, 2023. However, that hearing appears to be error as Counsel is presently moving to be removed as counsel for Sett Management.