Judge Ronald F. Frank, Case 20TRCV00950 2023-03-23 Tentative Ruling

Judge: Ronald F. Frank, Case: 20TRCV00950, Date: 2023-03-23 Tentative Ruling

Case Number: 20TRCV00950 Hearing Date: March 23, 2023 Dept: 8

Tentative Ruling¿¿

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HEARING DATE: March 23, 2023

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CASE NUMBER: 20TRCV00950

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CASE NAME: 6232 Manchester, LLC v. Orb Tertius, LLC

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TRIAL DATE: July 10, 2023

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MOTION:¿ (1) Motion to be Relieved as Defense Counsel

(2) Notice of Related Case (NORC)

Tentative Rulings: (1) Motion to be Relieved is GRANTED.

(2) NORC is denied. The allegedly related UD case, no 22TRCV02358, is set for trial on May 8 and is entitled to statutory priority over this civil action under CCP § 1179a.

I. Background

On December 24, 2020, Plaintiff, 6232 Manchester, LLC (“Plaintiff”) filed this action against Defendant, Orb Tertius, LLC. On February 21, 2023, Defendant, Orb Tertius, LLC’s counsel, Kevin T. Kay, Esq (“Kay”) filed the instant Motion to be Relieved as Counsel for Defendants. No opposition was filed. In the allegedly related UD case, Case No. 22IWUD02358, Judge Reinert on March 22, 2023 granted a similar motion by the same defense counsel to withdraw.

Trial in this unlimited civil case is set for July 10, 2023.

II. Legal Standard & Discussion

Code of Civil Procedure § 284 states that “the attorney in an action…may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney…; (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; CRC 3.1362.) The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably. (See Mandell v. Superior (1977) 67 Cal.App.3d 1, 4; Lempert¿v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.)

In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court 3.1362. The motion must be made using mandatory forms: Notice of Motion and Motion to be Relieved as Counsel directed to the client – Civil (MC-051); Declaration “stating in general terms and without compromising the confidentiality of the attorney-client relationship” reasons the motion was brought (MC-052); and a Proposed Order (MC-053). (Ibid.) The forms must be filed and served on all parties who have appeared in the case. (Ibid.)

Here, Defendant’s counsel, Kay, moves the Court to relieve him as attorney of record for Defendant. Kay properly filed a Notice of Motion, Motion to be Relieved as Counsel, Declaration, and Proposed Order in accordance with Cal. Rules of Court 3.1362. On February 21, 2023, all forms for the pending motion were served on Defendants and Plaintiff by email. On February 21, 2023 proof of service for said documents was filed with the Court.

In his declaration he notes that “The client has breached the terms of the attorney-fee agreement by filing to honor the payment obligation under the fee agreement.” Kay notes that he “has made repeated requests that the client honor the terms of the fee agreement but the client has failed to comply.” He further notes that the “failure to make payments as required by a retainer agreement is proper grounds to allow an attorney to withdraw as counsel in the matter.”

Since Defendant’s counsel has complied with all procedural requirements in filing a motion to be relieved as counsel and because the withdrawal would not cause an injustice or undue delay in proceedings, the Court finds that withdrawal of Kevin T. Kay, Esq. as attorney of record for Defendant can be accomplished without undue prejudice to the Defendant’s interests.

III. Conclusion & Order

For the foregoing reasons, Kevin T. Kay Motion to Be Relieved As Counsel is GRANTED and the Order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on Plaintiff and Defendant has been filed with the court.” (Id.)

Moving party is ordered to give notice at both mail and email addresses, and is further ordered to specify in a letter and/or email to his client contact at the defendant company that an LLC cannot represent itself in court so it either must secure new counsel to assist it or else it may suffer significant adverse consequences in the lawsuit.