Judge: Stephanie M. Bowick, Case: 23STCV16300, Date: 2024-11-27 Tentative Ruling
DEPARTMENT 19 LAW AND MOTION RULINGS
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Case Number: 23STCV16300 Hearing Date: November 27, 2024 Dept: 19
Counsel for Defendant 7040 Van Nuys Partnership, LLC’s Motion to be Relieved as Counsel is GRANTED.
However, the Court cannot sign the proposed order filed on October 29, 2024, because Sections 2 through 9 are blank.
Thus, within five (5) court days, Counsel is ordered to file and serve a complete proposed judgment that checks box 5(a).
Counsel is not relieved as counsel until the revised proposed order is signed by the Court and proof of service of the signed order on Client is filed with the court.
The Court sets a Non-Appearance Case Review Re: Revised Proposed Order for December 6, 2024, at 10:30 A.M. in Department 19 of the Stanley Mosk Courthouse.
In California, a corporation or business entity, such as Defendant 7040 Van Nuys Partnership, LLC, cannot represent itself (through an owner, corporate employee, director or officer) and must retain the services of a licensed attorney in order to defend this action. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145-1146 (citing Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101–1103).)
As such, the Court sets a Status Conference Re: Representation for Defendant 7040 Van Nuys Partnership, LLC in Department 19 of the Stanley Mosk Courthouse on February 26, 2025, at 8:30 a.m.
Movant to give notice to all parties.
This action arises out of alleged
breach of contract. In the Verified Complaint (the “Complaint”), Plaintiff Axos
Bank (“Plaintiff”) brings suit against Defendants 7040 Van Nuys Partnership, LLC, Jing Ning, Abraham Iny,
and National Glass, LLC (collectively, “Defendants”) alleging the following
causes of action:
1.
Judicial Foreclosure Of Deeds Of Trust And
Security Agreements Based On Breaches Thereof, And Determination And Recovery Of
Deficiency Under Contractual Guaranty Pursuant to C.C.P. § 726(b) and § 580a;
2.
Specific Performance Of Assignment Of Rents,
Appointment Of Receiver And Injunctive Relief; and
3. Recovery Of Possession Of Personal Property.
On December 13, 2023., Defendant National Glass, LLC was dismissed without prejudice.
On February 13, 2024, in Department 82, the Court granted Plaintiff’s unopposed Motion for Appointment of Receiver and for Preliminary Injunction and appointed a receiver.
On October 29, 2024, Victor Sahn of Greenspoon Marder, LLP (“Counsel” or “Movant”), Counsel for Defendant 7040 Van Nuys Partnership, LLC (hereafter, “Client”), filed the instant MC-051 “Notice of Motion and Motion to be Relieved as Counsel” (the “Motion”), MC-052 “Declaration in Support of Attorney’s Motion to be Relieved as Counsel” (the “Declaration”) and MC-053 proposed order (the “Proposed Order”).
DISCUSSION
A. Procedural Requirements
California Rules of Court, rule
3.1362 prescribes the following requirements of a movant seeking to be relieved
as counsel:
1.
The notice of motion and motion must be directed
to the client and must use form MC-051 (“Notice of Motion and Motion to Be
Relieved as Counsel-Civil”);
2.
The motion must be accompanied by a declaration
using form MC-052 (“Declaration in Support of Attorney's Motion to Be Relieved
as Counsel-Civil”) and “must 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).”;
3.
A proposed order must be lodged with the court
along with the moving papers and must use form MC-053 (“Order Granting
Attorney's Motion to Be Relieved as Counsel-Civil”) and “must specify all
hearing dates scheduled in the action or proceeding, including the date of
trial, if known. If no hearing date is presently scheduled, the court may set
one and specify the date in the order.”;
4.
“The notice of motion and motion, the
declaration, and the proposed order must be served on the client and on all
other parties who have appeared in the case” either by personal service,
electronic service, or by mail.
(Cal. R. Ct., 3.1362 (a) – (e).)
“If the notice is
served on the client by mail under Code of Civil Procedure section 1013, it
must be accompanied 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. at 3.1362(d).)
“Current” means that “the address was confirmed within 30 days before the filing of the motion to be relieved.” (Id.) “Merely demonstrating that the notice was sent to the client's last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current.” (Id.) “If the service is by mail, Code of Civil Procedure section 1011(b) applies.” (Id.)
Here, Counsel satisfies the requirements of California Rules of Court, rule 3.1362. Counsel submits the Motion, Declaration, and Proposed Order using the mandatory Judicial Council forms. The attached proofs of service indicate that the papers were served on Client and all parties who have appeared in the matter by mail and electronic mail and in a manner that satisfies the relevant provisions found in Code of Civil Procedure sections 1013 and 1011(b). (See Declaration, § 3b.) Counsel has confirmed Client’s current address. (Id.)
B. Merits
There are two ways in which an “attorney in an action or special proceeding may be changed at any time before or after judgment or final determination:” (1) when both the client and attorney consent; or (2) when the court orders it upon the client’s or attorney’s application. (Code Civ. Proc., § 284.) The court has sound discretion to permit the withdrawal of an attorney. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Id.)
Withdrawal is generally permitted unless there is a compelling reason to continue the representation. (Heple v. Kluge (1951) 104 Cal.App.2d 461, 462.) There is a compelling reason when the withdrawal would prejudice the client, the other parties in the action, or a third party. (See, e.g., People v. Prince (1968) 268 Cal.App.2d 398, 406; Linn v. Superior Court in and for Los Angeles County (1926) 79 Cal.App. 721, 725.) “Where issues of confidentiality prevent ‘counsel from further disclosure and the court accepts the good faith of counsel's representations, the court should find the conflict sufficiently established and permit withdrawal.’” (Id. (quoting Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 592, citing Uhl v. Municipal Court (1974) 37 Cal.App.3d 526, 527 and Leversen v. Superior Court (1983) 34 Cal.3d 530, 539).)
Here, Counsel attests that withdrawal is warranted on the grounds that (1) Client has not communicated with Counsel for more than one year; (2) the receiver has taken over operations of the property owned by Client since July 2023 when the Receiver was appointed; (3) Client's General Partner is Defendant Abraham Iny, who is presently represented by the law firm of Beitchman & Zekian, P.C.; (4) Client’s other General Partner is Defendant Jing Ning, who is presently represented by James Hill and Priya Sopori of the law firm Greenberg Glusker; (5) Client has not paid Greenspoon Marder's legal bills and has refused to do so in spite of repeated requests and repeated transmission of the unpaid legal bills; and (6) additional reasons which are the subject of the attorney-client privilege. (Declaration at § 2.)
Based on Counsel’s declaration, the Court finds that good cause exists for Counsel’s withdrawal and that such withdrawal will not prejudice Plaintiff or any other party.
Accordingly, the Court GRANTS
Counsel’s Motion to be Relieved as Counsel and will sign the new proposed order
upon receipt.