Judge: Stephen Morgan, Case: 21AVCV00773, Date: 2023-04-11 Tentative Ruling
Case Number: 21AVCV00773 Hearing Date: April 11, 2023 Dept: A14
Background
This is a contractual fraud action. Plaintiff Jeffrey C. Brizes (“Plaintiff”) alleges that Defendants MDM Architects (“MDM”), Myrle McLernon (“McLernon”), McLernon Architecture Group, Inc. (“McLernon Architecture Group”), Myrle D. McLernon and Christine B. McLernon Family Trust (“McLernon Family Trust”) entered into several contracts with Plaintiff that included compensation (June 11, 2018 – agreement between MDM, McLernon, and Plaintiff for “Additional Services” at a rate of $150/hr; May 24, 2018 – agreement between MDM and Plaintiff for Whispering Wind/Sierra Creek Apartments with compensation to be 10% of contract price; and May 24, 2018 – agreement between MDM and Plaintiff for K2 Campus Holding, LLC with compensation to be 10% of contract price), that the work under the contracts began to increase, and yet Plaintiff was not paid. Plaintiff further alleges that by August 01, 2019, it became apparent to him that Defendants were repudiating the agreement made and had no intention of paying Plaintiff.
On September 30, 2021, Plaintiff filed his Complaint alleging three causes of action for: (1) Breach of Contract, (2) Promissory Fraud, and (3) Quantum Merit.
On December 01, 2021, Defendants filed their Answer.
On December 03, 2021, Defendants filed a Cross-Complaint against Plaintiff.
On January 03, 2021, Plaintiff filed an Answer to Defendants’ Cross-Complaint.
On November 14, 2022, Plaintiff’s counsel, Pat Murphy (“Murphy”) filed a Motion to be Relieved as Counsel. The Motion did not proceed as Plaintiff signed a substitution of attorney on December 14, 2022. Guenther A. Richter (“Richter”) became Plaintiff’s counsel of record.
On March 15, 2023, the Court found the following cases, 21AVCV00773 and 21AVCV00417, are related within the meaning of California Rules of Court, rule 3.300(a). 21AVCV00417 is the lead case.
On March 17, 2023, Richter filed this instant Motion to be Relieved as Counsel.
No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Id.) The hearing on this matter is set for April 11, 2023. March 31, 2023 is a Court holiday. As such, an Opposition was due no later than March 28, 2023. Should an Opposition be filed, it is now untimely.
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Analysis
Standard for Relieving Counsel – An attorney in an action¿may
be changed¿at any time before or after judgment or final determination upon the
order of the court,¿upon the application of either client or attorney, after
notice from one to the other. (Cal. Code Civ. Proc. §284(2)).¿ Rules of Court, Rule
3.1362 requires:
1.¿¿¿¿¿¿¿¿¿Notice
of motion and motion¿to be 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
§284(2), is brought instead of filing a consent under CCP §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 and declaration 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)).
(Rules of Court, Rule 3.1362.)
The motion
should be denied if withdrawal would¿prejudice the client.¿ (Rules Prof.
Conduct, Rule 3-700(A)(2); Weil & Brown, Cal. Prac. Guide: Civ. Pro.
Before Trial, 9:385.2 (2008); 1 Witkin Cal. Pro., Attorneys §72
(2008).)¿ The motion should be denied if it will¿cause undue delay in the
proceeding or cause injustice.¿ (Mandell v. Superior Court, (1977) 67
Cal.App.3d 1, 4.)¿ The determination whether to grant or deny an attorney’s
motion to withdraw as counsel of record 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.¿ (Lempert v. Superior Court¿(2003) 112
Cal.App.4th 1161, 1173.)¿ A breakdown in the attorney-client relationship (or
personality clash) is grounds for withdrawal.¿ (Estate of Falco¿(1987)
188 Cal.App.3d 1004, 1014.) An attorney is not limited to withdrawing from a
case for cause and may withdraw when withdrawal can be accomplished without
undue prejudice to the client.¿ (Ramirez v. Sturdevant¿(1994) 26
Cal. Rptr. 2d 554, 559.)
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Discussion
Application –
i. Notice
A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the¿Notice of Motion and Motion to Be Relieved as Counsel-Civil¿(form MC-051).
Richter has complied with this requirement.
ii. Declaration – CRC Rule 3.1362(c)
The motion to be relieved as counsel must be accompanied by a declaration on the¿Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil¿(form MC-052). The declaration 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).
Richter has complied with this requirement. Richter states the attorney-client relationship has completely broken down. (Decl. Richter No. 2.) Richter goes into further detail stating that the breakdown in the attorney client relationship has occurred as (1) Plaintiff requested the return of all his documents and files, making it impossible for Richter to continue prosecuting this action; (2) Plaintiff owes money to Richter for his work and has no ability or desire to pay; and (3) Plaintiff has become hostile, rude, and insulting towards Richter. (Ibid.) Richter presents that this motion is necessary as Plaintiff has refused to sign a Substitution of Attorney in anticipation of receiving additional services from Richter, which Plaintiff has no intention of paying for. (Ibid.)
iii. Service – CRC Rule 3.1362(d); LASC Local Rule 4.35
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. The notice may be by personal service or mail. 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:
(1)
The service address is the current residence or
business address of the client; or
(2)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.
As used in this rule, "current" means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.
When an attorney files a motion to withdraw as attorney of record for a fiduciary, service must be made by citation. The citation must be served in the manner provided in Code of Civil Procedure sections 415.10 or 415.30. If the fiduciary resides outside of California, service may also be made in the manner provided in Code of Civil Procedure section 415.40. (LASC Local Rules, Rule 4.35.)
Richter has complied by serving parties that have appeared – Defense counsel, Kimberly Rose-McCaslin; counsel in a related action, Abraham Labbad; and Plaintiff. (See Proof of Service.) Plaintiff was personally served with copies of the motion papers filed with the MC-052 declaration. (Decl. Richter at No. 3.)
iv. Order – CRC Rule 3.1362(e)
The proposed order relieving counsel must be prepared on the¿Order Granting Attorney's Motion to Be Relieved as Counsel-Civil¿(form MC-053) and must be lodged with the court with the moving papers. The order 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. 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. The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.
Richter has complied with this requirement by using the MC-053 form and including the dates for the scheduled Case Management Conference. Richter has also noted that trial has not been set in this action.
Accordingly, Richter’s Request to be Relieved as Counsel is GRANTED.
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Conclusion