Judge: Stephen Morgan, Case: 22AVCV00104, Date: 2023-01-31 Tentative Ruling

Case Number: 22AVCV00104    Hearing Date: January 31, 2023    Dept: A14

Background

 

This is a contractual fraud action. Plaintiff Roy Jensen (“Plaintiff”) alleges that on June 06, 2017, Plaintiff and Defendant Suzanne F. Stenseth (“Defendant”) agreed to purchase real property commonly identified as 44414 Leatherwood Avenue, Lancaster, California 93534 (the “Property”). Plaintiff alleges the following surrounding the purchase of the house:

 

 

Plaintiff further alleges that an Equity Sharing Agreement (the “Agreement”) was prepared memorializing the parties’ agreement, but Defendant refused to sign the Agreement and, instead, insisted on Plaintiff executing a lease to confirm that he was in possession of the property. Plaintiff presents that he signed the lease because Defendant promised that it would not alter the agreement, paid all of the expenses, and occupied the property until Defendant presented him with notices of non-monetary defaults.

 

On February 16, 2022, Plaintiff filed his Complaint alleging five causes of action for: (1) Specific Performance, (2) Breach of Contract, (3) Promissory Estoppel, (4) Fraud, and (5) Declaratory Relief.

 

On May 02, 2022, Defendant filed her Answer.

 

On May 02, 2022, Defendant filed her Cross-Complaint alleging nine causes of action for: (1) Quiet Title, (2) Partition, (3) Promissory Estoppel, (4) Breach of Fiduciary Duty, (5) Unjust Enrichment, (6) Constructive Trust, (7) Declaratory Relief, (8) Breach of Contract, and (9) Money Had and Received.

 

On June 01, 2022, Plaintiff filed his Answer to the Cross-Complaint.

 

On December 20, 2022, Plaintiff’s counsel Jeffrey A. Hacker (“Hacker”) filed a Motion to be Relieved as Counsel for both himself and his firm.

 

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).) The hearing is scheduled for January 31, 2023. As such, an Opposition was due on January 18, 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 –

 

  1. 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). 

 

Hacker has complied with this requirement.

 

  1. 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). 

 

Hacker has complied with this requirement. Hacker presents that there has been an irremediable breakdown of the attorney-client relationship and that the client is non-responsive. Thus, Hacker brings this Motion to be Relieved.

 

  1. 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.) 

 

Hacker declares that he has served the client by mail at the client’s last known address, confirmed by conversation and by email and previous correspondence.

 

  1. 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.

 

Hacker has used the MC-053 form and included the date for the scheduled Case Management Conference, Informal Discovery Conference, and trial.

 

Accordingly, Murphy’s Request to be Relieved as Counsel is GRANTED.

 

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Conclusion

 

Plaintiff’s counsel Jeffrey A. Hacker and the Hacker Law Group’s Motion to be Relieved as Counsel is GRANTED.