Judge: Stephen Morgan, Case: 22AVCV00348, Date: 2023-01-17 Tentative Ruling

Case Number: 22AVCV00348    Hearing Date: January 17, 2023    Dept: A14

Background

This is a breach of contract action. Plaintiff Jose F. Castro, Jr. (“Plainiff”), alleges that on or about February 08, 2021, he and Defendants Spencer Grim (“Grim”) and MRGE Investments, LLC (“MRGE” and collectively “MRGE Defendants”), entered into a written Commercial Property Purchase Agreement and Joint Escrow Instructions (the “Contract”) wherein MRGE Defendants agreed to sell and covey title in a parcel of real property commonly known as 38022 Grant Drive, Palmdale, CA 93552 (the “Property”) in exchange for Plaintiff’s payment of $315,00.00. Plaintiff further alleges that he paid MRGE Defendants the sum of $315,000.00 and, in reliance on the contract, he spent $145,000.00 improving the Property and found a tenant to pay rent from October 01, 2021 through September 30, 2026 at a rate of $2,375.00. Plaintiff presents the following issues that occurred with the contract:  (1) On page 5 of the Contract, at Section 17B(1), the Contract states, in relevant part, that the seller of the Property agrees and is obligated to pay off any encumbrance or lien on the Property; (2) although MRGE is the fee owner of the Property, Grim erroneously identified himself as the seller of the Property in the Contract on page 10; (3) Grim has never held title to the Property in his individual capacity; (4) Plaintiff and MRGE Defendants never intended that Grim, who did not hold title to the Property, would transfer a non-existent ownership interest in the Property to Plaintiff, and (5) Defendant Sallie Ann Spivak (“Spivak”) holds the deed of trust on the property.

On May 16, 2022, Plaintiff filed his Complaint alleging three causes of action for: (1) Breach of Contract, (2) Conversion, and (3) Declaratory Relief.

On July 07, 2022, MRGE Defendants entered default.

On September 12, 2022, the default was vacated through stipulation and MRGE Defendants filed their Answer.

On November 04, 2022, defense counsels Dariush G. Aldi (“Aldi”) and Vernon Nelson (“Nelson”) brought one Motion to be Relieved as Counsel. The Court granted the motion as to Aldi, but denied it as to Nelson due to the lack of a signed declaration on Nelson’s behalf.

On December 07, 2022, Nelson filed a new Motion to be Relieved as Counsel.

On December 27, 2022, Plaintiff filed a Notice of Non-Opposition.

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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). 

Nelson 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). 

Nelson has complied with this requirement. Nelson presents: (1) the relationship of trust and confidence essential to the attorney-client relationship has ceased to exist and irreconcilable differences have risen between the client and attorney, and (2) Nelson is senior counsel for ALDI Law Group and assumed that the Motion to be Relieved would apply to the firm as a whole, so he did not provide a declaration. Thus, Nelson brings this motion to ensure that he is also relieved as counsel for MRGE Defendants.

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.) 

Though Nelson claims that he has served MRGE Defendants have been by mail at their last known address, confirmed by mail, return receipt requested, the Proof of Service states that the Notice of the Motion and Motion to be Relieved as Counsel and its respective Declaration were served via email. Plaintiff has also been served through their respective counsel via email.

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.

Nelson has used the MC-053 form and included the date for the scheduled Informal Discovery Conference (“IDC”) as the next scheduled hearing. However, Nelson has failed to list the date for the scheduled Case Management Conference which is to occur prior to the IDC.

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

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Conclusion