Judge: Theresa M. Traber, Case: 20STCV03704, Date: 2023-10-19 Tentative Ruling


Case Number: 20STCV03704    Hearing Date: March 6, 2024    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     March 6, 2024                        TRIAL DATE: April 16, 2024

                                                          

CASE:                         Ryan Suavet, et al. v. DRNK Coffee + Tea Franchising, LLC

 

CASE NO.:                 20STCV03704           

 

MOTION TO BE RELIEVED AS COUNSEL (x2)

 

MOVING PARTY:               Attorneys Jeffrey Riffer, Katherine Kunberger, and Karen Ephraim, Counsel for Defendants (1) DRNK Coffee + Tea Franchising, LLC and (2) Thomas Nariman

 

RESPONDING PARTY(S): Defendants (1) DRNK Coffee + Tea Franchising, LLC; and (2) Thomas Nariman; Declaration filed on behalf of Plaintiffs Ryan Suavet, Laetitia Suavet Vinciguerra, and Think I Got It, LLC

 

CASE HISTORY:

·         01/29/20: Complaint filed.

·         12/10/20: First Amended Complaint filed.

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            This is an action for breach of contract. Plaintiffs allege that Defendants breached a franchise agreement with Plaintiffs to open a coffee shop.

 

Attorneys Jeffrey Riffer, Katherine Kunberger, and Karen Ephraim, Counsel for Defendants DRNK Coffee + Tea Franchising, LLC and Thomas Nariman, move to be relieved as counsel.

           

TENTATIVE RULING:

 

            Attorneys Jeffrey Riffer, Katherine Kunberger, and Karen Ephraim’s Motion to be Relieved as Counsel for Defendant DRNK Coffee + Tea Franchising, LLC is GRANTED.

 

            Attorneys Jeffrey Riffer, Katherine Kunberger, and Karen Ephraim’s Motion to be Relieved as Counsel for Defendant Thomas Nariman is GRANTED.

            This ruling is conditioned on Moving Counsel serving notice of this ruling on all parties within 10 days of this order.

 

The Court, on its own motion, schedules an Order to Show Cause Re: Defendants DRNK and Nariman’s Retention of New Counsel for 8:30 AM on April 9, 2024.

 

DISCUSSION:

 

Attorneys Jeffrey Riffer, Katherine Kunberger, and Karen Ephraim, Counsel for Defendants DRNK Coffee + Tea Franchising, LLC and Thomas Nariman, move to be relieved as counsel.

 

Moving counsel filed all three required forms (MC-051, -052, and -053) as to both Defendants, and included a proof of service as required by California Rules of Court rule 3.1362(d).  Moving counsel’s declaration states that Defendants were served by mail at their last known address, and that their address was confirmed by in-Court testimony. (MC-052 ¶ 3.)

 

In general, an attorney may withdraw with or without cause so long as the withdrawal would not result in undue prejudice to the client’s interest – i.e., counsel cannot withdraw at a critical point in the litigation, because that would prejudice client, but can withdraw otherwise. (Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.) The court has discretion to deny an attorney’s request to withdraw where the withdrawal would work an injustice or cause undue delay in the proceeding, but the court’s discretion in this area is one to be exercised reasonably. (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.)   

 

Here, Phase I of trial in this matter commenced on January 2, 2024, and temporarily adjourned on January 17, 2024. (See January 2, 2024 Minute Order; January 17, 2024 Minute Order.) Trial is currently set to resume on April 16, 2024. (MC-052 ¶ 6b.) The risk of prejudice to Defendants is therefore extremely high, as Defendants face the possibility of being without counsel in the middle of trial. Moving Counsel declares only that there has been an irreparable breakdown in the attorney-client relationship that makes continuation of representation unreasonably difficult. (MC-052 ¶ 2.) Moving Counsel does not describe the circumstances giving rise to this motion in detail, as they claim the matter is privileged and confidential. (Id.) Moving Counsel only states that “one or more of the factual circumstances described in Cal. Rule Prof. Conduct 1.16(b) exist, such that withdrawal is appropriate.” (Id.) This rule permits an attorney to withdraw from representation of a client, subject to approval by the Court, if:

 

(1) the client insists upon presenting a claim or defense in litigation, or asserting a position or making a demand in a non-litigation matter, that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

(2) the client either seeks to pursue a criminal or fraudulent* course of conduct or has used the lawyer’s services to advance a course of conduct that the lawyer reasonably believes* was a crime or fraud;

 

(3) the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent;*

 

(4) the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;

 

(5) the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable* warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation;

 

(6) the client knowingly* and freely assents to termination of the representation;

 

(7) the inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;

 

(8) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;

 

(9) a continuation of the representation is likely to result in a violation of these rules or the State Bar Act; or

 

(10) the lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.

 

(Cal. R. Prof. Conduct Rule 1.16(b).) As this recitation demonstrates, Rule 1.16(b) describes a broad array of circumstances permitting an attorney to withdraw from representation. Moving Counsel’s nonspecific citation to this rule therefore offers little insight as to the basis of this motion.

 

Defendants, having retained temporary counsel to oppose these motions, argue that the motions should be denied because there is no actual breakdown in the attorney-client relationship. This argument is plainly belied by the mere existence of these motions. If the attorney-client relationship were healthy, Moving Counsel and Defendants would not be in this antagonistic position.

 

Defendants also argue that Moving Counsel’s perfunctory explanation is insufficient to support withdrawal. Defendants principally rely on Manfredi & Levine v. Superior Court (Barles), a 1998 appellate opinion from the Second District which affirmed the trial court’s rejection of a motion by the plaintiffs’ counsel to withdraw based on an unspecified conflict. (Manfredi & Levine v. Superior Court (Barles) (1998) 66 Cal.App.4th 1128, 1130-31.) However, as Moving Counsel argues in reply, Manfredi is expressly based on the finding by both the trial court and the Court of Appeal that the moving counsel had employed “every delaying tactic known to humankind,” which gave the trial court good cause to doubt moving counsel’s sincerity. (Id., at 1133-34.) Defendants also state that they are virtually certain that they would be unable to secure replacement counsel, and their defeat on both Plaintiffs’ claims and their cross-claims would be all but guaranteed. (See Declaration of Thomas Nariman ISO Opp. ¶¶ 5-6.)

 

Here, however, Moving Counsel contends that they have given the Court no cause to doubt their sincerity or good faith. Moving Counsel also state that further developments since these motions were filed have established an actual conflict of interest between themselves and Defendants concerning matters currently before the Court. (Supplemental Declaration of Jeffrey Riffer ISO Reply ¶¶ 11-13.) In making this argument, Moving Counsel draws comparisons to key cases discussed—and ultimately distinguished—by Manfredi to show that withdrawal should be permitted. The Court of Appeal expressly stated in Aceves v. Superior Court that “where the court accept[s] the good faith of counsel’s representations, the court should find the conflict sufficiently established and permit withdrawal.” (Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 592, citing Uhl v. Municipal Court (1974) 37 Cal.App.3d 526, 527-28 and Leversen v. Superior Court (1983) 34 Cal.3d 530, 539.) Uhl likewise affirmed withdrawal by a public defender before trial based on a conflict between the defendant and another client represented by the public defender where no further details were provided. (Uhl, supra, 37 Cal.App.3d at 535.) Further, in Leversen, our Supreme Court permitted a public defender to withdraw mid-trial when information acquired during representation created a conflict of interest concerning one of the defendants and a defense witness who was identified as an uncharged co-defendant. (Leversen, supra, 23 Cal.3d at 539-540.) Leversen is particularly instructive in its observation that the defendant “was entitled to ‘the undivided loyalty and untrammeled assistance of counsel of his own choice,’ free of any reservations or irresolution” arising from a conflict of interest, in spite of the risk of prejudice stemming from the loss of counsel mid-trial. (Id. at 540.) That logic is no less sound in the civil context than it is in a criminal proceeding.  

 

The Court also observes that Plaintiffs have objected to permitting Moving Counsel from withdrawing because doing so would delay the pending trial and thereby severely prejudice Plaintiffs. Although Plaintiffs, by their own admission, do not have standing to contest this motion, the Court makes note of Plaintiffs’ legitimate interest in proceeding to trial on the date set. Moving Counsel is also correct that, whatever the history of this case, these attorneys, as counsel for Defendants DRNK and Nariman, have given the Court no basis to doubt their honesty. Thus, even considering both Plaintiffs’ interests in proceeding to trial and Defendants’ equally legitimate interest in having representation at that trial, existing precedent compels the Court to accept the representations of Moving Counsel that an actual conflict of interest has arisen that requires withdrawal.

 

//

 

CONCLUSION:

 

            Accordingly, Attorneys Jeffrey Riffer, Katherine Kunberger, and Karen Ephraim’s Motion to be Relieved as Counsel for Defendant DRNK Coffee + Tea Franchising, LLC is GRANTED.

 

            Attorneys Jeffrey Riffer, Katherine Kunberger, and Karen Ephraim’s Motion to be Relieved as Counsel for Defendant Thomas Nariman is GRANTED.

 

            This ruling is conditioned on Moving Counsel serving notice of this ruling on all parties within 10 days of this order.

 

The Court, on its own motion, schedules an Order to Show Cause Re: Defendants DRNK and Nariman’s Retention of New Counsel for 8:30 AM on April 9, 2024.

 

IT IS SO ORDERED.

 

Dated: March 6, 2024                         ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

 


            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.