Judge: Upinder S. Kalra, Case: 21STCV29892, Date: 2024-04-02 Tentative Ruling

Case Number: 21STCV29892    Hearing Date: April 2, 2024    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   April 2, 2024              

CASE NAME:           James D. Healy, et al. v. Certified Pool Construction, Inc.

CASE NO.:                21STCV29892

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Counsel for Defendant Certified Pool Construction, Inc.

RESPONDING PARTY(S): None as of March 27, 2024

REQUESTED RELIEF:

1.      An order relieving Joseph S. Park as counsel for Defendant Certified Pool Construction, Inc.

TENTATIVE RULING:

1.  Motion to be Relieved as Counsel is CONTINUED to May 3, 2024, at 9:00 a.m.

2.  Counsel to provide proof of service indicating service on an individual authorized to accept service on behalf of Client.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On August 12, 2021, Plaintiffs James D. Healy and Catherine Shultz (Plaintiffs) filed a Complaint against Defendant Certified Pool Construction, Inc. (Defendant) with four causes of action for: (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing, (3) Breach of Implied Warranty, and (4) Negligence.

According to the Complaint, the parties contracted for Defendant to construct a swimming pool, had substantially completed the project, but had construction issues and undisclosed additional costs. Plaintiffs allege that as time went on, additional critical construction flaws manifested.

On October 12, 2022, Defendant filed an Answer.

On November 14, 2023, the parties stipulated to continue trial.

On January 2, 2024, Counsel for Defendant filed the instant motion to be relieved as counsel. As of March 27, 2024, there is no opposition filed.

LEGAL STANDARD:

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other.   (Code of Civ. Proc., § 284, subd. (b).)  An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation.  (See Cal. Rules of Prof. Conduct 3-700(C)(1).)  “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.)   

An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court 3.1362(c)), and MC-053 (Proposed Order) (Cal. Rules of Court 3.1362(e)).   

Further, the requisite forms must be served on the client and all other parties who have appeared in the case.  (Cal. Rules of Court 3.1362(d).)  The court may delay 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.  (Cal. Rules of Court 3.1362(e).) 

ANALYSIS:

Counsel Joseph S. Park (Counsel) moves with withdraw as counsel of record for Defendant Certified Pool Construction, Inc.

In the Declaration of Support of Attorney’s Motion to be Relieved as Counsel, Counsel indicates Client breached its contract for services with Counsel and has been unable or unwilling to cure the breach which has irreparably damaged the attorney-client relationship. Additionally, on the Declaration, it indicates that Counsel has confirmed Defendant’s last known address within the last 30 days by email communication with Client and looking up Client on the California Contractor’s Board website.

Counsel has provided all the required documents under California Rules of Court Rule 3.1362. The Proof of Service attached to the motion indicates that Plaintiffs and Defendant have been served, via mail and email. However, the Proof of Service is addressed to the Client as a corporation, not addressed to an individual authorized to accept service, such as an agent of process, corporate officer, or authorized represtentative.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

1.  Motion to be Relieved as Counsel is CONTINUED to May 3, 2024, at 9:00 a.m.

2.  Counsel to provide proof of service indicating service on an individual authorized to accept service on behalf of Client.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: April 2, 2024                                       __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court