Judge: Upinder S. Kalra, Case: 23STCV02557, Date: 2025-01-03 Tentative Ruling

Case Number: 23STCV02557    Hearing Date: January 3, 2025    Dept: 51

Tentative Ruling

 

Judge Upinder S. Kalra, Department 51

 

HEARING DATE:   January 3, 2025                                              

 

CASE NAME:           James F. Barger v. Burke Eiteljorg

 

CASE NO.:                23STCV02557

 

MOTION TO BE RELIEVED AS COUNSEL

 

MOVING PARTY:  Mark Brutzkus and Alexander Manglinong of Stubbs Alderton & Markiles, LLP

 

RESPONDING PARTY(S): None as of December 30, 2024[1]

 

REQUESTED RELIEF:

 

1.      An Order Relieving Mark Brutzkus and Alexander Manglinong of Stubbs Alderton & Markiles, LLP as counsel for Defendant Burke Eiteljorg.

TENTATIVE RULING:

 

1.      Motion to be Relieved as Counsel is GRANTED;

2.      The court sets an Order to Show Cause re: Status of New Counsel for Defendant for February 14, 2025 at 9:30 a.m.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

 

On February 6, 2023, Plaintiff James F. Barger (Plaintiff) filed a Complaint against Defendant Burke Eiteljorg (Defendant).  Defendant demurrered to the Complaint, which the court sustained with leave to amend as to the first cause of action for Breach of Guaranty and overruled as to the second cause of action for Fraud on July 27, 2023.  

 

Plaintiff filed a First Amended Complaint (FAC) On August 9, 2023. The FAC has two causes of action for: (1) Breach of Guaranty, and (2) Fraud. 

 

The FAC alleges that, at Defendant’s request, Plaintiff loaned $250,000 (the Loan) to an entity named Spring Mill Coal, LLC (Spring Mill) in connection with a potential investment opportunity to acquire ownership interests in another company, Central Utility Coal Co., Inc. (Central Utility), which entity owned real property that could be used for profitable coal production. The FAC alleges that Defendant memorialized the Loan in a convertible promissory note. Defendant allegedly agreed to personally guaranty the Loan (the Guaranty). Plaintiff alleges that the acquisition of Central Utility did not happen, Defendant has not repaid the Loan since September 2012, and Defendant has failed to honor the Guaranty. 

 

On September 25, 2023, Defendant Burke Eiteljorg filed a Demurrer to the FAC which was SUSTAINED without leave to amend.

 

On November 2, 2023, Defendant filed an Answer.

 

On November 15, 2024, Defendant’s Counsel (Counsel) filed the instant Motion to be Relieved as Counsel.

 

On December 13, 2024, Counsel moved ex parte to advance the hearing on their Motion to be Relieved as Counsel which the court GRANTED. Counsel gave notice of the ruling on December 17, 2024.

 

On December 20, 2024, Plaintiff filed a memorandum concerning Counsel’s Motion to be Relieved.

 

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 requests an Order relieving them as counsel for Defendant because there has been a breakdown in communication. Plaintiff does not oppose the motion but requests the court limit how long Defendant can obtain new counsel due to the upcoming trial date. Defendant has not filed an opposition.

 

Counsel has provided all the required documents under California Rules of Court Rule 3.1362. Counsel has also served Defendant with this motion and the Notice of Ruling advancing the hearing date via U.S. Mail and email.

 

Accordingly, the court GRANTS the Motion to be Relieved as Counsel.  

 

CONCLUSION:

 

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

 

1.      Motion to be Relieved as Counsel is GRANTED effective upon proof of service of the order granting the motion;

2.      The court sets an Order to Show Cause re: Status of New Counsel for Defendant for February 14, 2025 at 9:30 a.m.

Moving party is to give notice.

 

IT IS SO ORDERED.

 

Dated:             January 3, 2025                       __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court

 


[1] Plaintiff filed a memorandum concerning the motion but is not opposing it.