Judge: Upinder S. Kalra, Case: BC683554, Date: 2024-08-26 Tentative Ruling
Case Number: BC683554 Hearing Date: August 26, 2024 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: August
26, 2024
CASE NAME: John
Dian Lei v. Shan Shen, et al.
CASE NO.: BC683554
MOTION
TO BE RELIEVED AS COUNSEL
MOVING PARTY: Philip
W. Boesch, Jr., d/b/a The Boesch Law Group
RESPONDING PARTY(S): None as of August 20, 2024
REQUESTED RELIEF:
1. An
Order relieving counsel from representing Plaintiff Joan Huang.
TENTATIVE RULING:
1.
Counsel
shall serve on all parties and submit with the court a Proposed Order (MC-053)
within 14 days of this ruling;
2. Motion to be Relieved as
Counsel is GRANTED effective upon filing proof of service of the signed Order
(MC-053) upon all parties.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On November 14, 2017, John Dian Lei (“Plaintiff”) filed a
Complaint against Defendants Shan Shen, Fa Chan Chuong, Joan Huang, 1804
Bannister, LLC, Bannis Corporation and Does 1 through 10. The complaint alleged
19 causes of action: (1) Battery; (2) Intentional Infliction of Emotional
Distress, (3) Negligence, (4) Intentional Misrepresentation, (5) Negligent
Misrepresentation, (6) Concealment, (7) Civil Conspiracy, (8) Breach of
Fiduciary Duty, (9) Abuse of Control, (10) Corporate Waste, (11) Unjust Enrichment,
(12) Breach of Contract, (13) Common Count: Goods And Services Rendered, (14)
Common Count: Money Had and Received, (15) Common Count: Open Book, (16)
Trespass to Chattel, (17) Conversion, (18) Alter Ego, and (19) Request for
Preliminary Injunction. The complaint alleges that the Plaintiff grew Jujube
and Lychee trees on the Subject Property and was a majority shareholder of
Bannis. Plaintiff later entered into a lease agreement with Zhu, which allowed
the cultivation of the trees. The complaint further alleges that the Defendants
conspired to defraud the Plaintiff, specifically to take control of
Bannis.
On December 18, 2017, Defendant 1804 Bannister, LLC filed a
Cross-Complaint.
On April 6, 2018, Defendant Joan Huang filed an
Answer.
On June 22, 2018, Plaintiff filed a Second Amended
Complaint.
On December 20, 2018, Joan Huang, Defendant in matter No.
BC683554, filed a complaint against Defendant Shan Shen, 1804 Bannister, LLC,
Fung Liu, a.k.a. John Dian Lei as well as Bannis Corporation – as a nominal
defendant. This is Case No. 18PSCV00205.
On February 14, 2019, a Notice of Related Case indicated
that matter BC683554 is related to case No. 18PSCV00205.
On May 24, 2019, Defendant Bannister filed a Demurrer
without a Motion to Strike.
On October 17,
2019, Plaintiff filed an Amended Complaint.
On January 8,
2020, Plaintiff filed an Answer.
On January 17,
2020, Defendant Bannister filed a Demurrer without Motion to Strike.
On February 28,
2020, Defendant Shen filed a Demurrer without a Motion to Strike.
On November 13,
2020, Defendant Bannister and Shen filed an Answer.
On July 23,
2021, Plaintiff filed an Amendment to Complaint, Fictious/Incorrect Name,
naming Doe 1 as ABC Green Farm, Inc.
On April 22,
2022, Defendant Bannister filed a Motion for Leave to Amend
Cross-Complaint.
On September 22,
2022, Plaintiff Huang filed a Motion for Leave to file a Second Amended
Complaint which the court GRANTED.
On November 16, 2022, Plaintiffs in Intervention filed a
First Amended Complaint in Intervention.
On November 16, 2022, Plaintiffs in Intervention filed a
Motion for Summary Adjudication which the court DENIED.
On December 9, 2022, Defendant Fung Liu filed an Answer
to the First Amended Complaint in Intervention.
On December 16, 2022, Plaintiff filed a Third Amended
Complaint.
On January 13, 2023, Defendant Fung Liu filed an Answer to
the Third Amended Complaint.
On January 17, 2023, Defendants 1804 Bannister LLC and Shan
Shen filed an Answer to the Third Amended Complaint.
On January 17, 2023, Defendants 1804 Bannister LLC and Shan
Shen filed an Answer to the First Amended Complaint in Intervention.
On February 27, 2023, Plaintiffs in Intervention filed a
fictitious name amendment correcting DOE 1 to ABC Green Farm, Inc.
On September 19, 2023, the court entered judgment after
court trial for defendant Shan Shen.
On October 9, 2023, Plaintiff John Dian Lei filed a Notice
of Appeal.
On June 25, 2024, Counsel for Plaintiff Joan Huang filed the
instant motion to be relieved as counsel.
On August 6, 2024, Counsel moved ex parte to advance the hearing date on the motion to be relieved
as counsel which the court GRANTED.
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 moves to be relieved because of irreconcilable
differences and breakdown in communication with the client. (Attorney
Declaration In Support of Motion to be Relieved as Counsel.) Further, Counsel
indicates they have tried to resolve these differences without avail which
impedes the relationship and makes it impossible to proceed with the
representation. (Ibid.) Counsel
confirmed the client’s address by conversation within the last 30 days from
filing the motion. Counsel also served notice of the ex parte ruling to advance the hearing date on all parties,
including the client. Counsel served a courtesy copy to the client via e-mail,
too.
However, Counsel did not provide a proposed order (MC-053). Still,
Counsel substantially complied with the California Rules of Court and has
consistently served requisite documents on all parties and on client.
Therefore, the court will provide Counsel with the opportunity to serve on all
parties and submit to the court the requisite proposed order (MC-053).
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.
Counsel
shall serve on all parties and submit with the court a Proposed Order (MC-053) within
14 days of this ruling;
2. Motion to be Relieved as
Counsel is GRANTED effective upon filing proof of service of the signed Order
(MC-053) upon all parties.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: August 26, 2024 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court