Judge: Virginia Keeny, Case: 19STCV32737, Date: 2025-02-18 Tentative Ruling

Case Number: 19STCV32737    Hearing Date: February 18, 2025    Dept: 45

FRANK BACHINSKY, ET AL. V. FOREVER OCEAN CORPORATION, ET AL.

MOTION to be relieved as counsel

Date of Hearing:          February 18, 2025                   Trial Date:       None set

Department:               45                                            Case No.:         19STCV32737

Complaint Filed:            September 13, 2019

Moving Party:             Nathan T. Lowery, counsel of record for Defendants

Responding Party:       None

Notice:                         Proper

BACKGROUND

On September 13, 2019, Plaintiffs Frank Bachinsky and Avalor Capital LLC (“Plaintiffs”) filed a complaint against Defendants Forever Oceans Corporation, a Virginia Corp Corporation, Forever Oceans Corporation, a Delaware Corporation, BV Advisory Partners, LLC, V3M Ventures, LLC, Jason Heckathorn, David Voyticky, and Keith Barksdale (“Defendants”), alleging nine (9) causes of action for various employment and contract claims.

On January 13, 2025, Nathan T. Lowery, counsel of record for Defendants (“Counsel”) filed the instant motion to be relieved as counsel for Defendants. Defendants do not oppose.   

On February 7, 2025, Counsel filed a notice of non-opposition.

[Tentative] Ruling

Nathan T. Lowery’s motion to be relieved as counsel for Defendants is GRANTED.

LEGAL STANDARD

Code of Civil Procedure § 284 states that “the attorney in an action…may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney…; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”  (Code Civ. Proc. § 284; CRC 3.1362.)  The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably.  (See Mandell v. Superior (1977) 67 Cal.App.3d 1, 4; Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.)

In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court, Rule 3.1362.  The motion must be made using mandatory forms:

1.      Notice of Motion and Motion to be Relieved as Counsel directed to the client – (MC-051);

2.      Declaration “stating in general terms and without compromising the confidentiality of the attorney-client relationship” the reasons that the motion was brought (MC-052);

3.      Proposed Order (MC-053).

(Ibid.)  The forms must be timely filed and served on all parties who have appeared in the case.  (Ibid.)  If these documents are served on the client by mail, there must be a declaration stating either that the address where client was served is “the current residence or business address of the client” or “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.”  (Cal. Rules of Court, rule 3.1362(d)(1).)

ANALYSIS

Counsel seeks to be relieved on the grounds that Forever Oceans had agreed to indemnify and pay the costs of defense of all defendants, but Forever Oceans is no longer able to pay any attorney’s fees because it is now out of business and defunct. Counsel contends that, due to the fact that Forever Oceans can no longer indemnify and pay the costs of defense for the other defendants in this lawsuit, an inherent conflict of interest has arisen between the defendant parties.

Counsel has complied with the requirements of CRC Rule 3.1362 by filing forms MC-051 and MC-052 and lodging with the Court a copy of the proposed order on form MC-053 as to each Defendant. Counsel served Defendants by mail at each of the Defendants’ last known address, which Counsel states he has confirmed as current within the past 30 days. Counsel also served Plaintiffs, the only other parties who have appeared in the case.

Further, it appears no prejudice will be suffered by Defendants as no trial date is currently set. An Order to Show Cause re: Dismissal (Settlement) and an Order to Show Cause Re: why the case should not be dismissed and for the Court to retain jurisdiction pursuant to C.C.P. 664.6 are both set for March 17, 2025.

CONCLUSION

Nathan T. Lowery’s motion to be relieved as counsel for Defendants is GRANTED.

Moving party to give notice.