Judge: Virginia Keeny, Case: 20VECV01388, Date: 2022-10-27 Tentative Ruling

Case Number: 20VECV01388    Hearing Date: October 27, 2022    Dept: W

LIKER V. ELIEZER APPEL, ET AL.

MOTION TO BE RELIEVED AS COUNSEL

Date of Hearing:          October 27, 2022                    Trial Date:       None Set

Department:               W                                             Case No.:         20VECV01388

Moving Party:             Helene J. Farber for Defendants

Responding Party:       Defendants Cochran, Inc. and Lockhart Dev. Company, Inc.

BACKGROUND

On November 24, 2020, plaintiff Mark A. Liker filed an action against defendants Eliezer Appel; Lockhart Development, Inc.; and Cochran, Inc.

Defendants’ Counsel Helene J. Farber (Counsel) filed the instant Motion to be Relieved as Counsel on September 14, 2022 against Cochran Inc. and on September 15, 2022 against Lockhart Development, Inc.

In the September 27, 2022, minute order, this Court found that the moving papers were not served 16 court days before the hearing. On the Court’s own motion, the Hearing on Motion to be Relieved as Counsel was continued to October 27, 2022, and Counsel was ordered to serve all papers upon her clients and file proof of service with the court.

On October 19, 2022, Defendants filed an Opposition to Ms. Farber’s Motion.

[Tentative] Ruling

The Court GRANTS Counsel’s Motion.

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 Civ. Proc. § 284, subd. (2).) “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 Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).) 

In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either: 

(A) The service address is the current residence or business address of the client; or 

(B) The service address is 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, subd. (1)(A) & (2).) 

ANALYSIS

Procedural Violations

Defendants argue Counsel did not give proper notice under Code of Civil Procedure section 1010.6 which requires parties to provide express consent for electronic service.

Code of Civil Procedure section 1010.6(a)(2) states: “(ii) For cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized if a party or other person has expressly consented to receive electronic service in that specific action, the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d), or the document is served electronically pursuant to the procedures specified in subdivision (e). Express consent to electronic service may be accomplished either by (I) serving a notice on all the parties and filing the notice with the court, or (II) manifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.” Defendants claim they did not provide express consent to be served electronically.

Code of Civil Procedure section 1010.6(e) states: “(1) A party represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before first serving a represented party electronically, the serving party shall confirm by telephone or email the appropriate electronic service address for counsel being served.”

Here, Counsel has confirmed that by email the appropriate electronic service address for Defendants under CCP section 1010.6(e) because Ms. Farber stated in her declaration MC-052 for both Defendants that she confirmed within the past 30 days that the address is current: “The client will be served by ELECTRONIC mail, its preferred way, with copies of the motion papers filed with this declaration concurrently with or prior to the court filing. A copy of the proof of service will be filed with the court concurrently with the filing of the motion papers. The email address is confirmed by a recent exchange on email – within 5 days – and [] has been the primary way of communication for 2 years.” (MC-052 Cochran; MC-052 Lockhart.) The Court finds this sufficient to satisfy the requirements in CCP 1010.6(a) which allows electronic service of the document if “the document is served electronically pursuant to the procedures specified in subdivision (e).” (CCP § 1010.6(a)(ii).) Thus, Counsel did give proper notice.

Motion to be Relieved as Counsel

Counsel seeks to be relieved because “the attorney-client relationship has deteriorated such that the differences are irreconcilable; there is no viable communication; [she] can no longer effectively represent [her] clients in their best interests.” (MC-052 Cochran ¶ 2; MC-052 Lockhart ¶ 2.)

The Court is satisfied with Counsel’s reasons for seeking to be relieved. Counsel states in her declaration that the Motion was served at Defendants’ last known address which was confirmed as current at most 30 days before this Motion was filed by electronic mail, which is Defendants’ preferred way. (MC-052 Cochran ¶ 3; MC-052 Lockhart ¶ 3.) Counsel filed proof of service demonstrating Defendants were served with the Motion and supporting documents as required by California Rules of Court, rule 3.1362. (Proof of Serv. ID x 0151; Proof of Serv. ID x 0026.)

Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.)  Counsel’s Motion complies with California Rules of Court, Rule 3.1362. The Court notes there is currently no trial date set in this matter. However, Defendants argue they would be prejudiced if the Court were to grant this motion since no other counsel has been identified for Defendants. If the Court does choose to grant Counsel’s request, Defendants ask that the Court give them at least four months to secure alternate representation. Defendants claim Counsel was the sole attorney on the case and they cannot represent themselves.

The Court finds that there is no prejudice since a trial date has not been set and therefore GRANTS Counsel’s Motion to be Relieved as Counsel.

CONCLUSION

For the foregoing reasons, the Court GRANTS Counsel’s Motion to be Relieved as Counsel.