Judge: Wesley L. Hsu, Case: 19PSCV00586, Date: 2023-03-22 Tentative Ruling



Case Number: 19PSCV00586    Hearing Date: March 22, 2023    Dept: L

Counsel for Plaintiff Kirby Wang’s (i.e., Law Offices of Tony M. Lu) Motion to be Relieved

as Counsel is GRANTED, contingent upon counsel filing an amended proof of service

reflecting Code of Civil Procedure § 1005, subdivision (b) compliant notice at or before the

time of the hearing [see below] and effective upon the filing of the proof of service showing

service of the signed order upon the Client at the Client’s last known address.

 

Background    

 

Plaintiff Kirby Wang (“Kirby”) alleges as follows: Kirby and his mom, Cher Wang, had been the owners of the property located at 24332 Delta Drive, Diamond Bar, CA (“subject property”) since 1989. In about July 2017, Kirby fell behind on his first mortgage loan with Wells Fargo. There were 5 loans on the subject property at that time; the first two were with Wells Fargo and the latter three were with private lenders. Plaintiff wanted to reinstate the first loan and pay off the third-fifth loans. In 2017, Kirby was introduced by Ginny Lin (“Lin”), an acquaintance and real estate agent, to James Cheung (“Cheung”). Cheung is a hard money lender and the principal of Protec Investment Inc. (“Protec”). Cheung agreed to lend Plaintiff a $170,000 loan at 18% annual interest, all due within one year, and secured by the subject property. In about September 2017, Plaintiff signed a real estate listing agreement with Faith Global Realty Group, a company that belonged to Lin, for about $980,000.00. Lin suggested that Plaintiff should sell the subject property due to the loan maturity and to avoid default and foreclosure. Lin never procured any acceptable offers. When the $170,000 loan matured on about July 17, 2018, Cheung demanded $250,000 from Kirby to pay off the loan. In the fall of 2018, Cheung told Cher that Cheung and Protec would reduce the interest rate from 18% to 9%; no documents were provided reflecting this change, however. On October 18, 2018, Cheung recorded an assignment of the deed of trust to BB Wells Investment Inc. (“BB Wells”), a company Cheung controls. Th assignment was signed by Cheung as President of Protec, even though Protec had already been dissolved. On November 15, 2018, a Notice of Default was recorded. On May 10, 2019, BB Wells foreclosed on the subject property. BB Wells subsequently filed an unlawful detainer action (“UD Action”) against Kirby and his dad, who were forced to vacate the subject property in July 2019. During the UD Action, a second promissory note with different language and a different interest rate was produced. Kirby had never seen or signed the second promissory note and believes the first page

of the first and second promissory notes were swapped.

 

On July 31, 2019, BB Wells filed a cross-complaint, asserting causes of action against Kirby, Cher and Roes 1-100 for:

 

1.     Declaratory Relief

2.     Abuse of Process

 

On April 8, 2021, Kirby filed a First Amended Complaint, asserting causes of action against BB Wells, Protec, Cheung, Lin, First American Financial & Investment Corp. (“First American”) and Does 1-60 for:

 

1.     Fraud

2.     Constructive Fraud

3.     Conspiracy to Commit Fraud

4.     Negligent Misrepresentation

5.     Violation of Federal Truth in Lending Act

6.     Rescission

7.     Wrongful Foreclosure

8.     Breach of Fiduciary Duty

9.     Unfair Business Practices

 

On May 10, 2021, Cheung filed a cross-complaint, asserting causes of action against Kirby, Cher and Does 1-10 for:

 

1.     Fraud

2.     Breach of Contract

3.     Breach of Implied Covenant of Good Faith and Fair Dealing

 

The Final Status Conference is set for September 26, 2023. Trial is set for October 10, 2023.

 

Discussion

 

The Law Offices of Tony M. Lu seeks to be relieved as counsel of record for Plaintiff Kirby

Wang (“Client”).

 

Notice

 

At the outset, the court notes that the proof of service filed concurrently with the motion on

February 21, 2023 reflects a future (i.e., February 22, 2023) service date. Counsel is instructed to

file an amended proof of service reflecting Code of Civil Procedure § 1005, subdivision (b)

notice at or before the time of the hearing.

 

Discussion

 

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of

justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.)

 

California Rule of Court (“CRC”) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure § 284(2) is brought instead of filing a consent under section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion, the declaration, and the proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). The court may delay the 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.

 

Attorney Tony M. Lu (“Lu”) represents that “[t]he attorney-client relationship has deteriorated to the point that any further representation of the Client will not be meaningful and may be prejudicial to Client.”

 

Lu states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with this declaration and that he has confirmed, within the past 30 days, that the address is current, via conversation.

 

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above

have been sufficiently met.

 

Accordingly, the motion is granted, contingent upon counsel filing an amended proof of service

reflecting Code of Civil Procedure § 1005, subdivision (b) compliant notice at or before the

time of the hearing [see below] and effective upon the filing of the proof of service showing

service of the signed order upon the Client at the Client’s last known address.