Case Number: TC028461??? Hearing Date: April 11, 2017??? Dept: B
# 3. Deeno Group, Inc. v. E-Cig Company, Inc.
Case No.: TC028461
Matter on calendar for: Unopposed motion to be relieved as counsel
Tentative ruling:
I. Background
This is essentially a sale of goods case. It was filed on June 15, 2016.
Defendant?s counsel, Michael A. DesJardins, timely moves the Court to relieve him as counsel on the following grounds: ?Due to the fact that the company is no longer conducting business and the point of contact person which I had with the company is no longer employed, communication between the client and I have broken down to the point where I believe that I am unable to continue to effectively represent their interest.? (See DesJardins Decl.)
Counsel served his client by mail after confirming by telephone, within the past 30 days, that the client?s mailing address is current. (Id.) Counsel has also submitted a proposed order, and timely and accurately noticed both his client and opposing counsel. (See attached Proof of Service.)
There is no opposition. A trial date has not been set. There was a CMC/OSC re: dismissal to prosecute, and status conference regarding possible bankruptcy, on April 6, 2017.
II. Applicable law
An attorney in an action may be changed at any time before or after judgment or final determination ?upon the order of the court, upon the application of either client or attorney, after notice from one to the other.? (CCP ? 284(2).)
Under Code of Civil Procedure (?CCP?) ? 1005(b), moving and supporting papers need to be filed at least 16 court days before the hearing. Under CCP ?? 1005(b) and 1013(a), moving and supporting papers served by mail need to be served no later than 16 court days plus 5 calendar days before the hearing.
California Rule of Court (?CRC?) 3.1362(a)-(e) also requires:
(5) Notice of motion and motion must be directed to the client and made on the Notice of Motion and Motion to be Relieved as Counsel Civil form (MC-051);
(6) Filing of a declaration stating in general terms, and without compromising the confidentiality of the attorney client relationship, why a motion under CCP ? 284(2) is brought instead of filing a consent under CCP ? 284(1). This declaration must be made on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel Civil form (MC-052);
(7) Service of the notice of motion and motion, declaration, and proposed order on the client and all other parties who have appeared in the case. If the notice is served on the client by mail, the notice must be accompanied by a declaration stating facts showing 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 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; and
(8) Lodging of a proposed order relieving counsel, which must be prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel Civil form (MC-053), and which must be lodged with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding.
The motion should be denied if withdrawal would prejudice the client under Rules Prof. Conduct, Rule 3-700(A)(2), or if withdrawal will cause undue delay in the proceeding or cause injustice. (See Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.) The determination whether to grant or deny an attorney?s motion to withdraw as counsel of record lies within the sound discretion of the trial court. (See Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.)
III. Analysis & Ruling
The Court grants this motion because counsel has complied with the requirements. The Court will sign a proposed order granting the motion, and the order will become effective upon filing of a proof of service on Defendant. Counsel must specifically inform Defendant that it must retain counsel to defend this litigation, because a corporate entity cannot defend itself.
The Court sets and OSC re dismissal for June 19 at 8:30 AM in Department A. Defendant must have retained new counsel by that date, and the new counsel must appear. Existing counsel is ordered to advise the Defendant of this requirement.
Next dates: Order to Show Cause re dismissal ? June 19, 2017 at 8:30 AM in Department A.
Notice: Moving party to give notice