Case Number: 22STCV10330 Hearing Date: December 8, 2023 Dept: 207
TENTATIVE RULING
| DEPARTMENT | 207 |
| HEARING DATE | December 8, 2023 |
| CASE NUMBER | 22STCV10330 |
| MOTION | Motion to be Relieved as Counsel |
| MOVING PARTY | Thomas D. Sands, Esq. |
| OPPOSING PARTY | (none) |
MOTION
Thomas D. Sands of The Sands Law Group, APLC, counsel for Cross Defendant Jafiel Drinkwater (“Counsel”) moves to be relieved as counsel, citing a “severe breakdown in the attorney-client relationship[.]” (MC-052.) No opposition has been filed.
LEGAL STANDARD
Code of Civil Procedure section 284 provides “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment or final determination as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered in the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”
Procedural Requirements
California Rules of Court, rule 3.1362, requires:
(1) the motion must be made on form MC-051; (subd. (a));
(2) it must be accompanied by a declaration on form MC-052 stating why the motion is brought under Code of Civil Procedure section 284(2) instead of a consent brought under section 284(1); (subd. (c));
(3) a proposed order on form MC-053 must be lodged with the court, specifying all hearing dates scheduled in the action or proceeding, including the date of trial, if known; (subd. (e)); and
(4) The documents must be served on the client and on all parties that have appeared in the case. (subd. (d).)
If the notice is served by mail or electronic service, it must be accompanied by a declaration indicating that the address served is the current address, or in the case of service by mail, that it was served on the last known address and a more current address could not be located after reasonable efforts within 30 days before filing the motion. (Ibid.) 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.” (Ibid.)
Substantive Requirements
Rules of Professional Conduct, rule 1.16(a) outlines the reasons a lawyer must withdraw from representation of a client:
(1) the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person;
(2) the representation will result in violation of the Rules of Professional Conduct or the State Bar Act;
(3) the lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively; or
(4) the client discharges the lawyer.
Rules of Professional Conduct, rule 1.16(b) outlines the reasons a lawyer may withdraw from representation of a client:
(1) the client insists upon presenting a claim or defense in litigation, or asserting a position or making a demand in a non-litigation matter, that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;
(2) the client either seeks to pursue a criminal or fraudulent course of conduct or has used the lawyer’s services to advance a course of conduct that the lawyer reasonably believes was a crime or fraud;
(3) the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent;
(4) the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;
(5) the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation;
(6) the client knowingly and freely assents to termination of the representation;
(7) the inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;
(8) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;
(9) a continuation of the representation is likely to result in a violation of these rules or the State Bar Act; or
(10) the lawyer believes in good faith in a proceeding pending before a tribunal that the tribunal will find the existence of other good cause for withdrawal.
DISCUSSION
Counsel has filed forms MC-051, MC-052, and MC-053 and a proof of service. The attorney declaration (MC-052) indicates that the motion was filed instead of filing a consent because:
- Client has declined to sign substitution of attorney form thus necessitating the filing of the current motion;
- There has been a severe breakdown in the attorney-client relationship thereby rendering it impossible for counsel to per the effectively represent [sic]
- Additionally, substantial conflict has arisen between attorney and client therefore hindering any furtherance of representation.
- Based upon the existing circumstances, counsel has no choice but to move to the court requesting a withdrawal as attorney of record for defendant.
(MC-052, ¶ 2.) As such, the Court finds that the motion is substantively proper. (Rule of Professional Conduct 1.16(b)(4).)
Although the proof of service indicates that the client, Andre Wegman, counsel were served by mail, the proof of service does not clearly indicate that all parties who have appeared in the case were properly served. Nevertheless, the Court notes that counsel for Defendant Sound Equity, Inc. and Defendant Dee Brothers were not listed on the proof of service. Therefore, the Court finds the motion to be procedurally improper.
CONCLUSION AND ORDER
The Court denies without prejudice Counsel’s Motion to be Relieved as Counsel for failure to comply with California Rules of Court, rule 3.3162.
Counsel shall provide notice of the Court’s ruling and file a proof of service regarding the same.
DATED: December 8, 2023 ________________________________
Michael E. Whitaker
Judge of the Superior Court