Michael Herrera v. Lisa Heboldsheimer

Case Number

20CV00035

Case Type

Hearing Date / Time

Wed, 04/02/2025 - 10:00

Nature of Proceedings

Motion to Withdraw as Counsel; Motion for Deemed Admissions (and Sanctions); and, 3 Motions to Compel

Tentative Ruling

Patric Weddle for Plaintiff

Nathan Rogers for Defendant

RULINGS

Motion to withdraw. The motion by Defendant’s counsel to be relieved as attorney of record is granted. The Court has reviewed the proposed order submitted by counsel, and intends to execute it, with the modifications to No. 8, to include the date for responses to Special Interrogatories (Set One), Form Interrogatories (Set Two), and Requests for Production (Set One), and omitting any reference to the Requests for Admissions, given that they are being deemed admitted at this hearing, and to No. 9 to reflect the MSC date and the trial date set by the Court at the hearing and the sanctions ruling.  

Discovery motions. Plaintiff served Defendant with Special Interrogatories (Set One), Form Interrogatories (Set Two), Requests for Production (Set One), and Requests for Admissions (Set Two), on December 20, 2024. When no responses were received, Plaintiff unilaterally granted a 10-day extension of time for Defendant to respond, but no responses were provided. Plaintiff has now moved to compel responses to the special interrogatories, form interrogatories, and requests for production, without objection, and for sanctions of $750 against Defendant and her attorney for each motion. Plaintiff has further moved to have the matters set forth in the requests for admissions deemed admitted, and for sanctions of $750 against Defendant and her attorney.

No opposition has been filed to the discovery motions. The Court will grant the motions to compel and will order Defendants to provide verified responses to the special interrogatories, form interrogatories, and requests for production, without objection, no later than April 18, 2025. The Court will also grant the motion for deemed admissions and will order that the matters set forth in the requests for admissions are deemed to have been admitted by Defendant. The Court will award sanctions totaling $2,000 against Defendant to be paid by May 1, 2025.

Defendant’s withdrawing attorney is directed to provide his client with notice of the Court’s ruling on the discovery motions immediately after the hearing, so that she will have adequate notice of her response deadline. This directive does not alter the Court’s instruction, provided above, that the date for response be inserted in the formal order permitting counsel’s withdrawal as attorney of record.  

Other issues The Court notes that this case, filed on January 2, 2020, is now more than five years old, and appears to have had little activity during most of that time. Pursuant to Code of Civil Procedure section 583.310, as modified by Emergency Order 10 which was issued because of the coronavirus pandemic, the action must be brought to trial no later than July 2, 2025. The Court has no authority to extend that period.

The Court intends to bring the action to trial prior to July 2, 2025.

Therefore, the Court sets the matter for an MSC on May 2, 2025, at 8:30am in Department #5 via Zoom and for trial on June 4, 2025, at 11:30 in this Department.

Analysis

The Motion

The motion to withdraw is a typical one, with the declaration in support of the motion stating that one of the grounds for withdrawal under California Tule of Professional Conduct 1.16(b) exists, which would make counsel’s continued employment in the case unreasonably difficult, but that provision of further information would violate the attorney-client privilege.

Rule 1.16(b) provides:

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

(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.

Opposition

The motion to withdraw is opposed by Plaintiff’s counsel Patric Weddle.

Mr. Weddle’s opposition contends that the motion to withdraw is coming too late in the proceedings, particularly since defense counsel apparently refused to extend the 5-year (+ 6 months) period to bring the action to trial; and Mr. Weddle seems to want to make any withdrawal by defense counsel contingent on the court extending that time (given its filing date of 1/2/2020, it has to go to trial by 7/2/2025 - 6 months plus 5 years, pursuant to Emergency Rule 10(a), which adds an extra 6 months to bring the action to trial for all civil cases filed before April 6, 2020). He also contends that the motion to withdraw is a ploy to obtain a tactical advantage for Defendant.

Reply

Mr. Rogers filed a Reply Brief; contends that: Defendant’s attorney has made the required showing to be relieved as counsel of record in this case.  As Plaintiff concedes in his opposition, the California Rules of Court require that the declaration supporting a motion to withdraw be general in nature and preserve attorney-client privilege.  Counsel has stated under penalty of perjury that one or more of the accepted reasons for withdrawing as counsel exist.  This is sufficient to grant the motion.

The real purpose of Plaintiff’s opposition is to try to avoid a problem of his own making - namely, the fact that the five-year statute for bringing this case to trial (including the six-month Covid-related extension) is about to expire.  After serving form interrogatories and requests for admissions in the spring of 2021 (to which Defendant responded), Plaintiff did nothing to prosecute this case.  Instead, Plaintiff let the case lie dormant until December 20, 2024, when Plaintiff’s counsel served additional discovery and advised that he intended to pursue this action.  It was only after notifying the Defendant of these new developments that the need to withdraw became apparent. In short, any delay or prejudice exists strictly because of Plaintiff’s handling of his own case.  But there is no basis to refuse the request to withdraw as counsel in the face of a substantively and procedurally valid motion.  Requests that the court grant the motion to withdraw as counsel.

The Court’s Conclusions

It appears that nothing happened in this case between 12/8/2020 (when Plaintiff was granted an additional fee waiver) and 12/20/2024 (when Plaintiff apparently served the discovery that is at issue in the discovery motions on calendar).

The complaint was filed by Plaintiff in pro per, but Mr. Weddle substituted into the case on 6/3/2020 (58 months prior to the hearing date on these motions), so even without periodic CMC’s, it was up to him to push the case along. The discovery at issue here was served more than 4.5 years after he substituted into the case.

Mr. Weddle contends that the declaration in support of the motion to withdraw is “vaguely stated” and it cannot support the withdrawal, even though he acknowledges that a declaration in support of such a motion cannot compromise the confidentiality of the attorney-client relationship.

He would agree to withdraw his opposition, if an extension of time for trial is stipulated to between the parties prior to or at the hearing on the motion to withdraw, or if the court would order a reasonable extension of time for trial.

But the Court has no authority to extend the 5-year period. It is mandatory (CCP § 583.360), can be extended only by agreement of the parties (CCP § 583.330), and the only periods which can permissibly be excluded from the computation of the time period are when (a) jurisdiction of the court to try the action was suspended, (b) prosecution or trial of the action was stayed or enjoined, or (c) bringing the action to trial for any reason was impossible, impracticable, or futile, is excluded (CCP § 583.340). None of these apply. If the action does not go to trial by 7/2, it will have to be dismissed.

Currently before the Court is the motion by defense counsel to be relieved as Defendant’s counsel of record, and the motions by Plaintiff to compel Defendant to provide responses to special interrogatories, form interrogatories, and requests for production, and to have the matters set forth in requests for admissions deemed admitted. The Court will try this case before 7/2/25.

It is clear rulings need to be made.