A Stuart Rubin et al v Preferred Bank

Case Number

21CV03982

Case Type

Hearing Date / Time

Wed, 10/04/2023 - 10:00

Nature of Proceedings

Motion to be Relieved as Counsel filed by Plaintiff’s Counsel on 9/18/2023

Tentative Ruling

Plaintiff (1604 Sunset Plaza LLC)/Pro Per: Paul Carelli

Plaintiffs A Stuart & Annette Rubin: John Thyne & Paul Carelli

Defendant: Michael Bubman

Claimant Cappello & Noel: Wendy Welkom

Claimants Daniel & Hillary Wallace: Daniel Engel

Non-party The Las Canoas Co: Daniel Engel

Ruling

For the reasons set out below the Motion to Be Relieved As Counsel is denied.

Analysis

This is a motion by present counsel for plaintiffs to be relieved as counsel. On September 19, the court granted an ex parte application advancing the hearing on this matter to October 4, shortening time, and requiring opposition to be filed on September 28 and any reply to be filed on September 29. The case was filed 10/16/21; it has been vigorously litigated. The next CMC is 10/11/2023; MSJ 11/1/2023; MSC 11/17/2023; TCC 11/29/2023.

Motion to be Relieved as Counsel

Filed 9/18/23; set for 10/25/23 and advanced to 10/4/23; Counsel Thyne testified that: The following provision is in attorney's signed retainer agreement with these clients:

"Attorney may withdraw with Client’s consent or for good cause or as permitted under the Rules of Professional Conduct of the State Bar of California and/or applicable law. Among the circumstances under which Attorney may withdraw are: (a) with the consent of Client; (b) Client’s conduct renders it unreasonably difficult for the Attorney to carry out the employment effectively; and/0r (c) Client fails to pay Attorney’s fees or costs as required by this Agreement."

Testifies that despite having worked together previously on other cases, clients have not effectively communicated with attorney in this matter, nor will they take counsel. Attorney has not been paid for any of the work rendered in this case. Attorney cannot effectively represent these clients in this matter going forward.

Testifies that the motion was served on the client by mail at the client's last known address with copies of the motion papers served with this declaration; testifies that he confirmed within the past 30 days that the address is current.

There is no pleading from the Clients in the file.

Opposition

On 9/28/23 counsel for the Bank filed a declaration in support of the Opposition: summarized; the Rubins and their counsel have been warned repeatedly by this Court that the trial date will not be continued.  That has not stopped the Rubins and their counsel from repeated requests to continue the trial, including the latest communication from their attorney asking for a 6-month extension of the trial date!  [Mr. Thyne’s email correspondence of September 26, 2023, appended as Exhibit “E.”] Mr. Thyne knowingly got himself into this “relationship” with the Rubins knowing that the case was old and that a trial date would be set shortly thereafter.  In fact, at the May 3, 2023 hearing, this Court set a trial date of November 29, 2023 based upon the representations made by Mr. Thyne in his April 20, 2023 Case Management Statement, which stated he would have his discovery completed by September 2023.   Knowing of that trial date, Mr. Thyne did not propound any discovery requests until he first propounded Requests for Production, the only discovery propounded, on August 22, 2023, and even then he did so for an entity that he does not represent!  Still, to this day, the Rubins and Mr. Thyne have failed to comply with the Court’s order regarding responding to the Bank’s discovery which, at the time of the hearing on this Application, will have been outstanding for an entire YEAR!  The Court said it best in its ruling on the Motions to Compel on June 7, 2023: “The Trial Date in this case is 11/29/23. The Court finds that the Responding Parties have been granted every reasonable opportunity to meet the very routine basic requests made by Bank and have totally ignored and deliberately not followed the rulings of this Court with rhythmic regularity; their failure has been obvious; egregious. The Bank’s requests are mandated.”

Supported by a Memorandum or Points and Authorities; 11 pages; summarized; contends the Court should deny the relief requested because it appears that Mr. Thyne has allowed himself to be used by the Rubins to delay the trial of the instant matter. To date, the only actions taken by Mr. Thyne in this case have been in furtherance of the Rubins’ attempts to delay the trial of this matter.  Mr. Thyne’s first and only substantive effort to conduct any discovery (notwithstanding the failure to comply with this Court’s June 7, 2023 order re discovery responses) came upon the receipt of service of the MSJ, on August 22, 2023.  Within less than 30 days, Mr. Thyne was attempting to extricate himself from the representation in the action with the filing of his Ex Parte Application to be Relieved as Counsel. Mr. Thyne’s participation in this action has essentially been to deliver messages from the Rubins, who have shown they have every intention to delay the trial of this action as long as possible. It started with the assertions, on behalf of CRG and Jonah, that he would be filing a motion for relief from the default (which never occurred) and has continued through the brief time of his representation of Stuart and Annette Rubin in the instant action. Mr. Thyne has not asserted he has any conflict with his clients or with the continued representation of his clients.  Mr. Thyne’s basis is that: (1) the Rubins do not communicate well; and (2) he is not getting paid.

The decision of whether to grant a motion to be relieved as counsel rests within the sound discretion of the Court.  Manfredi & Levine v. Superior Court (1998) 66 Cal.App.,4 th 1128, 1133.  In Manfredi, supra, the Court denied the attorneys’ attempt to be relieved as counsel as a result of the attorneys’ failure to provide sufficiently detailed reasoning to allow the Court to determine whether there actually was a conflict that warranted the relief requested by the attorneys.   Manfredi, supra, 66 Cal.App.4 th at 1135-1136.  This is strikingly similar to the instant situation, where (other than the failure of the Rubins to pay, which was known at the beginning of the engagement) Mr. Thyne provides very generalized statements regarding the Rubins’ “ineffective communication.” From his history with the Rubins, Mr. Thyne was well aware of the fact that he was not going to get paid presently – he admitted to knowing as much in his conversation with counsel for the Bank on June 6, 2023.  Bubman Decl., ¶12.  As admitted by Mr. Thyne, this comes as no surprise to him, as it is what he has understood in his representation of the Rubins.  As Mr. Thyne noted to Bank’s counsel on June 6, “They will pay me sometime down the road.  It is what they always do.”  Bubman Decl., ¶13. In fact, the only ones who will suffer from this gamesmanship is the Bank.  This is the second frivolous lawsuit filed by the Rubins on the very same ridiculous allegations. Mr. Thyne knowingly accepted this representation of the Rubins with all its warts, having been regularly not paid in his representation of them, as well as having been sued previously for malpractice.  That was his choice, not the choice of the Bank.  He now must live with his choices. The Bank respectfully submits that the Motion must be denied.    

Reply

Filed on 10/2/23; summarized; contends:

(1) There was an inaccurate POS;

(2) Mr. Bubman claims in his Opposition that Mr. Thyne was sued for malpractice by the Rubins but fails to explain to this Court that the suit to which he refers was dismissed before it was served. There is no relevance to Mr. Bubman’s reference to that litigation other than to support his rhetorical questions peppered at the beginning of his opposition. Oddly, Mr. Bubman’s claim that the Rubins complained about being overbilled to the tune of $100,000 is at odds with his assertion that because the Rubins did not pay Mr. Thyne attorney fees over the years he should not be surprised by the non-payment in this case.

(3) Mr. Bubman refers to Mr. Thyne’s involvement in this case in 2022 on behalf of Jonah Rubin and CRG Investment Management LLC, two defaulted defendants. As it turns out, Mr. Jonah Rubin has been away in military service with limited access to those without a security clearance so the Motion to Set Aside Default will be filed upon his hopeful return. At the time Mr. Thyne contacted Mr. Bubman regarding Jonah Rubin it was true that Mr. Thyne did not represent Mr. or Mrs. Rubin in this case. Mr. Thyne did not substitute into this case on behalf of Mr. and Mrs. Rubin until April of 2023.

(4) The Bank’s argument that he should not be relieved as counsel is not supported by the law of facts; confidentiality prevents further explanation. Without betraying client confidences, Mr. Thyne can only report that he is not able to adequately represent Annette and Stuart Rubin in this case.

(5) Requests that the Court relieve him as counsel.

Motion for Terminating Sanctions

Filed by the Bank on 10/2 and set for hearing on 11/15/23.

The Court’s Conclusions

The Motion must be denied. We have done this once before. Rubin’s previous counsel, Jared Katz, was relieved in 1/2023; Mr. Thyne substituted in this case on 4/12/23; the trial date and MSC dates were long before set and confirmed at the CMC on 6/23/23; at that CMC Mr. Thyne acknowledged the previously set trial date; the SJ Motion was filed by the Bank on 8/14/23; it is vastly too late in this case to relieve counsel [again]; Mr. Thyne is an experienced and competent lawyer; has been told numerous times that the Court intended this case to go on schedule; to seek to be relieved on the very eve of trial and just before significant motions are to be decided would be extraordinarily unfair to the Bank and the Court. The Bank’s Opposition to the Motion is very persuasive.