Lorena Felix vs Christian Younger et al

Case Number

22CV04160

Case Type

Hearing Date / Time

Mon, 09/18/2023 - 10:00

Nature of Proceedings

Case Management Conference; Motion to be Relieved as Counsel

Tentative Ruling

Lorena Felix vs. Christian Younger, et al. 

Case No. 22CV04160

           

Hearing Date: September 18, 2023                                                    

Matter:             Motion To Be Relieved As Plaintiff’s Counsel

Attorneys:        For Plaintiff Lorena Felix: Bryan Diaz, Bryan Diaz Law

For Defendants Christian Younger and the Law Offices of Christian Younger: R. Chris Kroes, Linda Elias-Wheelock, Law Offices of McCarthy & Kroes

TENTATIVE RULING:

For reasons discussed herein, the Court continues the hearing on counsel for plaintiff’s motion to be relieved as counsel to October 2, 2023. On or before September 25, 2023, plaintiff’s counsel shall lodge a proposed order as provided herein. In addition, counsel shall serve plaintiff with notice of the continued hearing, the Court’s August 21, 2023, Minute Order, and the Court’s ruling herein. On or before September 25, 2023, counsel for plaintiff shall file a proof of service evidencing service of these documents on plaintiff as ordered herein.

Background:

Plaintiff Lorena Felix filed a verified complaint in this matter on October 24, 2022, alleging one cause of action for legal malpractice against defendants Christian Younger (Younger) and the Law Offices of Christian Younger (the Law Office) (collectively, defendants.) As alleged in the complaint, plaintiff Felix retained defendants to represent her in connection with the filing of a voluntary petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code (the bankruptcy action). Felix was advised that the bankruptcy action would not be filed until title to property located at 898 Union Pacific Street in Fillmore, California (the property) vested in Felix’s name. Based on defendants’ advice, Felix transferred title to the property into her name on June 16, 2021. At defendants’ request and based on defendants’ assurances that the property was exempt pursuant to California Code of Civil Procedure section 704.730 and that there existed limited risks associated with a prior transfer of title to the property to Felix’s son in 2019, Felix signed a memo of understanding regarding the transfer of title.

As further alleged in the complaint, on November 4, 2021, the bankruptcy trustee notified Felix that exemptions relating to the property were being challenged in the bankruptcy action on the grounds that the maximum allowed exemption was governed by Title 11 United States Code section 522(p) and not by California Code of Civil Procedure section 704.730. Defendants failed to consider whether and never informed Felix that Title 11 United States Code section 522(p) applied to her case. Defendants also failed to inform Felix that her exemptions would be limited and that the transfer of title to the property into Felix’s name would impact Felix’s exemptions in the bankruptcy action. The United States Bankruptcy Court sustained the trustee’s objections to the exemptions claimed by Felix in the bankruptcy action and limited Felix’s exemption to $170,350. On December 13, 2022, defendants filed their verified answer to Felix’s complaint.

On July 10, 2023, Felix’s counsel filed a motion to be relieved as counsel which was initially set for hearing on August 21, 2023. No party to this action has filed an opposition to the motion to be relieved as counsel. In the declaration submitted in support of the motion to be relieved as counsel, Felix’s counsel declares that Felix was advised of counsel’s conflict and unavailability in February or March 2023. (Diaz Decl. in support of motion to be relieved, ¶ 2.) Though Felix indicated that a substitution was forthcoming, no substitution of counsel was made. (Ibid.) Counsel is unable to continue with the prosecution of this action. (Ibid.)

The Court issued its Minute Order addressing the motion to be relieved as counsel on August 21, 2023 (the Minute Order). Due to deficiencies in the motion to be relieved as counsel, the Court continued the hearing on the motion to September 18, 2023, to permit plaintiff’s counsel to file and serve a supplemental declaration or, alternatively, a proof of service evidencing service of the motion on plaintiff and all appearing parties, and to lodge a proposed order. Counsel was also ordered to serve plaintiff with notice of the continued hearing and the Court’s ruling herein and to file a proof of service of the notice of ruling on or before September 5, 2023.

On September 5, 2023, plaintiff’s counsel filed a supplemental declaration stating that the motion was served by email and mail on plaintiff and all appearing parties on July 5, 2023. (Diaz Decl., ¶ 3.) A copy of a proof of service evidencing service of the motion on plaintiff and appearing parties is attached to counsel’s declaration. (Id., Exh. 2.) Counsel also provides a last known address for plaintiff. (Id. at ¶ 4.)

Analysis:

“The 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 upon the minutes; [¶] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.) A motion to be relieved as counsel must be directed to the client and made on mandatory Judicial Council form MC-051. (Cal. Rules of Court, rule 3.1362(a).) While a memorandum is not required, the motion must be accompanied by a declaration on mandatory Judicial Council form MC-052. (Id., rule 3.1362(b), (c).) “The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).” (Id., 3.1362(c).)

The motion, declaration, and a proposed order must be served on the client and all appearing parties. (Cal. Rules of Court, rule 3.1362(d).) “If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that 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 or business address 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.” (Cal. Rules of Court, rule 3.1362(d)(1).) “ ‘[C]urrent’ means that the address was confirmed within 30 days before the filing of the motion to be relieved.” (Cal. Rules of Court, rule 3.1362(d)(2).) A proposed order, prepared on mandatory Judicial Council form MC-053, must be lodged with the court in accordance with California Rules of Court, rule 3.1362(e).

“The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133 (Manfredi).) “The case law establishes that the court has discretion to deny an attorney’s request to withdraw where such withdrawal would work an injustice or cause undue delay in the proceeding. [Citations.] But the court's discretion in this area, as elsewhere in the law, is one to be exercised reasonably.” (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.)

The motion, which is unopposed and made on the required mandatory forms, states that in February or March 2023, counsel told Felix he was unavailable, that plaintiff indicated a substitution was forthcoming, that no substitution was made, and that counsel is unable to continue with the prosecution of this action. (Diaz Decl., ¶ 2.) Counsel declares that the notice, motion, and declaration were served by mail on Felix on August 22, 2022. (Id. at ¶ 3.a(2).) Counsel states that he has confirmed by email within the past 30 days that Felix’s address is current. (Id. at ¶ 3.b(1)(d).)

Counsel has described the general nature of the basis for his request to be relieved as counsel. Based on the information provided by counsel, and the lack of opposition to the motion, the court is satisfied that sufficient justification exists for relieving Felix’s counsel in this matter. There is no information to demonstrate that counsel’s withdrawal would work an injustice on any party or cause undue delay in this proceeding.

Counsel has now identified the address at which the motion was served on Felix to enable the Court and the parties to this action to serve necessary documents on Felix. The proof of service submitted by counsel demonstrates that the motion was also served on plaintiff and all appearing parties. However, counsel has failed to lodge a proposed order as required by California Rules of Court, rule 3.1362(e), and ordered by the Court in the Minute Order. Accordingly, the motion to be relieved as counsel remains deficient.

In addition, court records reflect that while defendants’ counsel filed and served a notice of the Minute Order on plaintiff’s counsel, plaintiff’s counsel did not file a proof of service demonstrating that notice of the Minute Order was served on plaintiff as ordered by the Court. 

For reasons discussed above, the Court will further continue the hearing on the motion to be relieved as counsel to October 2, 2023. Plaintiff’s counsel shall, no later than September 25, 2023, lodge a proposed order as required by California Rules of Court, rule 3.1362(e), and serve plaintiff with notice of the Minute Order and the Court’s ruling herein. On or before September 25, 2023, counsel shall file a proof of service evidencing service of these documents on plaintiff.