Lorena Felix vs Christian Younger et al

Case Number

22CV04160

Case Type

Hearing Date / Time

Mon, 10/02/2023 - 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: October 2, 2023                                               

MATTERS:             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:

(1) Plaintiff’s counsel, Bryan Diaz, is ordered to appear on October 30, 2023, at 10:00 a.m. in this Department, and show cause why monetary sanctions not to exceed $1,500 should not be imposed against him for violating California Rules of Court, rule 3.1362(e), and for failing to comply with the Court’s Minute Orders issued on August 21, 2023, and September 18, 2023. Plaintiff’s counsel shall file and serve a written response to the Court’s order to show cause on or before October 16, 2023.

(2) The Court continues the hearing on the motion to be relieved as counsel to October 30, 2023. On or before October 16, 2023, plaintiff’s counsel shall lodge a proposed order as provided herein.

(3) The clerk shall give notice of this ruling to plaintiff Lorena Felix, individually, plaintiff’s counsel Bryan Diaz, and counsel for defendants at all addresses of record.

Background:

Plaintiff Lorena Felix (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). Felix’s claims arise out of defendants’ representation of Felix in connection with the filing of a voluntary petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code. On December 13, 2022, defendants filed their verified answer to Felix’s complaint.

On July 10, 2023, Felix’s counsel filed an unopposed motion to be relieved as counsel (the motion) which was initially set for hearing on August 21, 2023. On August 21, 2023, the Court issued a Minute Order (the August Minute Order) continuing the hearing due to deficiencies in the motion as further discussed in the August Minute Order. The Court ordered Felix’s counsel to file and serve a supplemental declaration or proof of service evidencing service of the motion on Felix and all appearing parties, to lodge a proposed order in accordance with California Rules of Court, rule 3.1362(e), to serve Felix with notice of the continued hearing and the August Minute Order, and to file a proof of service of the notice and August Minute Order on Felix on or before September 5, 2023. (See August Minute Order.) (Note: Undesignated rule references herein shall be to the California Rules of Court.)

On September 5, 2023, Felix’s counsel filed a supplemental declaration stating that July 5, 2023, counsel served the motion by email and mail on Felix and all appearing parties together with a copy of a proof of service evidencing service of the motion on Felix and defendants. Felix’s counsel failed to lodge a proposed order and failed to file a proof of service demonstrating that notice of the continued hearing and the August Minute Order was served on Felix, as ordered by the Court.

On September 18, 2023, the Court issued a Minute Order (the September Minute Order) continuing the hearing on the motion due to remaining deficiencies described in the September Minute Order, including counsel’s failure to file a proposed order. The Court again ordered Felix’s counsel to lodge a proposed order in accordance with rule 3.1362(e), to serve plaintiff with the August Minute Order and the September Minute Order, and to file a proof of service evidencing service of the August Minute Order and September Minute Order on Felix.

Court records reflect that counsel for Felix has not lodged a proposed order and has not filed a proof of service of the August Minute Order or the September Minute Order on Felix.

Analysis:

“In addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules.” (Cal. Rules of Court, rule 2.30(b).) In addition, “[a] judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term ‘person’ includes a witness, a party, a party’s attorney, or both.” (Code Civ. Proc., § 177.5.)

Felix’s counsel was required to lodge a proposed order with the motion, prepared on mandatory Judicial Council form MC-053, in accordance with rule 3.1362(e). Felix’s counsel has failed to lodge the proposed order. Counsel’s repeated failure to comply with rule 3.1362(e), has forced the Court to twice continue the hearing on the motion thereby expending time and scarce judicial resources

Counsel’s failure to lodge a proposed order with the moving papers also constitutes a violation of the August Minute Order and the September Minute Order. In addition, counsel has violated the August Minute Order and the September Minute Order by failing to file a proof of service of the Court’s orders on Felix. There is no information before the Court demonstrating good cause or substantial justification for counsel’s violation of August Minute Order and September Minute Order. (See Seykora v. Superior Court (1991) 232 Cal.App.3d 1075, 1081 [“section 177.5 does not even require a willful violation, but merely one committed ‘without good cause of substantial justification,’ that is, without a valid excuse”].)

For all reasons discussed above, the Court will order Felix’s counsel, Bryan Diaz, to appear and show cause why monetary sanctions not to exceed $1,500 should not be imposed against him for violating California Rules of Court, rule 3.1362(e), the August Minute Order, and the September Minute Order. The hearing on this order to show cause shall be set for October 30, 2023, at 10:00 a.m. in this Department. Counsel for Felix shall file and serve a written response to the Court’s order herein on or before October 16, 2023.

In addition, the Court will further continue the hearing on the motion to October 30, 2023. Felix’s counsel shall lodge a proposed order in accordance with rule 3.1362(e) on or before October 16, 2023.

The clerk shall give notice of the Court’s ruling herein on Felix, individually, Felix’s counsel Bryan Diaz, and counsel for defendants at all addresses of record for the parties and counsel.