MOTIONS TO BE RELIEVED AS COUNSEL

Moving Party: Tredway, Lumsdaine & Doyle LLP

Respondents: No timely opposition filed

POS: Moving OK

This is a construction defect dispute involving a multi-unit apartment complex in Diamond Bar.

De Sisto Construction, v. Tam, et al., Case No. KC058662 (“De Sisto Action”): Complaint for Breach of Contract and Foreclosure on Mechanic’s Lien. The complaint alleges that Plaintiff De Sisto Construction, Inc. (“De Sisto”) performed construction work at the Diamond Bar Village Apartments pursuant to a written agreement with defendant Tam Diamond Bar Associates (“Tam Diamond Bar”), but that Defendants breached the agreement by failing to pay Plaintiff $163,116.00 for work performed. The Complaint, filed on 5/7/10, asserts causes of action for: (1) foreclosure on mechanic’s lien; (2) breach of contract; (3) work, labor and materials furnished; and (4) account stated. Defendants have filed a cross-complaint for: (1) breach of contract; (2) negligence; (3) breach of implied warranty; (4) breach of express warranty; and (5) concealment. Defendants contend that Plaintiff failed to perform the construction in a reasonable, competent and workmanlike manner.

Gateway Plastering, Inc. v. De Sisto Construction, Inc., et al., Case No. KC059325 (“Gateway Action”): Complaint for Breach of Contract and Foreclose on Mechanic’s Lien. The Complaint alleges that Plaintiff entered into a subcontract with Defendants De Sisto and Tam Diamond Bar to perform construction improvements at the Diamond Bar Village Apartments, but that Defendants breached the agreement by failing to play Plaintiff $368,531.00 for work performed. The Complaint, filed on August 6, 2010, asserts causes of action for: (1) breach of written contract; (2) quantum merit; (3) account stated; (4) open book account; (5) foreclosure of mechanic’s lien; and (6) enforcement of bonded stop notice.

On 9/22/10, the court deemed the De Sisto Action and the Gateway Action related for all further purposes. The De Sisto Action was designated the lead case. On 6/6/11, the two cases were consolidated.

Final Status Conference is set for 4/30/14. Trial is set for 5/5/14.

Tredway, Lumsdaine & Doyle, LLP, counsel for De Sisto Construction, Inc. now moves to be relieved as counsel of record for De Sisto.

A notice of motion and motion to be relieved as counsel under CCP 284(2) shall be directed to the client and shall be made on the Notice of Motion and Motion to Be Relieved as Counsel– Civil form (MC-051). (CRC 3.1362(a).) The motion to be relieved as counsel shall be accompanied by a declaration on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel–Civil form (MC-052). The declaration shall state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP 284(2) is brought instead of filing a consent under CCP 284(1). (CRC 3.1362(c).)

The notice of motion and motion and the declaration shall be served on the client and on all other parties who have appeared in the case. The notice may be by personal service or mail. If the notice is served on the client by mail under code of civil procedure section 1013, it shall be accompanied by a declaration stating facts showing that either (1) the service address is the current residence or business address of the client or (2) 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 prior to the filing of the motion to be relieved. “Current” means that the address was confirmed within 30 days prior to the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client’s last known address and was not returned will not, by itself, be sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) shall apply. (CRC 3.1362(d).)

The proposed order relieving counsel shall be prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel–Civil form (MC-053) and shall be lodged with the court and served on the client with the moving papers. The order shall specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order shall be served on the client and on all parties that have appeared in the case. 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. (CRC 3.1362(e).)

The moving counsel has substantially complied with the requirements of CRC 3.1362. Notice was served on the client by mail at the client’s last known address and counsel has confirmed within the past 30 days that the address is current by mail, return receipt requested. Counsel represents that there is an irreparable breakdown in communication such that it would be in the best interests of both parties to terminate their relationship and the client has failed to pay the attorneys and is currently past due. No opposition has been filed. Thus, the motions are granted.

The court will set an order to show cause why the operative pleadings of De Sisto should not be stricken unless the corporation is represented by new counsel.