Case Number: BC667775 Hearing Date: February 05, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

BRENDA BARNES, ET AL.,

Plaintiff(s),

vs.

JEFFREY ELLIOT BOYER, ET AL.,

Defendant(s).

Case No.: BC667775

[TENTATIVE] ORDER GRANTING MOTION TO BE RELIEVED AS COUNSEL

Dept. 3

1:30 p.m.

February 5, 2019

Prior Hearing

The Court was originally scheduled to hear this motion on 1/23/19. Prior to the hearing, the Court issued the following tentative ruling:

Plaintiffs’ attorney of record, David D. Ernst of Backus & Ernst LLP, seeks to be relieved as counsel, contending there has been an irreparable breakdown in the attorney-client relationship such that further representation is not possible. Counsel declares he served the moving papers on his clients via email and mail at their last-known address. Counsel notes that his clients live in a van, and it is difficult to ensure their address is current, but indicates they consistently receive e-mail at the e-mail address used for service. Counsel has filed proof of service on his clients and on all parties who have appeared in the action. The motion is unopposed and granted; the ruling is effective upon filing proof of service of the order.

The Court notes that trial is scheduled on 4/23/19 (mis-stated as 4/23/18 in the moving papers), and encourages Plaintiffs to act expediently in retaining a new attorney if they wish to protect their interests in this litigation.

Counsel is ordered to give notice.

However, at the hearing, Plaintiffs appeared and indicated they had filed written opposition to the motion. The Court file revealed that Plaintiffs had done so, but their opposition papers were untimely, such that they had not reached the Court prior to preparation for the hearing. Counsel had also filed a reply, which the Court had been unable to review. In order to review the opposition and reply, the Court continued the hearing to 2/05/19. The Court ordered Counsel and Plaintiffs to meet and confer in an attempt to resolve their issues and to take the matter off calendar if they were successful.

Continued Hearing

The motion remains on calendar at this time. The Court has reviewed Plaintiffs’ opposition, which breaks into three categories:

Trial is in April of 2019, which gives Plaintiffs insufficient time to retain a new attorney and prepare the case for trial;

Discovery is cut off;

All problems with the case were caused by Counsel’s malpractice.

Discovery Cut Off

On 12/06/18, the parties executed a stipulation to continue the trial date from 1/07/19 to 4/23/19, and expressly made clear that all discovery and motion cut-off dates are continued to reflect the new trial date. Thus, discovery is not cut off.

Proximity to Trial and Breakdown in Relationship

The rules governing withdrawal have been liberally construed to protect clients. See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197; Chaleff v. Superior Court (1977) 69 Cal.App.3d 721; Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915. An attorney, either with the client’s consent or the court’s approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to the client’s interests. A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the client’s case. See CRPC 3 700(A)(2); Vann v. Shilleh, supra.

An attorney’s right to terminate the attorney-client relationship and withdraw from a case is not absolute. Vann v. Shilleh, supra, 54 Cal.App.3d 192; People v. Prince (1968) 268 Cal.App.2d 398. Having undertaken to represent a client, an attorney must continue doing so until the attorney is released by the client or by the court, or when ethical considerations mandate. An attorney must withdraw from representing a client if the attorney knows or should know that the client is bringing a legal action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person, or that continued employment will result in violation of the Rules of Professional Conduct or of the State Bar Act, or the attorney’s mental or physical condition renders it unreasonably difficult to carry out the employment effectively. Cal. Rules of Prof. Conduct, rule 3-700(B).

The decision whether to grant or deny an application for withdrawal is within the court’s discretion, and it does not abuse that discretion by denying the application on the ground that the attorney’s withdrawal would work injustice upon a third party. Hodcarriers, Bldg. and Common Laborers Local Union No. 89 v. Miller (1966) 243 Cal.App.2d 391; Heple v. Kluge (1951) 104 Cal.App.2d 461. On the other hand, when a client suspects and questions an attorney’s good faith, the attorney should be permitted to withdraw from the case, unless some very compelling reason exists for forcing the attorney to continue representing that client. Heple, supra.

In this case, the Court must weigh two competing factors in determining whether or not to permit withdrawal. On the one hand, trial in this case is scheduled for 4/23/19, only two and a half months after the hearing on this motion (three months from the original hearing date). On the other hand, Plaintiff’s own declaration makes clear that Plaintiffs suspect and question their attorneys’ good faith. See, for example, Plaintiff’s Declaration, ¶29, wherein he states, “Therefore, the last thing I would want is for these attorneys to represent us anymore. All I said, beginning immediately after I realized they had never intended to prepare for trial, is that they associate in an attorney who can and will handle a case as big as this one has turned out to be, since they obviously either cannot and/or will not do so themselves.”

Conclusion

The Court finds Plaintiff’s admission that he does not wish to have Counsel continue to represent him, coupled with Plaintiff’s repeated statements that he questions Counsel’s good faith, weigh in favor of granting the motion for relief. The Court notes that Counsel stated, on the record at the prior hearing, that he does not intend to pursue any lien against Plaintiffs’ potential recovery in this case.

The Court does not have the power or authority to order Plaintiffs’ attorneys to associate in a new attorney or locate a new attorney to represent Plaintiffs. Plaintiffs must undertake efforts to secure representation without the aid of their current attorneys.

The motion to be relieved is granted. Relief is effective upon filing proof of service of the final order on the motion.

Counsel is ordered to give notice.