Case Number: BC515366 Hearing Date: July 01, 2014 Dept: 34

SUBJECT: Motion to Be Relieved as Counsel

Moving Party: Counsel Rosendo Gonzalez of Gonzalez & Associates, PLC, attorney of record for defendant Lima’s Produce Inc. (“counsel”)

Resp. Party: None

Rosendo Gonzalez’s motion to be relieved as counsel for defendant is DENIED.

BACKGROUND:

Plaintiff commenced this action on 6/17/13 against defendant Lima’s Produce Inc. (“defendant”) for: (1) breach of contract; (2) open book account; (3) account stated; and (4) quantum meruit. Plaintiff alleges that defendant failed to pay for goods sold and delivered to defendant.

ANALYSIS:

An attorney moving to be relieved as counsel under California Code of Civil Procedure section 284(2) must meet the requirements set out in California Rules of Court, rule 3.1362. To comply with rule 3.1362, the moving party must submit the following forms: (1) Notice of Motion and Motion to be Relieved as Counsel; (2) Declaration in Support of Attorney’s Motion to be Relieved as Counsel; and (3) Order Granting Attorney’s Motion to be Relieved as Counsel. (Cal. Rules of Court, rule 3.1362(a), (c), (e).) The moving party must serve the aforementioned forms on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) Further, when the client is served by mail, the attorney’s declaration must show that the client’s address was confirmed within the last 30 days and how it was confirmed. (Ibid.)

Here, Counsel submits the mandatory forms. Counsel provides proof of service on plaintiffs and defense counsel.

The attorney in an action may be relieved at any time before or after judgment or final determination either upon consent of both client and attorney, or upon order of the court. (Code Civ. Proc., § 284.) A motion to be relieved as counsel under Code Civ. Proc., section 284, subd. (2) must comply with the requirements set forth in Cal. Rules of Court, rule 3.1362. Specifically, the accompanying 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).” (Cal. Rules of Court, rule 3.1362(c).)

Under California Rules of Professional Conduct, 3-700(C), “[i]f rule 3 700(B) [mandatory withdrawal] is not applicable, a member may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because: (1) The client . . . (d) by other conduct renders it unreasonably difficult for the member to carry out the employment effectively, or . . . (f) breaches an agreement or obligation to the member as to expenses or fees.”

Even if all of the requirements are met, “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.” (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.)

Counsel declares that he has had no communications with defendant since the commencement of this case in July 2013. Defendant’s principal, Cecilio Lima, has failed to respond to numerous written communications. Defendant presently owes a substantial amount of money in fees and costs to Counsel and the last payment was 7/25/13. Counsel declares that it is impossible to continue to represent defendant.

Counsel does not address whether his withdrawal would work an injustice or cause undue delay in the proceedings. This case has been pending for over a year and that trial is approximately six weeks from the date of the hearing on this motion. Counsel admits that he has been aware of the problems with defendant for nearly a year, and it is unclear why he waited so long to seek to withdraw.

Of particular concern to the Court is the fact that this Motion to Be Relieved as Counsel was filed on June 2, with the hearing date on the motion scheduled for July 1, 2014. Yet, in counsel’s application, he indicates that trial in this matter is scheduled for June 12 – i.e., before his motion to be relieved is heard.

The Court has already continued this trial once, from June 12 to Sept. 16, 2014. The Court is concerned that granting this motion would entail another continuance.

SUBJECT:
(1) Motion to compel responses to form interrogatories (set one);
(2) Motion to compel responses to requests for production (set one);
(3) Motion to deem requests for admissions admitted

Moving Party: Plaintiff Northern Feed & Bean of Lucerne, LLC

Resp. Party: None

Plaintiff’s discovery motions are DENIED.

BACKGROUND:

Plaintiff commenced this action on 6/17/13 against defendant Lima’s Produce Inc. (“defendant”) for: (1) breach of contract; (2) open book account; (3) account stated; and (4) quantum meruit. Plaintiff alleges that defendant failed to pay for goods sold and delivered to defendant.

ANALYSIS:

Plaintiff seeks to compel defendant’s responses to written discovery (form interrogatories and requests for production) and to deem requests for admissions admitted.

Responses to written discovery must be served within 30 days and if responses are not timely served, the responding party waives any objections thereto. (See Code Civ. Proc., §§ 2030.260, 2030.300, 2033.250, 2033.280.) For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, “[o]nce [a party] ‘fail[ed] to serve a timely response,’ the trial court had authority to grant [opposing party’s] motion to compel responses.” (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

California Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., § 2033.250(a).) If the party fails to serve a timely response, “the party to whom the requests for admission are directed waives any objection to the requests.” (Code Civ. Proc., § 2033.280(a).) The requesting party may then “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanction under Chapter 7.” (Code Civ. Proc., § 2033.280(b).) A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (Code Civ. Proc., §2033.280(b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395 [disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983]; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 8:1370.) Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (Code Civ. Proc., §2033.280(c); Weil & Brown, ¶ 8:1375.)

Plaintiff served its written discovery by mail on 1/21/14. (See Chow Decl., ¶ 2, Exh. A.) The Court notes that the proof of service states that the documents were served directly to defendant, even though defendant had appeared by an attorney. Therefore, the service was not proper. (See Code Civ. Proc., § 1015.) Plaintiff fails to establish that defendant’s counsel was ever served with the discovery. The Court further notes that these motions are unopposed, which might be an indication that they were not received by plaintiff’s counsel.

Because plaintiff has not shown that it properly served the discovery requests, plaintiff’s motions are DENIED.