Moving Party: Counsel Michael D. McCaffrey, attorney of record for Brooke E. Barnes, Bridget L. Barnes, Brittany L. Barnes, and BABBB LLC (“counsel”)

Resp. Party: None

Michael D. McCaffrey’s unopposed motion to be relieved as counsel for BABBB LLC is DENIED because counsel fails to provide proof of service of the documents on the client.

As to McCaffrey’s unopposed motions to be relieved as counsel for the other three clients, the court is concerned that granting such a motion would result in a delay in the trial. The court would like to hear from counsel and/or his clients on this issue at the hearing on this motion.

BACKGROUND:

Plaintiffs commenced this action on July 28, 2010. Following multiple demurrers, plaintiffs filed their third amended complaint (“TAC”). Defendants’ demurred to the TAC and on October 4, 2012, the Court sustained the demurrers in part and overruled in part. Plaintiffs then filed a fourth amended complaint (“4AC”) on October 18, 2012, alleging causes of action against defendants for: (1) express trust; (2) resulting trust; (3) intentional fraudulent transfer; (4) constructive fraudulent transfer; (5) constructive fraudulent transfer; (6) tortious acts to hinder, deter and defraud creditor; (7) express trust; and (8) resulting trust.

Plaintiffs allege that on December 11, 2009, the Los Angeles County Superior Court entered judgment in favor of plaintiffs and against eight of the named defendants, jointly and severally, in the total sum of $28,957,691.88. (4AC ¶ 18.) In the underlying judgment, the Superior Court, the Honorable Charles F. Palmer presiding, stated that each of the underlying judgment debtors was the alter ego of defendant Dorn-Platz Properties, Inc.. (Id., ¶ 19.) Plaintiffs allege that other named defendants are alter egos of the underlying judgment debtors. (Id., ¶ 20.)

On 3/7/13, the Court overruled the demurrer of defendants Lobar, Daniel Barnes, Raymond Barnes, Henry E. Barnes Inc., and AGBB LLC to the sixth cause of action in the fourth amended complaint. The Court sustained the demurrer of defendants Alicia Azpell, Megan Galletly, Samantha Galletly, Suzanne Galletly, AMSS LLC, and Dorn Platz Management Inc. to the fourth cause of action, without leave to amend. The Court sustained the demurrer of Dorn Platz Management Inc. to the fifth cause of action, without leave to amend. The Court overruled the demurrers of AMSS LLC and Dorn Platz Management Inc. to the third cause of action. The Court overruled the demurrers of Alicia Azpell, Megan Galletly, Samantha Galletly, Suzanne Galletly, and AMSS LLC to the fifth cause of action. The Court denied the motions to strike.

ANALYSIS:

In four separate motions, Counsel moves to be relieved as counsel of record for Brooke E. Barnes, Bridget L. Barnes, Brittany L. Barnes, and BABBB LLC

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 all of the mandatory forms. However, while the proofs of service indicate service on the three individual Barnes, there is no indication of service on defendant BABBB LLC.

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.”

Counsel declares that his clients have breached the retainer agreement, and that the clients have continued to breach the agreement despite requests for compliance. (Decls., ¶ 2.) Counsel declares that the clients have failed to substitute new counsel. (Ibid.)

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.)

It is unclear whether a withdrawal at this time would result in prejudice to the parties. The Court notes that this case is almost four years old, and the trial is less than two months away. At the same time, the Court notes that the instant motion is unopposed.

As indicated above, the Court would like to hear from counsel and/or his clients on these issues.