BC492637

Moving Party: Counsel Perry C. Wander, attorney of record for defendant The Original Inc. (“Counsel”)

Resp. Party: None

TENTATIVE RULING:

Counsel’s unopposed motion is DENIED because 1) counsel fails to show that the notice, declaration, and proposed order were served on the parties in this action and 2) because the Court has not been convinced that withdrawal will not unduly delay this action.

BACKGROUND:

Plaintiff commenced this action against defendant on 9/25/12, for: (1) breach of contracts; (2) breach of contracts; (3) open book account; (4) account stated; (5) goods sold and delivered; (6) conversion; (7) claim and delivery; and (8) unjust enrichment. The complaint pertains to business transactions wherein defendant purchased goods from plaintiff and failed to pay all amounts due and owing.

On 11/28/12, defendant filed a cross-complaint against plaintiff for: (1) fraud; (2) breach of contract; (3) recission; (4) breach of implied covenant of good faith and fair dealing; and (5) negligent interference with prospective economic advantage.

On 6/28/13, defendant filed a first amended cross-complaint, without first obtaining leave to do so. On 2/20/14, the Court denied defendant’s motion for leave to amend, without prejudice.

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 all of the mandatory forms. Counsel fails to provide proof of service of these documents.

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 there has been a breakdown in the attorney-client relationship because he has been unable to obtain the client’s cooperation regarding discovery, trial costs, and fees; the client has refused to respond to communications; and the client refuses to assist counsel in preparation for the trial. (Wander Decl., ¶ 2.)

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 if the withdrawal will work an injustice or cause undue delay. The Court notes that the trial in this action is scheduled for just over two weeks after the hearing on this motion. It appears that the trial would likely need to be continued if the motion is granted.

counsel’s motion to be relieved as counsel of record for The Original Inc. is DENIED because counsel fails to provide proof of service and because the Court has not been convinced that withdrawal will not unduly delay this action.