Case Number: KC066203 Hearing Date: January 26, 2015 Dept: J
Re: HMA, Inc. v. Allan J. Hardy, etc., et al. (KC066203)

MOTION TO BE RELIEVED AS COUNSEL

Moving Parties: C.D. Michel and Joshua Robert Dale, Counsel for Defendants Allan Hardy and Hargan Investments, Inc.

Respondents: No timely opposition filed

This is an action to impose alter ego liability, to avoid and annul fraudulent transfer under the Uniform Fraudulent Transfer Act, and to recover improper corporate distributions. The Complaint, filed on 7/26/13, asserts causes of action for:

1. Imposition of Alter Ego Liability
2. Avoidance of Fraudulent Transfer
3. Improper Corporate Distributions

A Jury Trial is set for 2/10/15.

C.D. Michel and Joshua Robert Dale, counsel for Defendants Allan Hardy and Hargan Investments, Inc. (“Clients”), move to be relieved as counsel of record.

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).)

Although the proof of service accompanying the motion does not show that the motion has been served on counsel’s clients, attorney Joshua Robert Dale represents in his declaration that he served the clients with copies of the moving papers by mail and that he has confirmed within the past 30 days that the address is current by confirming receipt of correspondences sent to clients during the last thirty days. However, that declaration does not state the date that the clients were served by mail so that the court can determine compliance with CCP § 1005 regarding timely service.

Mr. Dale further represents that the attorney-client relationship deteriorated due to the Clients’ failure to cooperate and communicate with counsel, and that on December 15, 2014, Mr. Hardy discharged counsel. Although the court is sympathetic with counsel’s current predicament, trial is only two weeks away and all parties would be prejudiced by allowing counsel to be relieved at this point. If moving counsel present a proof of service showing timely service of the motion and accompanying documents at or before the hearing of the motion, the court is willing to grant the motion as to the individual defendant Allan J. Hardy. However, the court is not willing to grant the motion as to corporate defendant Hargan Investments, Inc. in the absence of new counsel substituting in to represent the corporation.