Case Number: BC538510 Hearing Date: March 15, 2018 Dept: 47

John A Addeo III, et al. v. Steven W. Sutcliffe

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Lawrence M. Markey Jr. APC, attorney for Plaintiff J.A. Smokes, LLC

RESPONDING PARTY(S): Plaintiff John A. Addeo III

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant has breached an oral partnership agreement pertaining to a business selling electronic cigarettes, J.A Smokes, LLC. Defendant has allegedly wrongfully taken possession of the partnership’s inventory and assets and has misappropriated funds and revenue of the partnership, as well as wrongfully retaining sole access and control over bookkeeping and other accounting records and failing to pay taxes for the business. Defendant has also retained sole access and control over email accounts, web sites, blogs and other platforms relating to the business. Defendant has also allegedly caused the cancellation of the business’ sales permit by failing to pay applicable taxes.

Lawrence M. Markey Jr. APC moves to be relieved as counsel for Plaintiff J.A. Smokes, LLC.

TENTATIVE RULING:

Counsel and the parties are to appear and argue.

DISCUSSION:

Motions To Be Relieved As Counsel

Lawrence M. Markey Jr. APC moves to be relieved as counsel for Plaintiff J.A. Smokes, LLC. On January 31, 2018, a substitution of attorney form was filed whereby attorney Markey was substituted out as counsel, with Plaintiff John Addeo now representing himself in pro per.

California Rules of Court, Rule 3.1362 requires that the following Mandatory Judicial Council forms be filed for a motion to be relieved as counsel: Notice of Motion and Motion to Be Relieved as Counsel–Civil (form MC-051); Motion to Be Relieved as Counsel–Civil (form MC-052); and Order Granting Attorney’s Motion to Be Relieved as Counsel–Civil (form MC-053). See CRC Rule 3.1362(a), (c), (e). These three forms must be served on must be served on the client and on all other parties who have appeared in the case. Rule 3.1362(d).

The Court may issue an order allowing an attorney to withdraw from representation, after notice to the client. CCP § 284(2). An attorney may withdraw with or without cause as long as the withdrawal would not result in undue prejudice to the client’s interest – i.e., counsel cannot withdraw at a critical point in the litigation because that would prejudice client, but can withdraw otherwise. Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915. The court has discretion to deny an attorney’s request to withdraw where such withdraw would work an injustice or cause undue delay in the proceeding; but the court’s discretion in this area is one to be exercised reasonably. Mandell v. Superior Court (1977) 67 Cal.App.3d 1.

Counsel represents that the client has been suspended by the Secretary of State due to the inaction of the members and controlling membership has not provided clear direction necessary to continue to represent the client. Declaration, ¶ 2. Plaintiff John A. Addeo III opposes this motion to withdraw on the ground that Defendant has caused JA Smokes to become suspended by the California Secretary of State, and to permit JA Smokes’ counsel to withdraw on this basis would be to give Defendant a strategic and calculated advantage.

A non-jury trial is currently set for April 16, 2018 which is only a month away. There is clear prejudice to the entity client in permitting counsel to withdraw at this stage of the proceedings, especially because the entity client cannot represent itself at trial. Moreover, the fact that the entity client is suspended and has not given counsel clear instruction is not necessarily a persuasive reason to permit counsel to withdraw a month before trial. Counsel is expected to proceed to take steps to protect the client’s interest, for instance, by bringing a motion to continue the trial.

A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758-759 [263 Cal.Rptr. 377, 781 P.2d 1]), or by withdrawing at a critical point and thereby prejudicing the client’s case. (Rules Prof. Conduct, rule 3-700(A)(2); Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197 [126 Cal.Rptr. 401].)

Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.

This court understands that counsel for the corporate Plaintiff appears to be stuck between a rock and a hard place. It will hear oral argument as to what is the fairest way to proceed in these circumstances. This court is interested as to whether the corporate plaintiff is, in fact, a necessary party, or could the individual plaintiff proceed on all causes of action and/or remedies. If not, to what extent?