Case Number: TC029052 Hearing Date: February 05, 2019 Dept: A

# 10. Roberto Fourcade v. HD Supply Construction

Case No.: TC029052

Matter on calendar for: motion to be relieved as counsel; CMC; OSC re: failure to prosecute

Tentative ruling:

I. Background

Plaintiff Roberto Fourcade (dba First Source Decorative Plumbing) bought concrete topping compound from defendant HD Supply Construction Supply, Limited Partnership. Fourcade alleges the topping compound was defective. The First Amended Complaint (“FAC”) alleges the following:

(1) Breach of written contract

(2) Breach of implied covenant of good faith and fair dealing

(3) Breach of fit and finish warranties

(4) Strict products liability

(5) Fraud and negligent misrepresentation

Plaintiff’s counsel, Kimberly Manning, now moves the Court to withdraw.

For the reasons set forth below, the Court grants the motion.

II. Standard

California Code of Civil Procedure § 284(2) provides that “[an] attorney in an action or special proceeding may be changed at any time before or after judgment or final determination…upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” Additionally, attorneys seeking to be relieved as counsel must comply with California Rule of Professional Conduct 3-700 in seeking to be relieved.

A motion to be relieved as counsel must comport with California Rules of Court Rule 3.1362. The Rule requires the notice of motion and motion to be on the Judicial Council of California form MC-051, and the declaration to be on form MC-052. The proposed order must be form MC-053.

III. Analysis

Counsel has submitted the required forms. She states that the attorney-client relationship has broken down. Plaintiff Roberto Fourcade has failed to make payments to counsel for the past six months. Counsel is a sole practitioner who offers lower billing rates, but can no longer afford to represent Fourcade.

The motion to be relieved is granted.

IV. Ruling

The motion to be relieved is granted, effective upon filing of the proof of service on the client of the order.

Next dates: FSC 3/18/19; Jury trial 3/25/19