Case Number: KC069018 Hearing Date: March 01, 2018 Dept: J

Re: Zhu Zhou, et al. v. Tony Yu, etc. (KC069018)

MOTION TO BE RELIEVED AS COUNSEL (X2)

Moving Party: Tom C. Tsay, counsel for defendants East Mission 8 Investment, Inc., and South Fremont 8 Investment, Inc.

Respondents: No timely opposition filed (due 2/15/18)

POS: Moving unclear[1]

Plaintiffs allege that they are Chinese residents who decided to look into the California real estate investment market, with the intention of locating an upscale residential property, purchasing same and then either living in it or leasing it. Plaintiffs contend that they entered into an oral contract with Tony Xz Yu (“Yu”) wherein Yu would locate a suitable property, negotiate on their behalf and then arrange the paperwork for the purchase of same. Yu thereafter located the residential property located at 3068 Windmill Drive in Diamond Bar (“subject property”) for their purchase, but allegedly misrepresented the amount of the sales price, real estate transfer fees and fees for build-ins and fixtures. Plaintiffs further allege that an unknown person forged their names on a grant deed transferring the Subject Property to Zhidong Li (“Li”). Li subsequently deeded the Subject Property back to plaintiffs. The complaint was filed on 1/19/17. The First Amended Complaint was filed 3/14/17.

On 7/7/17, plaintiffs dismissed Brenda Fonmin and John L. Fonmin, with prejudice. The Second Amended Complaint, deemed filed 12/1/17, asserts causes of action therein for:

Fraud

Identity Theft

Breach of Fiduciary Duty

Negligence

Violation of the Racketeer Influenced and Corrupt Organizations Act

Negligence

Aiding and Abetting

On 12/5/17, Defendants East Mission 8 Investment Inc. and South Fremont 8 Investment, Inc. filed their cross-complaint, asserting causes of action therein for:

Equitable Indemnity

Quantum Meruit

A Case Management Conference is set for 3/1/18.

Tom C. Tsay (“Tsay”) of the Law Offices of Tom C. Tsay, Inc. seeks to be relieved as counsel of record for Defendant East Mission 8 Investment, Inc. and South Fremont 8 Investment, Inc. (“Clients”).

“A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel–Civil (form MC-051).” Rules of Court Rule 3.1362(a). “Notwithstanding any other rule of court, no memorandum is required to be filed or served with a motion to be relieved as counsel.” Rules of Court Rule 3.1362(b). “The motion to be relieved as counsel must 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 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).” Rules of Court Rule 3.1362(c).

“The notice of motion and motion, the declaration, and the proposed order must 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 must 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 before the filing of the motion to be relieved. As used in this rule, ‘current’ means that the address was confirmed within 30 days before 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 is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.” Rules of Court Rule 3.1362(d).

“The proposed order relieving counsel must be prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel–Civil (form MC-053) and must be lodged with the court with the moving papers. The order must 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 must 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.” Rules of Court Rule 3.1362(e).

Tsay represents that “[t]he specific facts which give rise to the motions are confidential and required to be kept confidential pursuant to Business and Professions Code § 6068(e), rule 3-100(A), California Rules of Professional Conduct, and by the attorney-client privilege (Evid. C., §§ 950 et seq.) In the event that this court desires further information to ascertain the good faith basis for this motion and for withdrawal, it is respectfully requested that the court have an in camera hearing outside of the presence of all other parties so that the specific facts demonstrating good cause for this withdrawal may be demonstrated to the court.”

Tsay represents that he has served the Clients by mail at their last known address with copies of the motion papers served with the declarations and that he has confirmed, within the past 30 days, that the address is current, via mail, return receipt requested. The court notes, however, that the Clients are not listed on the proofs of service accompanying the motions. All other requirements of Rules of Court Rule 3.1362 enumerated above have been met.

The motions, then, are granted, contingent upon counsel’s production of proofs of service reflecting CCP § 1005(b) compliant notice of the motion upon the Clients on or before the time of the hearing and effective upon the filing of proofs of service showing service of the signed orders upon the Clients.

[1] The clients’ addresses are not listed on the proofs of service accompanying the motions. The proposed orders reflect that the clients’ current address is 802 E. Mission Rd., San Gabriel, CA 91776.