CASE NAME: Koeth, et al. v. Sunbelt Home Improvement Loans, et al.
CASE NO.: BC483955
HEARING DATE: 02/17/2015
DEPARTMENT: 37
CALENDAR NO.: 6
TRIAL DATE: 03/30/2015
NOTICE: OK
SUBJECT: Motion to be Relieved as Counsel (x3)
MOVING PARTY: Defendants’ Counsel, Daniel A. Nassie, Esq.
RESP. PARTY: None

TENTATIVE RULING

Motion to be Relieved as Counsel is granted.

STATEMENT OF THE CASE

Chester Koeth and Charlene Koeth (“Plaintiffs”) commenced an action against Sunbelt Home Improvement Loans d/b/a Sunbelt Financial Services, Richard Mandell, Nicholas Falcone, individually and as trustee, Sylvia Falcone individually, and as trustee, and CitiMortgage, Inc. (“Defendants”). Plaintiffs’ Second Amended Complaint (SAC) alleges causes of action for: (1) fraud; (2) breach of contract; (3) breach of fiduciary duty; (4) fraudulent conveyance; (5) breach of written contract by third party beneficiary; (6) breach of contract; (7) fraud; (8) declaratory relief; and (9) accounting. Plaintiffs allege that they were the victims of a loan modification scam perpetuated by Defendants, who failed to pay off the existing loan and, instead, pocketed the loan proceeds.

ANALYSIS

Counsel Daniel A. Nassie, Esq. moves to be relieved as counsel for defendants: (1) Sylvia Falcone, individually, and as Trustee of the Riviera Personal Residence Trust; (2) Nicholas aka Nick Falcone, individually, and as Trustee of the Riviera Personal Residence Trust; and (3) Sunbelt Home Improvement Loans dba Sunbelt Financial Services because of a breakdown in the attorney/client relationship. Counsel Nassie declares that the defendants fail to communicate with counsel and fail to pay on-going court fees and costs.

The motions were submitted on Judicial Council forms MC-051 and MC-052 which are mandatory, pursuant to CRC 3.1362 (a) and (c). The moving attorney has also lodged the required Judicial Council form order for relief from his duties as counsel, Form MC-053. (See CRC 3.1362 (e).)

The notice of motion and motion must be served on the client and on all other parties who have appeared in the case. (CRC 3.1362(d).) The attached proofs of service and the motions indicate all parties have been served. The motions also indicate counsel’s clients were served by mail at their last known addresses. (MC-052 Decl. ¶ 3.) The declaration counsel confirmed the addresses, within the last 30 days by conversations with the clients. (MC-052 Decl. ¶ 3b.)

Regarding the reason counsel is seeking withdrawal, the declaration offered in MC-052 states:

“Failure of client to communicate and failure to pay on-going fees and costs.”

CCP § 284 provides that upon order of the court, the attorney in an action or special proceeding may be changed at any time before or after judgment or final determination upon the application of either the client or attorney, after notice from one to the other. (CCP § 284.) The attorney may request withdrawal pursuant to Rule of Professional Conduct 3-700(B)(2)(d) when the client’s conduct renders it unreasonably difficult for the attorney to carry out the employment effectively. (Cal. Rules of Prof. Conduct 3-700.) If the attorney is the moving party, the right to withdraw is conditioned on proper notice and a showing of why a court order is required (i.e., why substitution by mutual consent was not obtained). (CRC Rule 3.1362.)

An attorney should be permitted to withdraw unless prejudice would result or some other compelling reason for forcing the attorney to continue exists. (People v. Prince (1968) 268 Cal. App. 2d 398, 406.) Thus, counsel cannot withdraw at a critical point in the litigation because that would prejudice the client. (See, e.g., Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.)

Attorneys seeking to be relieved as counsel must comply with California Rule of Professional Conduct 3-700 in seeking to be relieved. Rule 3-700(C) states reasons under which an attorney is permitted, but not required to withdraw from the representation of their client. Rule 3-700 (c)(1)(d) allows counsel to withdraw where the client by other conduct renders it unreasonably difficult for the member to carry out the employment effectively, and (c)(1)(f) allows counsel to withdraw where the client breaches an agreement or obligation to the member as to expenses or fees.

Here, the moving attorney, Nassie, has established sufficient grounds to be relieved as counsel based on the breakdown in communications in the relationship with his clients. Indeed, the clients have not submitted any opposition to the motion.

While Nassie’s declaration does not state whether or not he sought his clients’ consent to withdraw before bringing this motion (CRC 3.1362(c).), the lack of an opposition appears to make this moot.

The only remaining issue concerns the upcoming trial date and whether the late stage of the proceedings should preclude the withdrawal. The final status conference is on March 19, 2015, approximately one month away, and trial is scheduled to begin shortly after on March 30, 2015. Since there has been no opposition by the clients to the withdrawal, the court does not conclude that withdrawal should be denied on that basis. If the clients are not in communication with counsel, as is asserted in the moving declaration, then it is difficult to see what the continued representation could reasonably accomplish. The Court will entertain a request from the clients for time to secure new counsel, should such a request be made.

Consequently, Counsel Nassie’s motions to be relieved as counsel are GRANTED.