ACCREDITED SURETY AND CASUALTY COMPANY, INC., A CORPORATION VS INFINITY DATA NETWORKS, INC., ET AL.

Tentative Rulings

Case Number: 19STLC01556    Hearing Date: September 30, 2020    Dept: 25

HEARING DATE: Wed., September 30, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Accredited Surety & Casualty Co. Inc. v. Infinity Data Networks, Inc., et al.

CASE NUMBER: 19STLC01556 COMPL. FILED: 02-14-19

NOTICE: NO (hearing) DISC. C/O: 09-26-20

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Defendant/Cross-Complainant Infinity Data Networks Inc.’s Counsel Kevin R. Carlin

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2); CRC rule 3.1362)

TENTATIVE RULING:

Defendant/Cross Complainant Infinity Data Networks, Inc.’s Counsel Kevin R. Carlin’s Motion to be Relieved as Counsel is GRANTED ON THE CONDITION THAT, before the hearing, Counsel files a proof of service demonstrating he gave Defendant Infinity proper notice of the July 10^th Order scheduling this hearing. If granted, the proposed order will be signed at the hearing. “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.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Defendant Infinity] has been filed with the court.” (Id.)

Otherwise, the Motion will be CONTINUED TO NOV 17, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Counsel must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of September 28, 2020 [ ] Late [X] None

REPLY: None filed as of September 28, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On February 14, 2019, Plaintiff Accredited Surety and Casualty Company, Inc. (“Plaintiff”) filed this action for indemnity, reimbursement, and interpleader against Defendants Infinity Data Networks, Inc. dba Infinity General Contractors Group (“Infinity”), Martin Ahlgrim (“Ahlgrim”), Brandon Joseph Bujold, individually and dba TMK Construction (“Bujold”), and Brian Gotterer (“Gotterer”).

Following Defendant Infinity and Defendant Ahlgrim’s failure to file a responsive pleading, default was entered against them on May 31, 2019.

Plaintiff filed a motion to deposit and for discharge of stakeholder on June 12, 2019. That motion was granted on September 11, 2019 on the condition that within thirty (30) days, Plaintiff deposit surplus funds of $13,000.00 with the Court. (9/11/19 Minute Order.) Funds of $13,000.00 were deposited with the Court on October 8, 2019.

On November 6, 2019, the Court signed an order pursuant to the parties’ stipulation that the default against Infinity and Ahlgrim be set aside and that they file an answer within 20 days of the order. (11/6/20 Order.) On November 27, 2019, Defendants Infinity and Ahlgrim filed a joint general denial. Defendant Infinity filed a Cross-Complaint against Plaintiff, Defendant Bujold, and Defendant Gotterer on December 4, 2019. Defendant Gotterer also filed a Cross-Complaint against Infinity on January 2, 2020 for breach of contract and negligence.

On July 10, 2020, Defendant Infinity’s Counsel Kevin R. Carlin (“Counsel”) of the Carlin Law Group, APC filed the instant Motion to be Relieved as Counsel (the “Motion”). The Court scheduled the Motion for hearing for September 30, 2020 at 10:00 a.m. and ordered Counsel to give notice. (7/10/20 Minute Order.)

To date, no opposition has been filed.

1. Legal Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc., § 284(2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362(a), (c), (e).)

In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either:

(A) The service address is the current residence or business address of the client; or

(B) 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.

(Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).)

1. Discussion

Defendant Infinity’s Counsel seeks to be relieved because it has refused to consent to substitution, is not adequately or timely communicating with Counsel, and because there is a conflict of interest between the attorney and client (MC-052, ¶ 2.) Counsel also states that Defendant Infinity has not complied with its financial obligation to Counsel such that continued representation of Defendant Infinity will create severe economic hardship on Counsel. (Id.) Counsel further states that he attempted to resolve the issues noted herein with Defendant Infinity’s president, Alex Rodriguez, between May 26, 2020 and July 8, 2020 without success. (Id. at ¶ 7.) Counsel served Defendant Infinity with the Motion, supporting declaration, and proposed order by mail at Defendant’s current address, which was confirmed by telephone at most thirty (30) days before filing this Motion. (Id. at ¶ 3.)

The Court is satisfied with Counsel’s reasons for seeking to be relieved. Although the Court is inclined to grant the Motion, Counsel did not give Defendant Infinity notice of the Court’s July 10, 2020 Order scheduling this hearing as ordered. (7/10/20 Minute Order.) Indeed, Counsel’s proof of service filed on July 16, 2020, demonstrates Plaintiff, Defendant Gotterer, and Defendant Bujold were served with a notice of this hearing, but not Defendant Infinity.

However, in the interest of judicial economy, the Motion is GRANTED ON THE CONDITION THAT, before the hearing, Counsel files a proof of service demonstrating Defendant Infinity was given adequate notice of this hearing. Otherwise, the hearing will be CONTINUED.

1. Conclusion & Order

For the foregoing reasons, Defendant/Cross Complainant Infinity Data Networks, Inc.’s Counsel Kevin R. Carlin’s Motion to be Relieved as Counsel is GRANTED ON THE CONDITION THAT, before the hearing, Counsel files a proof of service demonstrating he gave Defendant Infinity proper notice of the July 10^th Order scheduling this hearing. If granted, the proposed order will be signed at the hearing. “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.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Defendant Infinity] has been filed with the court.” (Id.)

Otherwise, the Motion will be CONTINUED TO NOV 17, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Counsel must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Defendant Infinity’s Counsel is ordered to give notice.