CONSTANCE A SHONAFELT, AS TRUSTEE OF THE SHONAFELT FAMILY TRUST, ET AL. VS CLASSIC PROPERTY MANAGEMENT, INC., A CALIFORNIA CORPORATION

Tentative Rulings

Case Number: *******0341    Hearing Date: November 17, 2020    Dept: A

# 6. Constance A. Shonafelt, et al., v. Classic Property Management, Inc., et al.

Case No.: *******0341

Matter on calendar for: motion to be relieved as counsel

Tentative ruling:

1. Background

This action arises out of a fire that occurred in a condominium unit owned by Plaintiffs. Plaintiffs allege that manager Defendants negligently hired and supervised the worker Defendant Williams, and Williams negligently installed a microwave resulting in the fire. Plaintiffs further allege that manager Defendants failed to repair the damage caused by the fire. On December 6, 2019, Plaintiffs filed this action against Defendants. Plaintiffs filed the operative Second Amended Complaint on March 25, 2020 alleging causes of action for:

1. Negligence;

2. Breach of Contract;

3. Breach of Implied Warranty of Good Faith and Fair Dealing;

4. Violation of Business and Professions Code ;; 7031(b)/7118; and

5. Declaratory Relief.

   J.Paul Lewis and Steven Scordakis, counsel for Defendant Steven A. Hemingway dba Classic Rentals, now move to be relieved as counsel. The motion is opposed by Plaintiffs.

   For the reasons set forth below, the Court grants the motion contingent on counsel’s filing a proposed order on form MC-053 that also notes the March 24, 2021 post-mediation status conference.

1. 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 Rules of Professional Conduct, Rule 1.16, 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.

1. Analysis

   Counsel has provided mandatory form MC-052 and complied with the requirements of Rule 3.1362.

   Counsel declares the following: “J. Paul Lewis, Esq., Steven Scordakis, Esq. and the law firm of Wood, Smith, Henning & Berman LLP seeks to withdraw as counsel for Steven A. Hemingway, individually, and doing business as Classic Rentals based upon California Rules of Professional Conduct 1.16(b)(5). Mr. Hemin[g]way's insurance carrier, Hiscox, is asserting a $25,000 policy sub-limit for defense and indemnity, which is now exhausted. Hiscox will not pay defense counsel's bills beyond the $25,000 sub-limit and Mr. Hemin[g]way has failed to execute Wood, Smith, Henning & Berman LLP's retainer agreement or pay the required retainer since it was provided to him on August 27, 2020. No prejudice will be suffered by Mr. Hemingway because the current trial date is July 19, 2021 and Mr. Hemingway has ample time to retain new counsel if he desires. No written discovery is currently pending and no depositions are currently on calendar in this matter.”

   Plaintiffs oppose, arguing that the Motion should be denied because Hemingway’s insurance carrier, Hiscox, is attempting to wash its hands of this action and evade its duty to cover, defend and indemnify its policyholder within the policy limits.

   In reply, counsel argues that Plaintiffs are arguing the merits of the case and the motion to withdraw may be properly granted as there is a conflict of interest and Defendant is not paying attorney’s fees and costs. Counsel states that an actual conflict of interest now exists based upon ongoing conflicted directions and instructions being provided by Hemingway and Hiscox to it.

   The Court finds counsel’s declaration sufficient to grant withdrawal and does not find any prejudice to the parties by withdrawal. However, counsel has not provided the proposed order on form MC-053. Further, counsel has not provided notice of the March 24, 2021 post-mediation status conference.

   Accordingly, the motion is granted contingent on counsel filing a proposed order on form MC-053 that also notes the March 24, 2021 post-mediation status conference.

2. Ruling

   The motion to be relieved as counsel is granted contingent on counsel filing a proposed order on form MC-053 that also notes the March 24, 2021 post-mediation status conference. The order becomes effective upon filing of proof of service of the order on the client.

   Next dates:

   Notice: