CASE UPDATE - Motion to Withdraw as Counsel GRANTED!
Counsel for Plaintiff/Cross-Defendant MEC Incorporated, dba Seergate, Inc. and Cross-Defendant Edward Starrs--Joseph M. ElGuindy and Ryan N. Meyer of the firm ElGuindy, Meyer & Koegel, APC (“EMK Lawyers”)--seek to be relieved as counsel.
The motion is ruled upon as follows.
Argument
EMK Lawyers seek to be relieved on counsel on the basis that their clients have failed to make payments for legal fees “in quite some time” and currently owe over $260,000. The motion states “[t]he result of all the foregoing is a breakdown of our relationship and precipitates this unfortunate motion.”
Defendant/Cross-Complainant Kenneth Maciora (“Maciora”) opposes the motion on the basis that Defendants/Cross-Complainant will be severely prejudiced if the motion is granted “until the outstanding issues are resolved.” Maciora challenges whether Edward R. Starrs and My ECheck were properly served, citing Code of Civil Procedure sections 416.10 and 416.20, which relate to service of summons. Maciora alleges that, during the course of discovery, he was provided with a different mailing address for Edward Starrs. Additionally on the issue of service, Maciora alleges that EMK Lawyers have not complied with California Rule of Court 3.1362(d), which requires that the service address is the current residence or business address of client or 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 filing the motion to be relieved as counsel. Maciora argues that EMK Lawyers should not be relieved as counsel until after pending motions are heard on May 29 and May 30, 2019, in part because there are outstanding sanctions requests against the Mr. ElGuindy and Mr. Meyer personally. Additionally, Maciora alleges the motion is incomplete, as an additional attorney, Ryan Hanlon, is an attorney of the same firm, has appeared in this case, but is not listed in the motion. Maciora argues My ECheck cannot represent itself and it is unlikely that it will be able to retain replacement counsel. Additionally, Maciora argues that his ability to serve Edward Starrs is “severely compromised” until Mr. Starrs provides a valid and verifiable residential address. Previously, EMK Lawyers informed Maciora that Mr. Starrs could be reached through counsel.
On reply, EMK Lawyers argue that My ECheck and Mr. Starrs were appropriately served, distinguishing the cited Code of Civil Procedure sections on the basis that they apply to service of summons and not a motion to be relieved as counsel. Rather, California Rule of Court 3.1362(d) requires that a motion to be relieved as counsel be served by “personal service, electronic service, or mail.” EMK Lawyers attach the supplemental declaration of Mr. Meyer, reflecting that the clients were served at the last known address provided to the lawyers. (Meyers Supp. Decl. ¶ 3.) In addition to mailing the notice, the lawyers also sent notice of the motion by electronic mail to the clients and “EMK Lawyers has been in routine contact with the Clients and advised them repeatedly of the pending Motion as well as the ramifications of the Court’s granting of the relief sought. [Meyer Supp. Decl. ¶¶ 3-4.] It is EMK Lawyers’ understanding that the Clients do not oppose the Motion, despite having full knowledge of the same. [Id. ¶ 5.]” (Reply at 3.) EMK Lawyers argue that the pending motions will be not be affected because “[t]ypically, the Court will set the effective date of withdrawal as the day the proof of service of the entered order is served on the client (usually 10 days after the order is issued)” so EMK Lawyers will still be counsel on the pending motions set for May 29 and May 30, 2019. EMK Lawyers argue that their clients will need to seek replacement counsel and their difficulty in doing so is not cause to “force” EMK Lawyers to continue to represent them. (See Thomas G. Ferruzzo, Inc. v. Superior Court (1980) 104 Cal.App.3d 501,504. (“An attorney may be allowed to withdraw without offending the rule against corporate self-representation.”).) EMK Lawyers argue there is no undue prejudice to their clients by allowing them to withdraw at this time. EMK Lawyers argue the motion is complete, as its clients retain them through two of its partners, Joseph ElGuindy and Ryan Meyer. EMK Lawyers contend that it is not their obligation to update the Court and parties of their clients’ current address, but that this is the obligation of their clients and reflected in paragraph 12 of the proposed order.
Conclusion
The Court finds that EMK Lawyers have complied with the requirements to withdraw as counsel and the motion is GRANTED. The Court will sign the proposed order.EMK Lawyers’ objections to the Declaration of Kenneth Maciora are sustained.
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