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MC-052
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): FOR COURT USE ONLY
JESSE B. MCKEITHEN, #274335
JONATHAN MCNEIL WONG, #112224
DONAHUE FITZGERALD LLP
1999 Harrison St., 26th Flr. Oakland, CA 94612
TELEPHONE NO.: (510)451-3300 FAX NO.: (510)451-1527
ATTORNEY FOR (Name) : Defendants
NAME OF COURT: ALAMEDA COUNTY SUPERIOR COURT
STREET ADDRESS: 1225 Fallon Street
MAILING ADDRESS:
CITY AND ZIP CODE: Oakland, CA 94612
BRANCH NAME:
CASE NAME: CASE NUMBER:
Garcia v. Mistry, et al. RG21087478
HEARING DATE: 09/08/22 #655673771742
DEPT.: 22 TIME: 2:30 PM
DECLARATION IN SUPPORT OF ATTORNEY'S
BEFORE HON.: Jeffrey Brand
MOTION TO BE RELIEVED AS COUNSEL-CIVIL
DATE ACTION FILED: February 2, 2021
TRIAL DATE: August 8, 2022
1. Attorney and Represented Party. Attorney (name): Jesse B. McKeithen, Jonathan McNeil Wong
is presently counsel of record for (name of party): Bharat Mistry, Shilapaben Mistry aka Shilpa
in the above-captioned action or proceeding. Mistry, Shivaa LLC, and Shree Shakti LLC
2. Reasons for Motion. Attorney makes this motion to be relieved as counsel under Code of Civil Procedure section 284(2) instead of
filing a consent under section 284(1) for the following reasons (describe):
Please see attachment 2
X Continued on Attachment 2.
3. Service
a. Attorney has
(1) personally served the client with copies of the motion papers filed with this declaration. A copy of the proof of service
will be filed with the court at least 5 days before the hearing.
(2) served the client by mail at the client's last known address with copies of the motion papers served with this declaration.
b. If the client has been served by mail at the client's last known address, attorney has
(1) X confirmed within the past 30 days that the address is current
(a) by mail, return receipt requested.
(b) by telephone.
(c) by conversation.
(d) X by other means (specify):
Email
(Continued on reverse) Page 1 of 2
Form Adopted for Mandatory Use
Judicial Council of California
DECLARATION IN SUPPORT OF ATTORNEY'S Code of Civil Procedure, § 284;
Cal. Rules of Court, rule 3.1362
MC-052 [Rev. January 1, 2007] MOTION TO BE RELIEVED AS COUNSEL-CIVIL www.courtinfo.ca.gov
Mistry
MC-052
CASE NAME: CASE NUMBER:
Garcia v. Mistry, et al. RG21087478
3. b. (2) been unable to confirm that the address is current or to locate a more current address for the client after making the
following efforts:
(a) mailing the motion papers to the client's last known address, return receipt requested.
(b) calling the client's last known telephone number or numbers.
(c) contacting persons familiar with the client (specify):
(d) conducting a search (describe):
(e) other (specify):
c. Even if attorney has been unable to serve the client with the moving papers, the court should grant attorney's motion to be
relieved as counsel of record (explain):
4. The next hearing scheduled in this action or proceeding
a. is not yet set.
b. X is set as follows (specify the date, time, and place):
June 20, 2022, 2:30 pm, Department 22
c.
X concerns (describe the subject matter of the hearing):
Case Management Conference
Continued on Attachment 4.
5. The following additional hearings and other proceedings (including discovery matters) are presently scheduled in this case (for each,
describe the date, time, place, and subject matter):
July 7, 2022, 9:00 am, Department 302, Pre-Trial Settlement Conference
July 29, 2022, 8:30 am, Department 22, Case Management Conference
August 25, 2022, 2:30 pm, Department 22, Hearing on Motion to Compel Depositions of
Defendants
August 25, 2022, 2:30 pm, Department 22, Hearing on Motion to Continue Trial
Continued on Attachment 5.
6. Trial in this action or proceeding
a. is not yet set.
b. X is set as follows (specify the date, time, and place):
August 8, 2022, 8:30 am, Department 22
7. Other. Other matters that the court should consider in determining whether to grant this motion are the following (explain):
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
Jonathan McNeil(TYPE
Wong
OR PRINT NAME) (SIGNATURE OF DECLARANT)
8. Number of pages attached: 1
MC-052 [Rev. January 1, 2007] DECLARATION IN SUPPORT OF ATTORNEY'S Page 2 of 2
MOTION TO BE RELIEVED AS COUNSEL-CIVIL
Mistry
MC-025
SHORT TITLE: CASE NUMBER:
Garcia v. Mistry, et al. RG21087478
ATTACHMENT (Number) : 2
(This Attachment may be used with any Judicial Council form.)
Certain of the represented parties are entities who will be unrepresented upon Donahue Fitzgerald LLP's
("DF") withdrawal; thus DF was unable to file a substitution under Cal. Code Civ. Proc. Section 284(1).
DF is no longer able to represent Defendants because there are substantial outstanding fees and costs,
DF is unable to provide competent criminal advice and representation to Defendants, and there has been
an irretrievable breakdown in the attorney-client relationship.
There are substantial outstanding fees and costs due to DF for its services and work dating back to
January 20, 2022. DF has lost substantial attorney's fees and costs over the past several months after
conducting effective and diligent representation of Defendants. Currently, Defendants are collectively
indebted to DF in the total amount of $50,881.06 in past due and pending invoices. It is expected that
Defendants will continue to incur additional fees and expenses until at least DF's motion to be
relieved as counsel is heard. Defendants have also failed to respond to communications related to
outstanding attorneys' fees and costs. Defendants have also breached a material term of their agreement
with DF relating to the representation by continually failing to pay the agreed-upon fees,despite DF's
reasonable warning that DF will withdraw unless clients fulfill their agreement obligations. See
Lempert v. Superior Ct., 112 Cal. App. 4th 1161, 1173 (2003) ("It is generally recognized that the
failure or refusal of a client to pay or secure the proper fees or expenses of the attorney after being
reasonably requested to do so will furnish grounds for the attorney to withdraw from the case")
(quoting People v. Prince, 268 Cal. App. 2d 398, 406 (1968)).
Further, developments in the case have revealed the need for Defendants to have counsel who are able to
advise and represent them with respect to potential criminal liability. Defendants' potential criminal
liability has raised fifth amendment issues in this action. DF does not practice criminal law, and this
has prevented DF from providing full competent representation. DF has communicated to Defendants the
need for criminal counsel and has instructed them to retain criminal counsel, but Defendants have
failed to respond to these requests. DF's inability to competently represent Defendants in this action
raises ethical concerns that require withdrawal as counsel.
Finally, the lack of response from Defendants on the crucial matters mentioned above and other
personality clashes have caused an irretrievable breakdown in the attorney-client relationship. This
breakdown in the attorney-client relationship has made further representation impossible. See Manfredi
& Levine v. Superior Ct., 66 Cal. App. 4th 1128, 1135 (1998) (a breakdown in the working relationship
between an attorney and client provides sufficient grounds for withdrawal); Aceves v. Superior Ct., 51
Cal.App.4th 584, 592 (1996) (court should permit withdrawal where conflict has been sufficiently
established and resulted in a complete breakdown in the attorney-client relationship); see also Lehman
Bros. Holdings, Inc. v. PMC Bancorp, 2017 WL 4071384, at *2 (C.D. Cal. 2017) (“[C]ounsel must be able
to communicate with the client, have the trust of the client, act in the best interests of the client,
and guide and persuade the client to act in manner that is consistent with its legal obligations and
that advances its best interests.”) (citing Manfredi).
Given the outstanding amount on Defendant's account and the fact that Defendants continue to be
unresponsive, it is unlikely Defendants will be able to pay the outstanding balance due or for any
future fees or expenses incurred. Additionally, the inability to advise Defendants on their potential
criminal liability involved in this case, and their unresponsiveness to DF's requests for criminal
counsel, has prevented DF from providing competent and effective representation on the current matter.
Defendants' lack of response on important communications from DF and other personality clashes have
exacerbated the issues described and have resulted in an irretrievable breakdown of the attorney-client
relationship, making representation of Defendants impossible.
(If the item that this Attachment concerns is made under penalty of perjury, all statements in this Page 1 of 1
Attachment are made under penalty of perjury.) (Add pages as required)
Form Approved for Optional Use
Judicial Council of California
ATTACHMENT www.courtinfo.ca.gov
MC-025 [Rev. July 1, 2009] to Judicial Council Form
Mistry
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MC-052 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): FOR COURT USE ONLY JESSE B. MCKEITHEN, #274335 JONATHAN MCNEIL WONG, #112224 DONAHUE FITZGERALD LLP 1999 Harrison St., 26th Flr. Oakland, CA 94612 TELEPHONE NO.: (510)451-3300 FAX NO.: (510)451-1527 ATTORNEY FOR (Name) : Defendants NAME OF COURT: ALAMEDA COUNTY SUPERIOR COURT STREET ADDRESS: 1225 Fallon Street MAILING ADDRESS: CITY AND ZIP CODE: Oakland, CA 94612 BRANCH NAME: CASE NAME: CASE NUMBER: Garcia v. Mistry, et al. RG21087478 HEARING DATE: 09/08/22 #655673771742 DEPT.: 22 TIME: 2:30 PM DECLARATION IN SUPPORT OF ATTORNEY'S BEFORE HON.: Jeffrey Brand MOTION TO BE RELIEVED AS COUNSEL-CIVIL DATE ACTION FILED: February 2, 2021 TRIAL DATE: August 8, 2022 1. Attorney and Represented Party. Attorney (name): Jesse B. McKeithen, Jonathan McNeil Wong is presently counsel of record for (name of party): Bharat Mistry, Shilapaben Mistry aka Shilpa in the above-captioned action or proceeding. Mistry, Shivaa LLC, and Shree Shakti LLC 2. Reasons for Motion. Attorney makes this motion to be relieved as counsel under Code of Civil Procedure section 284(2) instead of filing a consent under section 284(1) for the following reasons (describe): Please see attachment 2 X Continued on Attachment 2. 3. Service a. Attorney has (1) personally served the client with copies of the motion papers filed with this declaration. A copy of the proof of service will be filed with the court at least 5 days before the hearing. (2) served the client by mail at the client's last known address with copies of the motion papers served with this declaration. b. If the client has been served by mail at the client's last known address, attorney has (1) X confirmed within the past 30 days that the address is current (a) by mail, return receipt requested. (b) by telephone. (c) by conversation. (d) X by other means (specify): Email (Continued on reverse) Page 1 of 2 Form Adopted for Mandatory Use Judicial Council of California DECLARATION IN SUPPORT OF ATTORNEY'S Code of Civil Procedure, § 284; Cal. Rules of Court, rule 3.1362 MC-052 [Rev. January 1, 2007] MOTION TO BE RELIEVED AS COUNSEL-CIVIL www.courtinfo.ca.gov Mistry MC-052 CASE NAME: CASE NUMBER: Garcia v. Mistry, et al. RG21087478 3. b. (2) been unable to confirm that the address is current or to locate a more current address for the client after making the following efforts: (a) mailing the motion papers to the client's last known address, return receipt requested. (b) calling the client's last known telephone number or numbers. (c) contacting persons familiar with the client (specify): (d) conducting a search (describe): (e) other (specify): c. Even if attorney has been unable to serve the client with the moving papers, the court should grant attorney's motion to be relieved as counsel of record (explain): 4. The next hearing scheduled in this action or proceeding a. is not yet set. b. X is set as follows (specify the date, time, and place): June 20, 2022, 2:30 pm, Department 22 c. X concerns (describe the subject matter of the hearing): Case Management Conference Continued on Attachment 4. 5. The following additional hearings and other proceedings (including discovery matters) are presently scheduled in this case (for each, describe the date, time, place, and subject matter): July 7, 2022, 9:00 am, Department 302, Pre-Trial Settlement Conference July 29, 2022, 8:30 am, Department 22, Case Management Conference August 25, 2022, 2:30 pm, Department 22, Hearing on Motion to Compel Depositions of Defendants August 25, 2022, 2:30 pm, Department 22, Hearing on Motion to Continue Trial Continued on Attachment 5. 6. Trial in this action or proceeding a. is not yet set. b. X is set as follows (specify the date, time, and place): August 8, 2022, 8:30 am, Department 22 7. Other. Other matters that the court should consider in determining whether to grant this motion are the following (explain): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: Jonathan McNeil(TYPE Wong OR PRINT NAME) (SIGNATURE OF DECLARANT) 8. Number of pages attached: 1 MC-052 [Rev. January 1, 2007] DECLARATION IN SUPPORT OF ATTORNEY'S Page 2 of 2 MOTION TO BE RELIEVED AS COUNSEL-CIVIL Mistry MC-025 SHORT TITLE: CASE NUMBER: Garcia v. Mistry, et al. RG21087478 ATTACHMENT (Number) : 2 (This Attachment may be used with any Judicial Council form.) Certain of the represented parties are entities who will be unrepresented upon Donahue Fitzgerald LLP's ("DF") withdrawal; thus DF was unable to file a substitution under Cal. Code Civ. Proc. Section 284(1). DF is no longer able to represent Defendants because there are substantial outstanding fees and costs, DF is unable to provide competent criminal advice and representation to Defendants, and there has been an irretrievable breakdown in the attorney-client relationship. There are substantial outstanding fees and costs due to DF for its services and work dating back to January 20, 2022. DF has lost substantial attorney's fees and costs over the past several months after conducting effective and diligent representation of Defendants. Currently, Defendants are collectively indebted to DF in the total amount of $50,881.06 in past due and pending invoices. It is expected that Defendants will continue to incur additional fees and expenses until at least DF's motion to be relieved as counsel is heard. Defendants have also failed to respond to communications related to outstanding attorneys' fees and costs. Defendants have also breached a material term of their agreement with DF relating to the representation by continually failing to pay the agreed-upon fees,despite DF's reasonable warning that DF will withdraw unless clients fulfill their agreement obligations. See Lempert v. Superior Ct., 112 Cal. App. 4th 1161, 1173 (2003) ("It is generally recognized that the failure or refusal of a client to pay or secure the proper fees or expenses of the attorney after being reasonably requested to do so will furnish grounds for the attorney to withdraw from the case") (quoting People v. Prince, 268 Cal. App. 2d 398, 406 (1968)). Further, developments in the case have revealed the need for Defendants to have counsel who are able to advise and represent them with respect to potential criminal liability. Defendants' potential criminal liability has raised fifth amendment issues in this action. DF does not practice criminal law, and this has prevented DF from providing full competent representation. DF has communicated to Defendants the need for criminal counsel and has instructed them to retain criminal counsel, but Defendants have failed to respond to these requests. DF's inability to competently represent Defendants in this action raises ethical concerns that require withdrawal as counsel. Finally, the lack of response from Defendants on the crucial matters mentioned above and other personality clashes have caused an irretrievable breakdown in the attorney-client relationship. This breakdown in the attorney-client relationship has made further representation impossible. See Manfredi & Levine v. Superior Ct., 66 Cal. App. 4th 1128, 1135 (1998) (a breakdown in the working relationship between an attorney and client provides sufficient grounds for withdrawal); Aceves v. Superior Ct., 51 Cal.App.4th 584, 592 (1996) (court should permit withdrawal where conflict has been sufficiently established and resulted in a complete breakdown in the attorney-client relationship); see also Lehman Bros. Holdings, Inc. v. PMC Bancorp, 2017 WL 4071384, at *2 (C.D. Cal. 2017) (“[C]ounsel must be able to communicate with the client, have the trust of the client, act in the best interests of the client, and guide and persuade the client to act in manner that is consistent with its legal obligations and that advances its best interests.”) (citing Manfredi). Given the outstanding amount on Defendant's account and the fact that Defendants continue to be unresponsive, it is unlikely Defendants will be able to pay the outstanding balance due or for any future fees or expenses incurred. Additionally, the inability to advise Defendants on their potential criminal liability involved in this case, and their unresponsiveness to DF's requests for criminal counsel, has prevented DF from providing competent and effective representation on the current matter. Defendants' lack of response on important communications from DF and other personality clashes have exacerbated the issues described and have resulted in an irretrievable breakdown of the attorney-client relationship, making representation of Defendants impossible. (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Page 1 of 1 Attachment are made under penalty of perjury.) (Add pages as required) Form Approved for Optional Use Judicial Council of California ATTACHMENT www.courtinfo.ca.gov MC-025 [Rev. July 1, 2009] to Judicial Council Form Mistry