Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-06-453422
BY THE COURT:Joseph Avenius is the lead plaintiff against 14 financial institutions that are alleged to have comprised the bulk of the “prime brokerage” industry which caused the 42 plaintiffs to lose money in the collapse of a subprime lender. After a trial date had been set, plaintiffs’ counsel, the O’Quinn Law Firm, of Houston, Texas, moved for leave to withdraw as plaintiff’s counsel. The trial court denied the motion on the grounds that it was not supported by good cause, and that “it is too late in the proceedings for existing counsel to withdraw without visiting substantial undue and unfair prejudice on the plaintiffs.” O’Quinn filed a notice of appeal from the order denying its motion.
Defendants, joined by plaintiffs, move to dismiss the appeal because the order denying the motion to withdraw is not appealable. The motion to dismiss is supported by this court’s decision in Conservatorship of Rich (1996) 46 Cal.App.4th 1233, where the issue of appealability of an order denying a motion to substitute attorneys was exhaustively considered. In the course of concluding that the order was not appealable, this court stated:
“In Messih v. Lee Drug, Inc, (1985) 174 Cal.App.3d 312 (Messih), the client attempted to appeal from an order permitting his attorney to withdraw as his lawyer. The court held the order nonappealable, noting that ‘absent a provision for the payment of money, in an order ruling on an attorney’s motion to withdraw, such an order is a nonappealable interim order which may be reviewed only by way of a petition for extraordinary writ.’ (Id, at p. 315.)
“The order from which Mrs. Rich seeks to appeal and the order in Messih are essentially the same. In Messih, the client sought to keep the attorney in the case-here the client seeks to remove him and substitute a new attorney. In both situations, the trial court’s order affects attorney representation against the client’s wishes. More importantly, both are interim orders which, although final and collateral to the main litigation, do not command the payment of money or performance of an act.” (Conservatorship of Rich, supra, 46 Cal.App.4th 1233, 1236, fn. omitted.)
The motion to dismiss is opposed by the appellant, the law firm that wanted to withdraw. The gist of the firm’s opposition is that this order should come within the class of non-statutory orders where appeal is allowed. The nature of that class was described in Rich as follows: “ ‘When a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing [the] payment of money or performance of an act, direct appeal may be taken.’ ” (Conservatorship of Rich, supra, 46 Cal.App.4th 1233, 1235, quoting In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.)
Appellant argues that both Rich and Messih are distinguishable: “In Rich, the client was the appellant, challenging the order denying her motion as petitioner below to allow substitution of counsel. The order might have had the effect of requiring existing counsel to continue working on the case, but it did not have the effect of requiring the appellant-that is, the client-to do anything, which according to Rich is essential to appealability... [¶] Here, in contrast, the appealed ordered has the effect of requiring the appellant (that is, the O’Quinn firm) to continue working on and financing the case.” As for Messih, according to appellant, there “the trial court granted the motion to withdraw. Thus the order did not have the effect of requiring counsel to pay any money or perform any act.”
Actually, the client was the appellant in Messih as well as in Rich, However, according to appellant’s logic, the client in Rich should have been able to appeal because she would presumably be forced to pay the attorney she had unsuccessfully tried to discharge. And the appealing client in Messih would also be able to appeal because he presumably would be out-of-pocket after being forced to engage new counsel.
Appellant’s opposition to the motion to dismiss consists only of written argument by attorneys hired solely for this purpose. There is no declaration under penalty of perjury, or other information, disclosing the terms of compensation to the O’Quinn firm. Thus, for all that appears as a matter of record, O’Quinn already has been paid or is serving pursuant to a contingency fee agreement. If, as seems likely, the latter is true, neither client nor attorney will be incurring obligations beyond those previously agreed, and the ultimate question of attorney compensation must await the conclusion of the trial. In other words, the opposition to the motion is not persuasive, most obviously and simply because the order does not, by its plain language, either direct the payment of money or the performance of a specific act.
The motion is granted, and the purported appeal is dismissed.