Judge Holly J. Fujie, Case Number: 19STCV29239, Date: 2024-08-07 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

On August 15, 2019, Plaintiff Dambar Garung filed a complaint against Defendants Renu Kayastha, Tilak Rana, Himalayan Hut, LLC and Does 1 through 10, inclusive, alleging claims for: 1) fraud and deceit; 2) violations of Labor Code (“LC”) section 98.6; 3) violation of LC section 1102.5; 4) violation of LA section 232.5; 5) wrongful termination; 6) failure to pay wages and/or overtime under LC sections 510, 1194 and 1199; 7) failure to reimburse expenses pursuant to LC section 2802; 8) violation of LC section 226(a); 9) waiting time penalties under LC section 203; and 10) Unfair Business Practices under Business & Professions Code Section 17200, et seq.. Although trial in this case, which was set for July 8, 2024, had been taken off-calendar because on the eve of trial the parties informed the Court that they had reached a settlement, it appears that the settlement may not be completed, such that the Court must set another trial date, and will do so at the hearing on this motion. The last date for this case to be brought to trial is February 14, 2025.

On June 26, 2024, Counsel filed the instant motion to be relieved as counsel for Defendants. No opposition has been filed.

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, subd. (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, subds. (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.

Under Code of Civil Procedure section 1014, “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396(b), moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant. After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant.”

Although Counsel filed a noticed Motion and Motion to be relieved as counsel, he was required to file but did not file the proper form for making such a motion (MC-051). Counsel also failed to file the proper form of a Declaration in Support of the Motions (MC-052).

On July 15, 2024, the Court ordered that Counsel file forms MC-051 and MC-052 as a prerequisite to the granting of the Motion. Counsel failed to do so, and for that reason, the Court denies the Motion.

Hon. Holly J. Fujie

Judge of the Superior Court