Judge: Latrice A. G. Byrdsong, Case: 21STLC09114, Date: 2023-11-15 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 21STLC09114    Hearing Date: April 11, 2024    Dept: 25

Hearing Date:                         Thursday, April 11, 2024

Case Name:                             LABOR COMMISSIONER, State of California v. BENBAROUKH, LLC, a California limited liability company; ELIAS SHOKRIAN, an individual; EDWARD VILLEGAS aka EDUARDO VILLEGAS, an individual; and DOES 1 through 10, inclusive

Case No.:                                21STLC09114

Motion:                                   Motion to be Relieved as Counsel for Defendants Benbaroukh, LLC and Elias Shokrian

Moving Party:                         Attorneys for Defendants/Cross-Complainants Jason M. Stone, Esq

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:                    Counsel Jason M. Stone’s Motion to Be Relieved as Counsel for Defendants Benbaroukh, LLC and Elias Shokrian is CONTINUED to APRIL 22, 2024 at 10:00 a.m. in Department 25 at Spring Street Courthouse.

By 04/19/2024), Counsel/Moving Party is ordered to file supplemental papers which provide the Court and all parties with an additional separate noticed motion, declaration, and proposed Order to be relieved as counsel for Defendant Elias Shokrian. Failure to do so may result in the hearing being placed off calendar or denied.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                      OK

[X] Correct Address (CCP §§ 1013, 1013a)                                      OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       OK 

OPPOSITION:          None filed as of March 28, 2024                    [   ] Late          [X] None 

REPLY:                     None filed as of April 04, 2024                      [   ] Late          [X] None 

BACKGROUND

On December 29, 2021, Plaintiff Labor Commissioner, State of California (“Plaintiff” or “Labor Commissioner”) filed an action against Defendants Benbaroukh, LLC (“Benbaroukh”), Elias Shokrian (“Shokrian”), and Edward Villegas aka Eduardo Villegas (“Villegas”), (collectively “Defendants”), for (1) foreclosure of mechanic’s lien, (2) unpaid regular wages, (3) overtime wages (Labor Code § 510), (4) liquidated damages (Labor Code § 1194.2), (5) waiting time penalties (Labor Code § 203), (6) unreimbursed business expenses and attorney’s fees (Labor Code § 2802), (7) itemized wage statements (Labor Code § 226), and (8) late payment of wages (Labor Code § 210).

On September 22, 2022, Defendants Benbaroukh, LLC, and Shokrian, filed a joint Answer to the Complaint. Defendant Benbaroukh also filed a Cross-Complaint for breach of contract against Cross-Defendants Fredy E. Donato Duarte (“Duarte”) and Oscar Antonio Beltran Pineda (“Pineda”) and for declaratory relief against Plaintiff/Cross-Defendant Labor Commissioner and Cross-Defendants Duarte and Pineda.

On October 24, 2022, Plaintiff/Cross-Defendant Labor Commissioner filed a Demurrer (“Demurrer”) to the Cross-Complaint. On November 30, 2022, pursuant to Defendant/Cross-Complainant’s request to be heard, the Court did not adopt its tentative ruling and continued the hearing on the Demurrer to allow Defendant/Cross-Complainant an opportunity to file an opposition sixteen (16) days before the next scheduled hearing.

On December 30, 2022, twelve (12) days before the hearing, Defendant/Cross-Complainant Benbaroukh filed an Opposition to the Demurrer. The Court sustained Plaintiff/Cross-Defendant Labor Commissioner’s Demurrer to the Cross-Complaint and granted Defendant/Cross-Complainant 30 days leave to amend.

On April 24, 2023, Plaintiff/Cross-Defendant Labor Commissioner moved for default to be entered against Defendant Villegas. The Clerk did so the same day.

On August 29 and 30, 2023, Plaintiff/Cross Defendant filed motions to compel attendance at deposition and production of documents for Defendants Shokrian and Benbaroukh. The Court granted both of Plaintiff’s motions and awarded sanctions in the total amount of $1,400 against the Defendants and Defendants’ Counsel.

On February 7, 2024, Counsel Jason M. Stone, Esq. (“Counsel”) filed the instant Motion to be Relieved as Counsel for Defendants. (“Motion”).

No opposition has been filed.

MOVING PARTY POSITION

            Counsel prays to the Court for an order to relieve him as counsel for Defendants Benbaroukh and Shokrian citing a breakdown in the attorney client relationship. Counsel states that irreconcilable differences have arisen between Defendant and Cross-Complainants Benbaroukh and Shokrian which has caused undue delay to the proceedings and has rendered counsel unable to continue the representation of both clients without conflict.  

OPPOSITION

            No opposition has been filed.

REPLY

            No reply has been filed.

ANALYSIS

I.          Legal Standard

 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. 

(Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).) 

Under the 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.”

II.        Discussion

As a preliminary matter, the Court notes that the Counsel for the Defendant/Cross-Complainant Benbaroukh and Defendant Shokrian files the instant motion to be relieved as counsel for both clients.  So, the Court addresses the motion as to both Defendants below.

On February 07, 2024, Counsel moved for the Court to relieve him as counsel of record for Defendant/Cross-Complainant Benbaroukh and Defendant Shokrian. (Mot. (MC-051).) Counsel properly filed a Notice of Motion and Motion (MC-051). Counsel also filed a Declaration in Support of the Motion (MC-052) stating that, 

There has been an attorney-client relationship breakdown over the course of the proceeding. Irreconcilable differences have arisen between Defendant and Cross-Complainants Benbaroukh LLC and Elias Shokrian and Counsel which causes undue delay to the proceeding. Counsel will be unable to continue representing the Defendants and Cross-Complainant without conflict.

(MC-052, ¶ 2.) On his Form MC-052, Counsel indicates that he has served Defendant/Cross-Complainant and Defendant Shokrian by mailing copies of the motion papers to each of their last known address. (MC-052 ¶ 3a(2).) Counsel avers that the address provided as the current address of the Defendant/Cross-Complainant Benbaroukh and Defendant Shokrian was confirmed within the last 30 days by conversation. (MC-052 ¶ 3b(1)(c).)

Counsel also provides the Court with a Proposed Order, Form MC-053, which further includes Proof of Service indicating that all parties have been served with the Notice, Motion, Declaration, and Order. (MC-053.)

Here, the Court finds that all procedural requirements have been satisfied and that there is no indication that withdrawal would cause injustice or undue delay in the proceedings.  However, the Court notes the following deficiency with the motion.  Counsel has only filed and paid the court fees for one motion to be relieved as counsel. Counsel may correct this deficiency by filing a separate noticed motion, motion, declaration, and proposed judgment to be relieved as counsel for either of the Defendants and accordingly paying the requisite filing fees.  The Court will treat this initial motion as applicable to whichever of the Defendants is not named in the subsequent filing.

For this reason, Counselor Stone’s Motion to be Relieved as Counsel for Defendants Benbaroukh and Shokrian is CONTINUED.

III.       Conclusion

            Counsel Jason M. Stone’s Motion to Be Relieved as Counsel for Defendants is CONTINUED to APRIL 22. 2024 at 10:00 a.m. in Department 25 at Spring Street Courthouse.

By 04/19/2024), Counsel/Moving Party is ordered to file supplemental papers which provide the Court and all parties with an additional SEPARATE NOTICED MOTION as to Defendant Elias Shokrian, declaration, and proposed Order to be relieved as counsel for Defendant Elias Shokrian  within 10-days. Failure to do so may result in the hearing being placed off calendar or denied.

(A $60.00 motion fee must be paid for this separate motion)

Moving party is ordered to give notice.