Judge: Malcolm Mackey, Case: 22STCV17368, Date: 2023-04-18 Tentative Ruling

Case Number: 22STCV17368    Hearing Date: April 18, 2023    Dept: 55

JANE DOE v. DV SAFE INC.,                                                         22STCV17368

Hearing Date:  4/18/23,  Dept. 55.

#8:   MOTION TO BE RELIEVED AS COUNSEL OF RECORD.

Notice:  Okay

No Opposition

MP:  Derek Smith Law Group, LLC, counsel of record for Plaintiff

RP:  

Summary

On 5/26/22, Plaintiff filed a Complaint alleging that Defendant GREEN made unwanted sexual advances toward Plaintiff, and Plaintiff complained to the company CEO, but Plaintiff resigned from Plaintiff’s position as Ambassador due to being constructively discharged from employment.

The causes of action are:

1. SEXUAL HARASSMENT IN VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT [CAL. GOV’T CODE § 12940(J)].

2. DISCRIMINATION IN VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT [CAL. GOV'T CODE §12955(A)].

3. FALSE IMPRISONMENT.

4. CONSTRUCTIVE TERMINATION IN VIOLATION OF PUBLIC POLICY.

5. NEGLIGENCE.

6. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

7. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.

MP Positions

Moving counsel requests an order allowing withdrawal as counsel of record, on grounds including the following:

·         Complete and irreconcilable breakdown in attorney-client relationship.

·         Breakdown of communication with the client.

·         Breach of attorney-client agreement.

·         Counsel has been unable to confirm the client’s current mailing address.

Tentative Ruling

The motion hearing is continued to 5/19/23 at 8:00 a.m. in Department 55.

The Court will require counsel to try harder to provide the client’s current mailing address than just the reported emailing, because the Court clerks will not be able to notify Plaintiff of future proceedings without an address. 

The client’s address must be confirmed within 30 days prior to the filing of the motion to be relieved.  CRC Rule 3.1362(d).

However,  the form notice, declaration and proposed order are sufficiently in compliance.  See  CRC Rule 3.1362.

Additionally, moving counsel’s declaration shows cognizable grounds for withdrawal:

• Client breaches an agreement or obligation to the member as to expenses or fees.  Rules Prof. Conduct, Rule 1.16(b)(5);  Lempert v. Sup. Ct. (2003) 112 Cal. App. 4th 1161, 1173.
• Breakdown in the attorney-client relationship (or personality clash).  Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1014.
• Client by conduct renders it unreasonably difficult for the member to carry out the employment effectively (e.g., noncooperation or noncommunication).  Rules Prof. Conduct, Rule 1.16(b)(4).  Cf.  Estate of Falco (1987) 188 Cal. App. 3d 1004, 1020 (“We find no abuse of discretion in the trial court's implicit finding rejecting the contention that respondents' lack of cooperation justified appellants' withdrawal.”).

Further, no opposing papers have been filed in order to evidence any prejudice to the client.  See  Rules Prof. Conduct, Rule 1.16(d). 

“The determination whether to grant or deny an attorney 's motion to  withdraw as counsel of record lies within the sound discretion  of the trial court, having in mind whether such withdrawal might work an injustice in the handling of the case.”  Lempert v. Sup. Ct. (2003) 112 Cal. App. 4th 1161, 1173.  See also  Jones v. Green (1946) 74 Cal. App. 2d 223, 230.