Judge: Michael Shultz, Case: 23STCV01941, Date: 2025-04-08 Tentative Ruling

Case Number: 23STCV01941    Hearing Date: April 8, 2025    Dept: 40

23STCV01941 Sarah Perez v. California Herbal Remedies, Inc.

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO VACATE DISMISSAL WITHOUT PREJUDICE AND FOR REINSTATEMENT OF THE CASE ON THE COURT’S ACTIVE CALENDAR

                                                                                              I.         BACKGROUND

      The complaint alleges that during Plaintiff’s employment with Defendant, she was subjected to sexual harassment and gender discrimination and was subsequently terminated after she complained to her manager and human resources. Plaintiff alleges seven causes of action for violations of the Fair Employment and Housing Act, violations of the Labor Code, and tort claims for negligence and wrongful termination in violation of public policy.

      On July 24, 2024, Plaintiff filed a Notice of Settlement. At the final status conference hearing the parties stipulated that the court retain jurisdiction pursuant to Code Civ. Proc., § 664.6 and stipulated to dismissal of the action. (M.O. 7/25/24.)

                                                                                               II.        ARGUMENTS

      Plaintiff moves to vacate the dismissal and requests an order to reinstate the case based on Plaintiff counsel’s surprise. Defense counsel has frustrated the settlement of the case by ignoring Plaintiff’s counsel numerous requests to finalize settlement.

      In opposition, Defendant argues that Plaintiff is impeding the settlement. Plaintiff’s counsel, Ryan Handley, is not the handling attorney. No substitution of attorney has been signed. The dismissal was voluntary, and therefore, Code Civ. Proc., § 473 does not provide a remedy.

      In reply, Plaintiff argues that Defendant’s opposition is not supported by a declaration of Gustavo Lamanna who agreed to the settlement. Defendant has not addressed the issue raised by the motion. Substitution of Plaintiff’s attorney was never an issue.

                                                                                                III.       DISCUSSION

      Defendant has not persuasively explained with authority that a change in handling attorney requires a formal motion to be relieved or a substitution of attorney form where the only change has been the name of the law firm handling Plaintiff’s case.

      The complaint was filed by Moon & Yang, APC with Seung Yang and Brett M. Gunther as handling attorneys. (Complaint, 1/30/23.) Plaintiff’s counsel’s law firm subsequently changed its name to Moon Law Group, P.C. (Ntc. 7/12/23.) A formal motion to withdraw is required where the attorney-client relationship is terminated. (Flake v. Neumiller & Beardslee (2017) 9 Cal.App.5th 223, 230 ["An attorney cannot end the relationship simply by ‘ceas[ing] to act’ as counsel.”].) A motion is required where there is no client consent to the termination. (CA ST CIVIL RULES Rule 3.1362, subd. (a)(2).)

      Defendant’s case authority does not support the contention that a substitution is required. The case on which Defendant relies held that “a dissolved law firm has no property interest in legal matters handled on an hourly basis, and therefore, no property interest in the profits generated by its former partners' work on hourly fee matters pending at the time of the firm's dissolution.” (Heller Ehrman LLP v. Davis Wright Tremaine LLP (2018) 4 Cal.5th 467, 471.) It is not applicable here.

      Defendant does not cite applicable authority that Plaintiff cannot vacate a voluntary dismissal. Defendant cites Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, which held that mandatory relief based on an attorney affidavit of fault under Code Civ. Proc., § 473 is not available where the Plaintiff voluntarily dismissed the case. Jackson affirms that “[i]t has long been established that discretionary relief under section 473(b) is available for voluntary judgments and dismissals." (Jackson at 174.)

      Plaintiff has shown “surprise” as Mr. Handley has been the handling attorney in finalizing settlement. He called Defendant’s former counsel on June 10, 2024, and the parties agreed to the settlement amount and its terms. (Handley decl., ¶ 5.) Mr. Handley describes his involvement in the settlement, his edits of the agreement, and follow up with defense counsel, Gustavo Lamanna. (Handley decl., ¶ 6-7.) Based on this conduct, Mr. Handley reasonably believed the matter to be settled. (Id. at ¶ 8.) “Surprise” is where "a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.” (Garcia v. Gallo (1959) 176 Cal.App.2d 658, 666.)

V.   CONCLUSION

      Based on the foregoing, Plaintiff’s motion is GRANTED. The court vacates the dismissal entered on July 25, 2024. The court sets the following dates: