Judge: Michelle Williams Court, Case: 21STCV42746, Date: 2022-09-01 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 74 before 8:30 the morning of the hearing. The email address is smcdept74@lacourt.org. Please do not call the court to submit on the tentative.

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In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind: The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record. Oral argument is not an opportunity to simply repeat that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated. If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.


 


 

Case Number: 21STCV42746    Hearing Date: September 1, 2022    Dept: 74

21STCV42746           DIANA BARAJAS vs TW ONSITE SERVICES, INC.

Law Offices of Thomas F. Nowland (counsel for Defendant) Motion to be Relieved as Counsel

TENTATIVE RULING:  The motion is GRANTED.  An OSC re taking defendant’s motion to vacate default off calendar for failure to retain counsel is set for October 4, 2022 at 8:30 a.m.

Background

On  November 19, 2021, Plaintiff Diana Barajas filed this employment action against Defendant TW Onsite Services, Inc. On February 15, 2022, Plaintiff filed the First Amended Complaint asserting twelve causes of action. Plaintiff alleged she experienced harassment based upon her sex, discrimination based upon her disability and retaliation, and was not paid compensation for overtime.

On May 9, 2022, the clerk entered Defendant’s default. On June 14, 2022, Defendant filed a motion to set aside the default.

Motion

On July 15, 2022, the Law Offices of Thomas F. Nowland filed its motion to be relieved as counsel for Defendant TW Onsite Services, Inc.

Opposition

In opposition, Plaintiff contends that a corporation cannot represent itself and therefore counsel cannot withdraw until substitute counsel is available.

Reply

In reply, counsel notes there is no procedural requirement that substitute counsel be provided.

Motion to be Relieved as Counsel

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(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.) Further, under such discretion to allow an attorney to withdraw, the motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

“A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil (form MC-051).” (Cal. R. Ct. 3.1362(a).) “Notwithstanding any other rule of court, no memorandum is required to be filed or served with a motion to be relieved as counsel.” (Cal. R. Ct. 3.1362(b).) “The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).” (Cal. R. Ct. 3.1362(c).)

“The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service or mail. If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either: (1) The service address is the current residence or business address of the client; or (2) 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. As used in this rule, ‘current’ means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.” (Cal. R. Ct. 3.1362(d).)

“The proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil (form MC-053) and must be lodged with the court with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.” (Cal. R. Ct. 3.1362(e).)

Discussion

Counsel seeks to be relieved on the grounds that Defendant “is in breach of the retainer agreement” and “is consistently uncooperative with counsel.” (Nowland Decl. ¶ 2.) Pursuant to California Rules of Professional Conduct, rule 1.16(b)(5), the client’s breach of the representation agreement is a sufficient basis to allow withdrawal as counsel. Similarly, pursuant to California Rules of Professional Conduct, rule 1.16(b)(4), an attorney may withdraw “when the client . . . renders it unreasonably difficult for the lawyer to carry out the representation effectively.” Counsel filed and served the required forms as well as demonstrated a proper basis for withdrawal.

Plaintiff filed an opposition to the motion. Plaintiff correctly notes that a corporation cannot appear without an attorney. “[U]nder a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.)

Plaintiff then argues “TW Onsite Services, Inc., cannot be left in propria persona in this litigation; a new attorney who is a member of the California State Bar must be substituted in as counsel for the corporation if their present counsel is to depart.” (Opp. at 5:25-6:2.) Plaintiff’s argument is contrary to California law. Plaintiff cites Vann v. Shilleh (1975) 54 Cal.App.3d 192, in which the represented corporation appealed a judgment after the trial court “compelled the defendants to appear by defendant Shilleh, a nonlawyer, appearing in propria persona and refused to grant defendants a continuance to secure new counsel.” (Id. at 194.) Nothing in Vann permits an opposing party to prevent the withdrawal of counsel for a corporation. The Vann opinion was entirely based upon the trial court’s failure to protect the represented corporation, not the opposing parties, by denying the request for a trial continuance. (See also CRPC, rule 1.16(d) (“A lawyer shall not terminate a representation until the lawyer has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit the client to retain other counsel).) The relevant prejudice is to the corporate client, not the opposing party.

In Thomas G. Ferruzzo, Inc. v. Superior Court (1980) 104 Cal.App.3d 501, the Court of Appeal reversed a trial court’s denial of a motion to be relieved based upon the same facts here: “[i]n the respondent superior court petitioner, upon noticed motion, moved in each case to be relieved as counsel of record for the corporation (real party in interest) . . . The grounds consisted of non-cooperation and non-payment of attorney fees.” (Id. at 503.) As summarized by the Court of Appeal, “[i]n each case the [trial] court denied the motion on the ground that the client was a corporation and the court was without authority to allow the withdrawal as attorney of record for the corporation because, in the court's opinion, the only available method for counsel to withdraw was by substituting in new counsel.” (Ibid.) Plaintiff makes the same argument as the trial court in Ferruzzo.

The Court of Appeal rejected this argument and ordered that “a peremptory writ of mandate issue directing the superior court to grant petitioner's motions to be relieved as attorney of record for real party in interest.” (Id. at 504.) The court found counsel can properly withdraw and leave a corporation without representation:

The first is the principle supported by Merco [Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724] that a corporation may not proceed in propria persona. The second is that an attorney, given proper grounds, may be permitted by the court to withdraw as attorney of record. (Code Civ.Proc., s 284.) These two concepts are not inconsistent in the case of a corporate client. An attorney may be allowed to withdraw without offending the rule against corporate self-representation.

The effect of withdrawal is to leave the corporation without representation and without the ability to practice self-representation. For the uncooperative corporate client who has not been willing to bring in new counsel, granting of the withdrawal motion will put extreme pressure on it to obtain new counsel of record for should it fail to do so it risks forfeiture of its rights through non-representation.

(Ferruzzo, supra, 104 Cal.App.3d at 504.) Accordingly, Plaintiff’s opposition lacks merit.

The motion is GRANTED. An OSC re taking defendant’s motion to vacate default off calendar for failure to retain counsel is set for October 4, 2022 at 8:30 a.m.