Judge: Peter A. Hernandez, Case: 22PSCV01040, Date: 2023-07-20 Tentative Ruling
Case Number: 22PSCV01040 Hearing Date: July 20, 2023 Dept: K
Defendant Guy F. Atkinson Construction, LLC’s Application
of Eric A. Berg to Appear Pro Hac Vice is GRANTED [see below].
Background
Plaintiff Moore Sweeping (“Plaintiff”) alleges as follows:
Plaintiff
and Defendant Guy F. Atkinson Construction, LLC (“Atkinson”) entered into a
contract dated July 19, 2019 (“Contract”), whereby Plaintiff was to perform
street sweeping services for Atkinson on State Route 60 pavement rehabilitation
project in Los Angeles County (the “Project”). The Contract was subject to the
Federal Disadvantaged Business Enterprise (“DBE”) program requirements and the State
of California Department of Transportation’s “(CalTrans”) Disadvantaged
Business Enterprise Policy. Plaintiff began work on the Project on December 29,
2019. At the outset, Atkinson did not request more than one DBE street sweeper
for the Project. Plaintiff then became aware that Atkinson was using another
company, Century Sweeping, Inc. (“Century”), for street sweeping on the Project
in violation of the Contract terms. Plaintiff also became aware that Atkinson
had engaged in two separate DBE violations: the illegal replacement of a DBE
subcontractor and prompt payment violations. CalTrans investigated Atkinson’s
alleged violations and, in or about April 2020, found that Atkinson had indeed
committed same. Atkinson terminated the Contract without notice and without a
justifiable reason immediately following the investigation, on the basis that
Plaintiff had not obtained the required special shift letter from Atkinson’s
union, the International Union of Operating Engineers, Local 12 (“Union”), to
begin work at the time it was instructed to by Atkinson. Plaintiff was the only
subcontractor out of several that had this special shift letter requirement. Atkinson
and Union were complicit in preventing this letter from being obtained by
Plaintiff. At the time of termination of the Contract, there remained
outstanding to Plaintiff $759,739.23 left on the Contract price. Plaintiff
filed a complaint with CalTrans regarding Atkinson’s termination of the
Contract and filed a Stop Notice, but CalTrans found that Atkinson had good
cause to replace Plaintiff.
On April 20, 2023, Plaintiff filed a “Amended Verified Complaint,” asserting causes of action against Atkinson, Union, Joseph Pacheco (“Pacheco”) and Does 1-10 for:
1.
Breach of Contract
2. Breach of the Covenant of Good Faith and Fair Dealing
3.
Unfair Business Practices (Bus. & Prof. Code §
17204)
4.
Intentional Interference with Contractual Relations
5.
Intentional Misrepresentation
6.
Intentional Interference with Prospective Economic
Advantage
On April 25, 2023, Plaintiff dismissed Union and Pacheco, without prejudice.
A Trial Setting Conference is set for September 13, 2023.
Legal Standard
“A person who is not a licensee of the State Bar of California but who is an attorney in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active licensee of the State Bar of California is associated as attorney of record. No person is eligible to appear as counsel pro hac vice under this rule if the person is: (1) A resident of the State of California; (2) Regularly employed in the State of California; or (3) Regularly engaged in substantial business, professional, or other activities in the State of California.” (Cal. Rules of Court (“CRC”) Rule 9.40, subd. (a).)
“A person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office. The notice of hearing must be given at the time prescribed in Code of Civil Procedure section 1005 unless the court has prescribed a shorter period.” (CRC Rule 9.40, subd. (c)(1).)
“The application must state: (1) The applicant's residence and office address; (2) The courts to which the applicant has been admitted to practice and the dates of admission; (3) That the applicant is a licensee in good standing in those courts; (4) That the applicant is not currently suspended or disbarred in any court; (5) The title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) The name, address, and telephone number of the active licensee of the State Bar of California who is attorney of record.” (CRC Rule 9.40, subd. (d).)
“An applicant for permission to appear as counsel pro hac vice under this rule must pay a reasonable fee not exceeding $50 to the State Bar of California with the copy of the application and the notice of hearing that is served on the State Bar. . .” (CRC Rule 9.40, subd. (e).)
Atkinson moves, pursuant to California Rules of Court Rule 9.40, for an order allowing the pro hac vice admission of Eric A. Berg (“Berg”).
The court notes that the instant motion originally came on calendar on July 17, 2023; at that time, the court continued the hearing to July 20, 2023 and instructed Atkinson’s counsel to provide notice. There is no indication on ecourt (i.e., as of July 18, 2023 at 1:44 p.m.) that Atkinson’s counsel provided notice as instructed. The following ruling, then, is contingent upon Atkinson’s counsel providing the court at or before the time of the hearing with satisfactory evidence that notice of the July 20, 2023 continued hearing date was, in fact, provided:
The application complies with the requirements of California Rules of Court Rule 9.40; accordingly, the application is granted.