Judge: Stephen Morgan, Case: 22AVCV00421, Date: 2022-10-13 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.



Case Number: 22AVCV00421    Hearing Date: October 13, 2022    Dept: A14

Background

 

This is an employment complaint action. Plaintiff John Matthew Derse (“Plaintiff”) alleges that his employment with Defendant Learning for Life (“L4L”) began as a summer school teacher and, in 2016, he accepted a position with Defendant Antelope Valley Learning Academy, Inc. (“AVLA”) under supervisor Defendant Marcello Enrique Palacios (“Palacios”). Plaintiff presents that (1) he was diagnosed with neurogenic bladder prior to working at AVLA and (2) despite the diagnosis, Palacios continuously added new students and transferred the more challenging students to Plaintiff’s already full roster, compared to his younger colleagues who did not suffer from medical conditions. Additionally, Plaintiff presents that there was an allegation against him from a student in which she stated that Plaintiff kissed her. Resulting from this allegation, (1) Palacios sent Plaintiff home on paid leave pending his investigation; (2) Defendants Chad Gray and Jeri Vincent met with Plaintiff and his family to discuss each other’s intent and stated that the parties agreed to disregard the “at will” employment in the L4L handbook; (3) a Confirmation of Conversation form regarding violation of the personal space of a student was signed allegedly to avoid immediate discharge; and (4) Palacios told Plaintiff he was to ignore the student from then on. Plaintiff alleges that, despite the aforementioned allegations, his student talked to him about a family member dying from COVID and he sent a link about a cure for COVID to parents and staff only. Plaintiff contends that Palacios told other defendants that the link was sent to students and violated company policy. Plaintiff was discharged. Plaintiff presents that this discharge was disparate treatment as his colleagues had emailed links to students, including a links to two movies: (1) "Airplane!" – a movie with nudity, suicide scenes and a hanging, and (2) "The Jerk" – a movie with racial slurs. 

 

On June 10, 2022, Plaintiff filed his Complaint alleging six (6) causes of action for: (1) Discrimination, Harassment, and Retaliation Based on Age, Medical Condition, or Improper “Investigation” in Violation of FEHA; (2) Breach of Express and Implied Contract Not to Discharge Without Good Cause; (3) Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Fraud and Deceit; (5) Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA; and (6) Violation of Labor Code § 1198.5.

 

On September 19, 2022, Plaintiff filed his First Amended Complaint (“FAC”) alleging eight (8) causes of action for: (1) Discrimination Based on Age and Disability in Violation of FEHA; (2) Harassment Based on Age and Disability in Violation of FEHA; (3) Retaliation for Engagement in Protected Activity in Violation of FEHA; (4) Breach of Express and Implied Contract Not to Discharge Without Good Cause; (5) Breach of Implied Covenant of Good Faith and Fair Dealing; (6) Fraud and Deceit: Intentional Misrepresentation, Concealment, and False Promise; (7) Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA; and (8) Employment Record Statute of Limitations in Violation of California Labor Code § 1198.5.

 

On September 21, counsel for Plaintiff, Shanon Dawn Trygstad (“Trygstad”), filed her Motion to be Relieved as Counsel (“Motion to be Relieved”).

 

On September 29, 2022, Plaintiff filed his Opposition to the Motion to be Relieved.

 

On October 06, 2022, Plaintiff’s counsel of record, Daniel Joseph Kolodziej (“Kolodziej”), filed a declaration is support of the Motion to be Relieved.

 

On October 10, 2022, Plaintiff filed a document titled “Response to His Attorney’s Declaration to be Relieved as Counsel in Advance of the October 13, 2022 Hearing.” The Court notes two things:

 

 

The Court, in its discretion, considers the untimely response. The Court notes that the response is a timeline provided by Plaintiff.

 

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Analysis

 

Standard for Relieving Counsel – An attorney in an action¿may be changed¿at any time before or after judgment or final determination upon the order of the court,¿upon the application of either client or attorney, after notice from one to the other. (Cal. Code Civ. Proc. §284(2)).¿ Rules of Court, Rule 3.1362 requires: 

 

1.¿¿¿¿¿¿¿¿¿Notice of motion and motion¿to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel Civil form (MC-051)); 

2.¿¿¿¿¿¿¿¿¿A declaration¿stating in general terms, and without compromising the confidentiality of the attorney client relationship, why a motion under CCP §284(2), is brought instead of filing a consent under CCP §284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel Civil form (MC-052)); 

3.¿¿¿¿¿¿¿¿¿Service of the notice¿of motion and motion and declaration on¿all other parties¿who have appeared in the case; and 

4.¿¿¿¿¿¿¿¿¿The¿proposed order¿relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel Civil form (MC-053)). 

 

(Rules of Court, Rule 3.1362.)

 

The motion should be denied if withdrawal would¿prejudice the client.¿ (Rules Prof. Conduct, Rule 3-700(A)(2); Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial, 9:385.2 (2008); 1 Witkin Cal. Pro., Attorneys §72 (2008).)¿ The motion should be denied if it will¿cause undue delay in the proceeding or cause injustice.¿ (Mandell v. Superior Court, (1977) 67 Cal.App.3d 1, 4.)¿ 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. Superior Court¿(2003) 112 Cal.App.4th 1161, 1173.)¿ A breakdown in the attorney-client relationship (or personality clash) is grounds for withdrawal.¿ (Estate of Falco¿(1987) 188 Cal.App.3d 1004, 1014.) An attorney is not limited to withdrawing from a case for cause and may withdraw when withdrawal can be accomplished without undue prejudice to the client.¿ (Ramirez v. Sturdevant¿(1994) 26 Cal. Rptr. 2d 554, 559.) 

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Discussion

 

Application – The Court notes that Plaintiff’s counsel of record is Kolodziej of Trygstad, Schwab & Trygstad. Trygstad is a part of this firm as well.  It is presented by Plaintiff that Daniel J. Kolodziej, Richard J. Schwab, and Trygstad are his attorneys. Subsequently, Kolodziej filed a declaration in support of the Motion to be Relieved. As such, the Court operates under the assumption that Trygstad, Schwab & Trygstad, the firm itself, is withdrawing as counsel.

 

  1. Notice

 

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). 

 

Tygstad has complied with this requirement.

 

Kolodziej also presents that a hearing in the action on October 5, 2022, Plaintiff appeared in court in person and, upon inquiry by the Court, acknowledged on the record having received the Motion to be Relieved; acknowledged the new hearing date and time of October 13, 2022 at 8:30 am; and waived further notice.

 

  1. Declaration – CRC Rule 3.1362(c)

 

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). 

 

Trygstad has complied with this requirement. Trygstad presents that Plaintiff and the firm have had irreconcilable difference arise which make it unreasonably difficult to carry out the attorney-client privilege effective.

 

  1. Service – CRC Rule 3.1362(d); LASC Local Rule 4.35 

 

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. 

 

When an attorney files a motion to withdraw as attorney of record for a fiduciary, service must be made by citation. The citation must be served in the manner provided in Code of Civil Procedure sections 415.10 or 415.30. If the fiduciary resides outside of California, service may also be made in the manner provided in Code of Civil Procedure section 415.40.  (LASC Local Rules, Rule 4.35.) 

 

Trygstad has complied with this requirement by serving Plaintiff by mail at his last known address after making reasonable efforts to confirm her address by confirming the address via conversation within the last 30 days.

 

Kolodziej also presents that Plaintiff was electronically served to his email address, confirmed on the October 05, 2022, and acknowledged on record that he had received the Motion to be Relieved and confirmed his email address.

 

  1. Order – CRC Rule 3.1362(e)

     

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.

 

Trygstad has filed a proposed order on form MC-053 with only one hearing date – the Case Management Conference that was set for October 05, 2022. This occurred prior to the hearing on the Motion to be Relieved.

 

Concurrently, there is a hearing on a Motion to Strike. While the Declaration reflects this, the Order does not. However, it appears, as Trygstad, Schwab & Trygstad filed an Opposition for Plaintiff, they intend to represent Plaintiff at the hearing on the Motion to Strike.

 

No trial date has been set at this time.

 

As of the hearing on this motion, there is no subsequent hearing date scheduled. The Court sets a hearing for December 19, 2022 pursuant to Cal. Rules of Court, Rule 3.1362(e).

 

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Opposition

 

Plaintiff opposes the Motion to Be Relieved. Plaintiff presents that “Rick,” whom the Court believes to be Richard Schwab, was (1) the only attorney who upon first meeting mentioned the possibility of contingency and expressed a genuine interest in this case; (2) the only attorney to appreciate the Complaint that Plaintiff’s wife drafted and waived the $25,000.00 fee to file it; and (3) agreed that communication between attorney and client would occur via email due to Plaintiff’s hearing loss. Plaintiff also presents that Trygstad’s presentation of irreconcilable differences is inaccurate as he was uninformed of the issue regarding the filing date of the Complaint due to a clerical error, and the motions and hearings that resulted; that Plaintiff received an email from Trygstad on September 13, 2022 stating “Unless you will sign a substitution of attorney to appear in person, we will file a motion to withdraw on October 21, 2022[;]” and that an error occurred with the Case Management Statement, but was corrected on September 22, 2022. Plaintiff argues that relieving Trygstad, Schwab & Trygstad would cause undue prejudice as (1) there were unforeseen errors in this case with representation and proceeding without counsel would be unfeasible, (2) Trygstad, Schwab & Trygstad is the only law firm that has represented another former employee of Defendants with a favorable outcome, and is currently representing another former employee Defendants; and (3) finding representation who is as familiar as Trygstad, Schwab & Trygstad with the facts of this case is unlikely.

 

Although an attorney may not abandon a client or act in a way that prejudices a client's interest, an attorney is entitled to withdraw from representation without cause, with or without client consent. (Ramirez v Sturdevant (1994) 21 Cal.App.4th 904, 915.) In a pending matter, counsel's motion to withdraw over the client's objection requires court approval, but the court should not prevent counsel from withdrawing from the case if withdrawal can be accomplished without undue prejudice to the client. (Ibid.; see also Hodcarriers, Bldg. & Common Laborers Local v Miller (1966) 243 Cal.App.2d 391, 395 [trial court's authority under Cal. Code Civ. Proc. § 128 to oversee conduct and order of its proceedings permitted it to deny counsel's motion to withdraw because withdrawal would have prejudiced opponent).

 

Here, despite Plaintiff’s presentations, the case is only approximately four months old; There is no scheduled hearing after October 13, 2022; and no trial date has been set. Plaintiff will not be unduly prejudiced.

 

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Trygstad’s Request to be Relieved as Counsel is GRANTED. Trygstad, Schwab & Trygstad is relieved after the conclusion of the hearing of the Motion to Strike so as not to prejudice Plaintiff.

 

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Conclusion

 

Trygstad’s Request to be Relieved as Counsel is GRANTED. Trygstad, Schwab & Trygstad is relieved after the conclusion of the hearing of the Motion to Strike on October 13, 2022, so as not to prejudice Plaintiff.

 

As there is no presently scheduled hearing in this action, the Court sets a hearing for December 19, 2022 pursuant to Cal. Rules of Court, Rule 3.1362(e).