Judge: Upinder S. Kalra, Case: 21STCV09623, Date: 2023-02-22 Tentative Ruling

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Case Number: 21STCV09623    Hearing Date: February 22, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   February 22, 2023                                          

CASE NAME:           Jose Ayala v. Somatdary, Inc., et al.

CASE NO.:                21STCV09623

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Counsel for Abbas Pournahavandi and Somatdary, Inc., dba Rapid Plumbing, David A. Yudelson

RESPONDING PARTY(S): None as of February 17, 2023

REQUESTED RELIEF:

1.      An order granting the motion to be relieved as counsel.

TENTATIVE RULING:

1.      Motion to be Relieved as Counsel is CONDITIONALLY GRANTED, PENDING RECEIPT OF form MC-053 as required under Rule of Court 3.1362

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On March 11, 2021, Plaintiff Jose Ayala (“Plaintiff”) filed a complaint against Defendants Somatdary, Inc., dba Rapid Plumbing, ADP Total Source FL XVI, Inc., ADP Total Source, Inc., and Abbas Pournahavandi (“Defendants.”) The complaint alleged 18 causes of action, including various labor code violations, fraud, intentional infliction of emotional distress, and negligent hiring and retention. The complaint alleges that Plaintiff worked for Defendants from 2015 to 2019 as a technician. During Plaintiff’s employment, they were not paid correctly, including failure to pay overtime, failure to pay all wages entitled to, charging Plaintiff for business expenses. Additionally, Plaintiff alleges that Defendants violated various Labor Code sections by not having a commission plan for Plaintiff and requiring Plaintiff to provide their own tools.

On April 30, 2021, Defendants ADP TotalSource FL XVI and ADP TotalSource, Inc., filed a Demurrer.

On August 26, 2021, Defendant Abbas Pournahavandi filed an Answer.

On August 26, 2021, Defendant Somatdary Inc., filed an Answer.

On December 8, 2021, Defendants ADP TotalSource FL XVI and ADP TotalSource, Inc., filed an Answer.

The current Motion to be Relieved as Counsel was filed on December 30, 2022. No opposition has been filed as of February 17, 2023.

LEGAL 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 of Civ. Proc., § 284, subd. (b).)  An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation.  (See Cal. Rules of Prof. Conduct 3-700(C)(1).)  “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.)   

An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court 3.1362(c)), and MC-053 (Proposed Order) (Cal. Rules of Court 3.1362(e)).   

Further, the requisite forms must be served on the client and all other parties who have appeared in the case.  (Cal. Rules of Court 3.1362(d).)  The court may delay 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. Rules of Court 3.1362(e).) 

ANALYSIS:

            Counsel for Defendants Abbas Pournahavandi and Somatdary Inc., David Yudelson, moves to withdraw as counsel for both Defendants.[1] 

            In the Declaration in Support of the current motion, Counsel David Yudelson indicates that the reason for the motion involves confidential matters that would require an in camera hearing. The grounds “arise under and are permitted by California Rule of Professional Conduct 1.16(b)(4) and (b)(5).

            Counsel has failed to file all the required documents. Counsel has filed MC-051 and MC-052, but has failed to file MC-053, which is the Proposed Order. Under Rule of Court 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 Motion is conditionally Granted subject to form MC-053 being filed within five days.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion to be Relieved as Counsel is Conditionally Granted, to allow Counsel to file the remaining MC-053 form. Thereafter, it will be effective upon filing proof of service of this order on each Defendant.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             February 22, 2023                   __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court