Judge: Upinder S. Kalra, Case: 21STCV28290, Date: 2023-06-23 Tentative Ruling

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Case Number: 21STCV28290    Hearing Date: June 23, 2023    Dept: 51

Tentative Ruling

 

Judge Upinder S. Kalra, Department 51

 

HEARING DATE:   June 23, 2023                                     

 

CASE NAME:           Carlos Rodriguez v. Ho Lee Ji, et al.

 

CASE NO.:                21STCV28290

 

MOTION TO BE RELIEVED AS COUNSEL

 

MOVING PARTY: Counsel for Defendant Mahmoud Elsayed, erroneously sued as Saleh Mohammed Sarwar

 

RESPONDING PARTY(S): None as of June 20, 2023.

 

REQUESTED RELIEF:

 

1.      An order granting attorney’s Motion to be Relieved as Counsel for Defendant.

TENTATIVE RULING:

 

1.      Motion to be Relieved as Counsel is CONTINUED in order for counsel to file a valid  proof of service..

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On August 2, 2021, Plaintiff Carlos Rodriguez (“Plaintiff”) filed a complaint against Defendants Ho Lee Ji dba Whittier Car Wash & Café and Saleh Mohammed Sarwar (“Defendants.”) The complaint alleged 18 causes of action including various Labor Code and FEHA violations, as well as infliction of emotional distress. Plaintiff alleges that worked fro Defendants from 2018 until 2019. During that time, Plaintiff did not receive all rest and meal periods and was not paid for overtime work. Additionally, Plaintiff was injured at work, but Defendants but did not address the injury. Despite knowing about Plaintiff’s injury, Defendants did not take steps to deal with these injuries. Plaintiff also alleges that because he complained about various irregularities, he was terminated.

 

On April 7, 2022, Defendants filed a joint Answer.

 

On March 6, 2023, Defendant Ji filed a Substitution of Attorney.

 

On May 17, 2023, Attorney for Defendant Mahmoud Elsayed, erroneously sued as Saleh Mohammed Sarwar, filed a Motion to be Relieved as Counsel. No Opposition has been filed as of June 20, 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:

 

Defendant’s counsel, Haewon Kim, moves to be relieved as counsel for Defendant Mahmoud Elsayed, erroneously sued as Saleh Mohammed Sarwar.

 

In the Declaration in Support of Attorney’s Motion to be Relieved as Counsel, counsel indicates that there has been a breakdown in communication. Counsel attempted to contact Defendant Elsayed after receiving a meet and confer letter regarding discovery. Counsel visited Defendant’s address on the W-2 and called the last known phone number, but has been unable to reach Defendant. Counsel states that because of this breakdown in communication, counsel cannot effectively represent Defendant’s interest.

 

Additionally, in the attached declaration, counsel indicates that the client was served via mail at the address which was confirmed within the last 30 days by co-Defendant Ji Ho Lee. In the Declaration attached to MC-052, Co-Defendant Lee states that he was Defendant Elsayed’s employer, and the last known address was an apartment in Anaheim, California. Additionally, Mr. Kim states he personally went to the address listed in Defendant’s W-2, which is also attached, and no one was inside. (Dec. ¶ 3(b), Ex. A.)

 

When the motion was initially filed, trial was scheduled for July 18, 2023. However, that dated has been vacated and a trial setting conference is currently scheduled for the same date as this hearing.

 

The Court finds that the reasoning is sufficient to be relieved as counsel. Counsel has filed all appropriate documents as required under Rules of Court 3.1362. There have been no other operative motions filed in this matter and trial is no longer approaching, with no new date scheduled. There is ample time for Defendant Elsayed to retain counsel. This type of breakdown, where the client is unreachable, is an appropriate instance of granting relief. However, as stated in Rules of Court 3.1362(d)(2), if notice is served via electronic service, “it must be accompanied by a declaration stating that the electronic service address is the client's current electronic service address.” Here, the Proof of Service attached to the motion indicates that the documents were served via electronic service. However, Defendant Elsayed’s email address is not on provided nor is there a declaration stating that Defendant’s email is current. The only email addresses provided are for Plaintiff’s attorneys.[1]

 

2.      Therefore, Motion to be Relieved as Counsel is CONTINUED, in order for counsel to file a valid proof of service.

 

Conclusion:

 

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

 

Motion to be Relieved as Counsel is CONTINUED.

 

Moving party is to give notice.

 

IT IS SO ORDERED.

 

Dated:             June 23, 2023              _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court

 


[1]It appears that counsel served the client’s via mail but that box was not checked.