Judge: Upinder S. Kalra, Case: 21STCV41047, Date: 2023-05-09 Tentative Ruling

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Case Number: 21STCV41047    Hearing Date: May 9, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   May 9, 2023                                       

CASE NAME:           Eduardo Amezcua Fuentes v. Shoreline Tire & Auto Inc., et al.

CASE NO.:                21STCV41047

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Defendant’s Counsel Thomas Nowland

RESPONDING PARTY(S): None as of May 4, 2023.

REQUESTED RELIEF:

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

TENTATIVE RULING:

1.      Motion to be Relieved as Counsel is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On November 4, 2021, Plaintiff Eduardo Amezcua Fuentes (“Plaintiff”) filed a complaint against Defendants Shoreline Tire & Auto Inc., and John Modugno (“Defendants.”) The complaint raised 15 causes of action, including various Labor Code and FEHA violations. Plaintiff alleges that he worked for Defendants starting in June 2020 and ending in February 2021. In December, Plaintiff had injuries to his left hand from repetitive work and reported the injuries to his supervisor and Defendant Modugno. Plaintiff went to the hospital and primary care doctor, and was told to take time off. When Plaintiff returned, he requested accommodations but was wrongfully terminated. Plaintiff also alleges that while working for Defendants, he did not receive full compensation, was not allowed to take breaks, and did not receive wage statements.

On January 27, 2022, Defendants Shoreline Tire & Auto Inc., and John Modugno filed an Answer.

On March 30, 2023, Defendants’ Attorney, Thomas F. Nowland, filed the current Motion to be Relieved as Counsel. No Opposition has been filed as of May 4, 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, Thomas F. Nowland, moves to be relieved as counsel for John Modugno.

In the Declaration in Support of Attorney’s Motion to be Relieved as Counsel, counsel indicates that Defendant is in breach of the retainer agreement and is consistently uncooperative with counsel.

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 verifying the clients’ address with the California Secretary of State website. (Dec. ¶ 3(b).)

Counsel has provided all the required documents under California Rules of Court Rule 3.1362. The Proof of Service filed concurrently indicates both Plaintiff’s counsel and Defendants were served via fax or email as well as by mail.

The Court finds that the reasoning is sufficient to be relieved as counsel. While the trial date is upcoming, the Court does not find any reason why the matter cannot be pushed back to allow for Defendant to obtain new counsel. There have been no other operative motions filed in this matter and therefore, it is unlikely that Plaintiff will suffer prejudice if the trial is continued to a later date.

Conclusion:

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

Motion to be Relieved is GRANTED effective upon filing proof of service of this order on each Defendant.

Moving party is to give notice.

IT IS SO ORDERED. 

Dated:             May 9, 2023                

                                                                                    __________________________________          
                                                                                    Upinder S. Kalra

                                                                                    Judge of the Superior Court

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   May 9, 2023                                       

CASE NAME:           Eduardo Amezcua Fuentes v. Shoreline Tire & Auto Inc., et al.

CASE NO.:                21STCV41047

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Defendant’s Counsel Thomas Nowland

RESPONDING PARTY(S): None as of May 4, 2023.

REQUESTED RELIEF:

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

TENTATIVE RULING:

1.      Motion to be Relieved as Counsel is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On November 4, 2021, Plaintiff Eduardo Amezcua Fuentes (“Plaintiff”) filed a complaint against Defendants Shoreline Tire & Auto Inc., and John Modugno (“Defendants.”) The complaint raised 15 causes of action, including various Labor Code and FEHA violations. Plaintiff alleges that he worked for Defendants starting in June 2020 and ending in February 2021. In December, Plaintiff had injuries to his left hand from repetitive work and reported the injuries to his supervisor and Defendant Modugno. Plaintiff went to the hospital and primary care doctor, and was told to take time off. When Plaintiff returned, he requested accommodations but was wrongfully terminated. Plaintiff also alleges that while working for Defendants, he did not receive full compensation, was not allowed to take breaks, and did not receive wage statements.

On January 27, 2022, Defendants Shoreline Tire & Auto Inc., and John Modugno filed an Answer.

On March 30, 2023, Defendants’ Attorney, Thomas F. Nowland, filed the current Motion to be Relieved as Counsel. No Opposition has been filed as of May 4, 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, Thomas F. Nowland, moves to be relieved as counsel for Shoreline Tires & Auto Inc.

In the Declaration in Support of Attorney’s Motion to be Relieved as Counsel, counsel indicates that Defendant is in breach of the retainer agreement and is consistently uncooperative with counsel.

“The rule is clear in this state that, with the sole exception of small claims court, a corporation cannot act in propria persona in a California state court.” (Thomas G. Ferruzzo, Inc. v. Superior Court (1980) 104 Cal.App.3d 501, 503.) However, the court went on to say the following:

The first is the principle supported by Merco 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.

(Id. at 504.)

            Here, the Declaration submitted by counsel indicates that the corporate client is consistently uncooperative. Thus, the Court assumes substituting in a new attorney would likely be futile. Thus, The Court may allow withdrawal since the corporate client is already uncooperative with counsel.

            Additionally, the Court finds that the reasoning is sufficient to be relieved as counsel. While the trial date is upcoming, the Court does not find any reason why the matter cannot be pushed back to allow for Defendant to obtain new counsel. There have been no other operative motions filed in this matter and therefore, it is unlikely that Plaintiff will suffer prejudice if the trial is continued to a later date.

            Motion to be Relieved is GRANTED effective upon filing proof of service of this order on each Defendant.

Conclusion:

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

Motion to be Relieved is GRANTED effective upon filing proof of service of this order on each Defendant.

Moving party is to give notice. 

IT IS SO ORDERED. Dated:             May 9, 2023        
        
                                                                                                        _________________________________                                        
                                                                                                             Upinder S. Kalra

                                                                                                           Judge of the Superior Court