Judge: Upinder S. Kalra, Case: 22STCV18482, Date: 2023-05-23 Tentative Ruling

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Case Number: 22STCV18482    Hearing Date: May 23, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   May 23, 2023                                     

CASE NAME:           Bill Yarmakani v. Seismic Retrofit Solutions, Inc.

CASE NO.:                22STCV18482

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Counsel for Defendant Seismic Retrofit Solutions, Inc

RESPONDING PARTY(S): None as of May 18, 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 GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 6, 2022, Plaintiff Bill Yarmakani (“Plaintiff”) filed a complaint against Defendant Seismic Retrofit Solutions, Inc., (“Defendant.”) The complaint alleged nine causes of action that were based on various labor code violations, including discrimination, retaliation, and wrongful termination. The complaint alleges that Plaintiff was hired by Defendant as a structural designer. In Marh 2020, Plaintiff was furloughed and later returned to work in June 2020. After returning to work, Plaintiff was forced to stop working when a coworker had a family emergency. Plaintiff was told he would not be working until his coworker returned but was required to continue to work off the clock. After Plaintiff demanded he be paid for off the clock work, he was written up. Plaintiff later filed a worker’s compensation claim and was placed on leave. Later, Plaintiff was terminated.

On September 7, 2022, Defendant Seismic Retrofit Solutions, Inc., filed an Answer.

On October 5, 2022, Plaintiff filed a First Amended Complaint.

On March 15, 2023, Defendant’s counsel filed a Motion to be Relieved as Counsel. No Opposition has been filed as of May 18, 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, Sheldon Rosenfield, moves to withdraw as counsel.

In the Declaration in Support of Attorney’s Motion to be Relieved as Counsel, counsel indicates that there has been a breakdown in the attorney-client relationship and cient has failed to pay costs in breach of the written fee agreement.

“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 there has been a breakdown with the corporate client. Thus, the Court assumes substituting in a new attorney would likely be futile. Thus, the Court may allow withdrawal since the corporate client is 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 telephone. (Dec. ¶ 3(b).)

The Court finds that the reasoning is sufficient to be relieved as counsel. There have been no other operative motions filed in this matter and trial is not until November, with only reserved hearings for motions to compel. Thus, there is ample time to retain new counsel, and this matter is still less than a year old, with the complaint filed in June 2022. The Court finds that Plaintiff will not suffer prejudice if the trial, set for November 6, 2023, is continued to allow time for Defendant to retain new counsel.

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

Conclusion:

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

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

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             May 23, 2023              __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court