Judge: Wesley L. Hsu, Case: 22PSCV01040, Date: 2023-04-19 Tentative Ruling
Case Number: 22PSCV01040 Hearing Date: April 19, 2023 Dept: L
The hearing on Defendant Guy F. Atkinson Construction,
LLC’s Application of Eric A. Berg to Appear Pro Hac Vice is CONTINUED to
_________________________.
Background
Plaintiff Moore Sweeping
(“Plaintiff”) alleges as follows: Plaintiff and Defendant Guy F. Atkinson Construction,
LLC (“Atkinson”) entered into a contract dated July 19, 2019 (“Contract”),
whereby Plaintiff was to perform street sweeping services for Atkinson on State
Route 60 pavement rehabilitation project in Los Angeles County (the “Project”).
The Contract was subject to the Federal Disadvantaged Business Enterprise
(“DBE”) program requirements and Caltrans' Disadvantaged Business Enterprise
Policy. Plaintiff began work on the Project on December 29, 2019. At the
outset, Atkinson did not request more than one DBE street sweeper for the
Project. Plaintiff then became aware that Atkinson was using another company,
Century Sweeping, Inc. (“Century”) for street sweeping on the Project in
violation of the Contract terms. Plaintiff also became aware that Atkinson had
engaged in two separate DBE violations: the illegal replacement of a DBE
subcontractor and prompt payment violations. CalTrans investigated Atkinson’s
alleged violations and, in or about April 2020, found that Atkinson had indeed
committed same. Atkinson terminated the Contract without notice and without a
justifiable reason immediately following the investigation, on the basis that
Plaintiff had not obtained the required special shift letter from Atkinson’s
union to begin work at the time it was instructed to by Atkinson. Plaintiff was
the only subcontractor out of several that had this special shift letter
requirement. Atkinson and Atkinson’s union were complicit in preventing this
letter from being obtained by Plaintiff. At the time of termination of the
Contract, there remained outstanding to Plaintiff $759,739.23 left on the
Contract price. Plaintiff filed a complaint with CalTrans regarding Atkinson’s
termination of the Contract and filed a Stop Notice, but CalTrans found that
Atkinson had good cause to replace Plaintiff.
On September 12, 2022,
Plaintiff filed a complaint, asserting causes of action against Atkinson and
Does 1-50 for:
1.
Breach of Contract
2.
Breach of the Covenant of Good Faith and Fair Dealing
3.
Unfair Business Practices (Bus. & Prof. Code §
17204)
A Status Conference is
set for April 19, 2023.
Legal Standard
“A person desiring to
appear as counsel pro hac vice in a superior
court must file with the court a verified application together with proof of
service by mail in accordance with Code of Civil Procedure section 1013a of a
copy of the application and of the notice of hearing of the application on
all parties who have appeared in the cause and on the State Bar of California
at its San Francisco office. The notice of hearing must be given at the time
prescribed in Code of Civil Procedure section 1005 unless the court has
prescribed a shorter period.” (CRC Rule 9.40, subd. (c)(1).)
“The application must state: (1)
The applicant's residence and office address; (2) The courts to which the
applicant has been admitted to practice and the dates of admission; (3) That
the applicant is a licensee in good standing in those courts; (4) That the
applicant is not currently suspended or disbarred in any court; (5) The title
of each court and cause in which the applicant has filed an application to
appear as counsel pro hac vice in this state in
the preceding two years, the date of each application, and whether or not it
was granted; and (6) The name, address, and telephone number of the active
licensee of the State Bar of California who is attorney of record.” (CRC Rule 9.40, subd. (d).)
“An applicant for permission to appear as counsel pro hac vice under this rule must pay a reasonable
fee not exceeding $50 to the State Bar of California with the copy of the
application and the notice of hearing that is served on the State Bar. . .” (CRC Rule 9.40, subd. (e).)
Discussion
Atkinson moves,
pursuant to California Rules of Court Rule 9.40, for an order allowing the pro
hac vice admission of Eric A. Berg (“Berg”).
Berg attests, in Paragraph 7 of his
declaration, that he “ha[s] filed an application to appear
as counsel pro hac vice in this state in the preceding two years.” (Emphasis
added). Paragraph 8 of the application likewise states that “[i]n compliance
with Rule 9.40(d)(5), Mr. Berg has filed an application to appear as counsel
pro hac vice in this state in the preceding two years.” (Emphasis added). Rule
9.40(d)(5), however, requires that an application state “[t]he title of each
court and cause in which the applicant has filed an application to appear as
counsel pro hac vice in this state in the preceding two
years, the date of each application, and whether or not it was granted.” No
information has been provided regarding the title of each court and cause
within the last two years in which Berg filed a pro hac vice application, nor
of the date of such application(s) or its/their disposition(s).
The court will
continue the hearing to __________________________. Berg is instructed to file
and serve a supplemental declaration addressing this deficiency no later than 5
court days prior to the continued hearing date.