ABEL CONTRERAS ET AL VS PACER CARTAGE INC ET AL

Tentative Rulings

Case Number: BC567807    Hearing Date: November 19, 2019    Dept: 34

SUBJECT: Motion to Be Relieved as Counsel

Moving Party: Patricia A. Shackelford and D. Briana Rivera of Rivera & Shackelford, P.C. and David M. Korrey of Law Office of David M. Korrey, Counsel for Alma Angulo Escobar (Plaintiff/Cross-Defendant in BC567807 and BC695795)

Responding Party: None

The Court will hear from counsel and Ms. Escobar in chambers regarding this motion.

BACKGROUND:

Plaintiffs commenced this action on March 26, 2014 against defendants for: (1) violation of Labor Code § 226.8(a)(1) (Employment Misclassification); (2) violation of Labor Code §§ 221, 224, 226, and 2802 (unlawful deductions and reimbursable expenses); (3) violation of Labor Code §§ 1194, 1194.2 and 1197 (unpaid minimum wages); (4) violation of Labor Code § 203 (waiting time penalties); (5) violation of Labor Code § 204 (failure to pay all wages); (6) violation of Labor Code §§ 226.7 and 512 (meal periods); (7) violation of Labor Code §§ 226.7 and 512 (rest periods); (8) violation of Labor Code §§ 226 and 226.3 (itemized wage statements); (9) violation of Business and Professions Code § 17200; and (10) PAGA.

Plaintiffs allege that they were employed by defendants as “independent contractors,” but that they were actually employees. (Compl., ¶¶ 17-21.) Plaintiffs allege that defendants made improper and illegal deductions to plaintiffs’ wages. (Id., ¶ 22.) Plaintiffs allege that defendants illegally required plaintiffs to bear the costs of defendants’ business expenses. (Id., ¶ 23.) Plaintiffs allege that defendants failed to pay at least the minimum wage for all hours worked after deductions. (Id., ¶ 24.) Plaintiffs allege that defendants failed to provide meal and rest periods. (Id., ¶¶ 26-27.) Plaintiffs allege that they were not provided accurate itemized wage statements. (Id., ¶ 28.)

On November 12, 2019, the Court granted Patricia A. Shackelford and D. Briana Rivera of Rivera & Shackelford, P.C. and David M. Korrey of Law Office of David M. Korrey’s ex parte application to shorten time for hearing on their motion to be relieved as counsel for Alma Delia Angulo Escobar.

Before the Court is Patricia A. Shackelford and D. Briana Rivera of Rivera & Shackelford, P.C. and David M. Korrey of Law Office of David M. Korrey’s motion to be relieved as counsel.

ANALYSIS:

An attorney moving to be relieved as counsel under California Code of Civil Procedure section 284(2) must meet the requirements set out in California Rules of Court, rule 3.1362. To comply with rule 3.1362, the moving party must submit the following forms: (1) Notice of Motion and Motion to be Relieved as Counsel; (2) Declaration in Support of Attorney's Motion to be Relieved as Counsel; and (3) Order Granting Attorney's Motion to be Relieved as Counsel. (Cal. Rules of Court, rule 3.1362(a), (c), (e).) The moving party must serve the aforementioned forms on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) Further, when the client is served by mail, the attorney's declaration must show that the client's address was confirmed within the last 30 days and how it was confirmed. (Id.) Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.)

Counsel provided a notice of motion and motion to be relieved as counsel; order granting attorney’s motion to be relieved as counsel; and declaration in support of the motion to be relieved as counsel. Additionally, the declaration states that Counsel’s client has been served by mail and Counsel confirmed by text message on November 7, 2019 that address is current. (See Declaration, No. 3(a) and (b).) This motion has also not been opposed by any party to the case.

Counsel also filed a proof of service that they served their client, but the proof of service does not indicate that all the other parties who have appeared in this case have been served. The Court finds that Patricia A. Shackelford and D. Briana Rivera of Rivera & Shackelford, P.C. and David M. Korrey of Law Office of David M. Korrey have failed to serve all the other parties who have appeared in this case, in violation of California Rules of Court, rule 3.1362(d).

More importantly, the motion states that it is “made pursuant to Rules 1.16(b)(4) and 1.16(b)(10) of the California Rules of Professional Conduct (herein, ‘CRPC’)” and “the facts which give rise to the Motion are confidential and required to be kept confidential pursuant to Business and Professions Code section 6068(a), CRPC 1.6(A), and by the attorney-client privilege.” (Declaration, No. 2.)

Even if the proof of service were to indicate that the other parties have been served, the Court cannot determine whether it should grant this motion absent an in camera review regarding the reasons for this motion.

Ms. Escobar – counsel’s client who would be affected by this motion – appeared in Court at the ex parte hearing on November 12, 2019. She asked to speak privately with the Court; that request was denied. In fairness to all affected parties, the Court will hear from counsel and Ms. Escobar in chambers – outside the presence of defense counsel – regarding this matter.

The Court will hear from counsel and Ms. Escobar in chambers regarding this motion.