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This case was last updated from Los Angeles County Superior Courts on 04/18/2019 at 08:56:48 (UTC).

ABEL CONTRERAS ET AL VS PACER CARTAGE INC ET AL

Case Summary

On 12/23/2014 ABEL CONTRERAS filed a Labor - Other Labor lawsuit against PACER CARTAGE INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MICHAEL P. LINFIELD and WILLIAM A. MACLAUGHLIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7807

  • Filing Date:

    12/23/2014

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MICHAEL P. LINFIELD

WILLIAM A. MACLAUGHLIN

 

Party Details

Plaintiffs

CAMPOS ALFONSO LIMON

CONTRERAS ABEL

ESCOBAR ALMA DELIA

GARCIA ALEJANDRO

GOMEZ ANGEL

VELASCO ALEJANDRO

ACOSTA JOSE R

ALDANA JUAN O

ALFARO BENJAMIN C

ALVARADO EDWIN H

ARCEO VAHE OLMASSAKIAN VICENTE

ARGUETA LEX

BARRERA BENJAMIN A

BARRERA CARLOS

BARRETO JOSE

BAUTISTA MIGUEL A

CANALES HUMBERTO

CARRILLO BONIFACIO

CHAVEZ JAIME V

CONTRERAS MIGUEL

59 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

KORREY DAVID M. ESQ.

MCAVOY & RIVERA

DAVID M. KORREY LAW OFFICES OF

GOMEZ LAW GROUP

GOMEZ ALVIN M. ESQ.

KORREY DAVID M.

SHACKELFORD PATRICIA ANN

RIVERA D. BRIANA

Other Attorneys

SCOPELITIS GARVIN ET AL. PC [IN]

SCOPELITIS GARVIN ET AL. PLLP [CA]

WEMMER TAYLOR H.

JATANA NICKY

MCNATT CHRISTOPHER CHAD JR

OXMAN ANDREA F.

DOLLARHIDE MARY

 

Court Documents

Minute Order

1/30/2018: Minute Order

Minute Order

2/2/2018: Minute Order

Minute Order

4/19/2018: Minute Order

Declaration

10/18/2018: Declaration

Request for Judicial Notice

11/20/2018: Request for Judicial Notice

Notice of Related Case

1/31/2019: Notice of Related Case

Minute Order

3/5/2019: Minute Order

STIPULATION AND JOINDER OF PLAINTIFFS; ORDER THEREON.

8/21/2015: STIPULATION AND JOINDER OF PLAINTIFFS; ORDER THEREON.

Minute Order

12/15/2015: Minute Order

ORDER GRANTING ADMISSION PRO HAC VICE OF E. ASHLEY PAYNTER

5/16/2016: ORDER GRANTING ADMISSION PRO HAC VICE OF E. ASHLEY PAYNTER

Minute Order

2/2/2017: Minute Order

PLAINTIFFS? REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

3/15/2017: PLAINTIFFS? REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

Minute Order

4/12/2017: Minute Order

DECLARATION OF D. BRIANA RIVERA IN SUPPORT OF R/S CONTRERAS PLAINTIFFS' MOTION IN LIMINE NO.13 TO EXCLUDE ARGUMENT AND EVIDENCE OF FAIRNESS AND REASONABLENESS OF EQUIPMENT LEASE AGREEMENT

6/26/2017: DECLARATION OF D. BRIANA RIVERA IN SUPPORT OF R/S CONTRERAS PLAINTIFFS' MOTION IN LIMINE NO.13 TO EXCLUDE ARGUMENT AND EVIDENCE OF FAIRNESS AND REASONABLENESS OF EQUIPMENT LEASE AGREEMENT

R/S CONTRERAS PLAINTIFFS' MOTION IN LIMINE NO.9 TO PREVENT DEFENDANTS FROM ARGUING THAT TRUCK LEASE PAYMENTS ARE NOT REIMBURSABLE EXPENSES

6/26/2017: R/S CONTRERAS PLAINTIFFS' MOTION IN LIMINE NO.9 TO PREVENT DEFENDANTS FROM ARGUING THAT TRUCK LEASE PAYMENTS ARE NOT REIMBURSABLE EXPENSES

DECLARATION OF CHRISTOPHER C. MCNATT, JR. IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE NO. 8

6/30/2017: DECLARATION OF CHRISTOPHER C. MCNATT, JR. IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE NO. 8

NOTICE RE: CONTINUANCE OF HEARING

7/6/2017: NOTICE RE: CONTINUANCE OF HEARING

R/S CONTRERAS PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO.4 TO PRECLUDE EVIDENCE OF ANY ALLEGED MEAL OR ETC

7/10/2017: R/S CONTRERAS PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO.4 TO PRECLUDE EVIDENCE OF ANY ALLEGED MEAL OR ETC

329 More Documents Available

 

Docket Entries

  • 04/11/2019
  • at 08:30 AM in Department 89, William A. MacLaughlin, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court

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  • 04/11/2019
  • at 08:30 AM in Department 89, William A. MacLaughlin, Presiding; Final Status Conference - Held

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  • 04/11/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 04/10/2019
  • Notice of Appearance; Filed by XPO CARTAGE, INC. (Defendant)

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  • 03/05/2019
  • at 08:21 AM in Department 34; Court Order - Held

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  • 03/05/2019
  • Minute Order ((Court Order) of 03/05/2019); Filed by Clerk

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  • 03/05/2019
  • Certificate of Mailing for (Minute Order (Court Order) of 03/05/2019); Filed by Clerk

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  • 03/05/2019
  • Notice of Related Case; Filed by Abel Contreras (Plaintiff); Alejandro Garcia (Plaintiff); Alejandro Velasco (Plaintiff) et al.

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  • 02/28/2019
  • at 08:30 AM in Department 89, William A. MacLaughlin, Presiding; Final Status Conference - Held - Continued

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  • 02/28/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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666 More Docket Entries
  • 04/09/2015
  • NOTICE OF ASSOICATIN OF COUNSEL

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  • 03/03/2015
  • Notice; Filed by Plaintiff/Petitioner

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  • 03/03/2015
  • NOTICE OF SUBSTITUTION OF COUNSEL

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  • 02/24/2015
  • ANSWER OF DEFENDANTS PACER CARTAGE, INC., PACER INTERNATIONAL, INC., AND XPO LOGISTICS, INC. TO COMPLAINT

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  • 02/24/2015
  • Answer; Filed by Defendant/Respondent

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  • 01/06/2015
  • Notice of Case Management Conference; Filed by Clerk

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  • 01/06/2015
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 12/23/2014
  • Complaint; Filed by Abel Contreras (Plaintiff); Alejandro Garcia (Plaintiff); Alejandro Velasco (Plaintiff) et al.

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  • 12/23/2014
  • COMPLAINT FOR DAMAGES FOR: (1) VIOLATION OF LABOR CODE 226.8(A)(I) (EMPLOYMENT MISCLASSIFICATION); ETC

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  • 12/23/2014
  • SUMMONS

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Tentative Rulings

Case Number: BC567807    Hearing Date: October 07, 2020    Dept: 34

SUBJECT: Motion for New Trial

Moving Party: Plaintiff Alma Delia Escobar

Responding Party: Defendants XPO Cartage, Inc., Pacer International, Inc., and XPO Logistics Cartage, LLC

Plaintiff’s motion for new trial is DENIED.

BACKGROUND:

This case began more than five years ago with some 85 plaintiffs suing Defendants for various Labor Code violations, stemming in large part, because defendants allegedly misclassified plaintiffs as independent contractors instead of employees.

All of the plaintiffs except for Alma Delia Escobar eventually settled their cases. By the time Ms. Escobar’s case went to trial, she was representing herself. A two-day court trial was held on January 13-14, 2020. On January 14, 2020, the Court granted Defendants’ request for non-suit pursuant to CCP §631.8. At the time, the Court stated on the record that Defendants had not proved that Ms. Escobar was an independent contractor under the Dynamex ABC test, and that for purposes of the §631.8 motion the Court believed that Ms. Escobar was an employee, not an independent contractor. (See Dynamex v. Superior Court (2018) 4 Cal.5th 903.) However, the Court granted Defendants’ motion for non-suit because Ms. Escobar did not meet her burden to prove damages. (See Reporter’s Transcript of January 14, 2020 hearing.)

On June 18, 2020, the Court signed and filed the judgment in favor of Defendants XPO Cartage, Inc., XPO Logistics, Inc., Pacer Cartage, Inc., and Pacer International, Inc. pursuant to Code of Civil Procedure section 631.8.

On June 18, 2020, the clerk certified that the Notice of Entry of Judgment of June 18, 2020 was mailed to the parties.

On July 1, 2020, the Court granted costs for defendants against Plaintiff in the amount of $2,622.60.

On July 7, 2020, Plaintiff filed a notice of intent to move for new trial and filed a substitution of attorney, replacing herself with attorney Jose Mariano Castillo.

On July 17, 2020, Plaintiff filed the instant motion for new trial, pursuant to Code of Civil Procedure section 659, subdivision (a).

ANALYSIS:

I. Motion for New Trial

A. Defendants’ Evidentiary Objections

Objections to the declaration of Alma Escobar:

Objection

1

OVERRULED

2

OVERRULED

3

OVERRULED

4

OVERRULED

5

OVERRULED

6

OVERRULED

7

OVERRULED

8

OVERRULED

9

OVERRULED

10

OVERRULED

Objections to the declaration of José Mariano Castillo:

Objection

1

OVERRULED

2

OVERRULED

3

OVERRULED

4

OVERRULED

5

OVERRULED

6

SUSTAINED

7

OVERRULED

8

OVERRULED

B. Legal Standard

“A motion for new trial is a creature of statute; . . .” (Neal v. Montgomery Elevator Co. (1992) 7 Cal. App. 4th 1194, 1198.) A movant must satisfy Code of Civil Procedure sections 657 and 659.

Code of Civil Procedure section 659, subdivision (a) provides:

“The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either:

“(1) After the decision is rendered and before the entry of judgment.

“(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.” (Code Civ. Proc., § 659, subd. (a).)

“A trial court gains jurisdiction to hear such a motion only after a party files a timely notice of intent and judgment has been entered.” (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 336.)

Under Code of Civil Procedure section 657, a motion for new trial may be granted if there is any:

“[¶] 1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. [¶] 3. Accident or surprise, which ordinary prudence could not have guarded against. [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. [¶] 5. Excessive or inadequate damages. [¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application.” (Code Civ. Proc., § 657.)

“An ‘irregularity in the proceedings’ is a catchall phrase referring to any act that (1) violates the right of a party to a fair trial and (2) which a party ‘cannot fully present by exceptions taken during the progress of the trial, and which therefore must appear by affidavits.’” (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1229-1230, quoting Gay v. Torrance (1904) 145 Cal. 144, 149.)

Courts have interpreted the meaning of “newly discovered evidence” pursuant to Code of Civil Procedure section 657(4) as evidence which was in existence at the time of the trial and which “could not have been discovered with reasonable diligence.” (Aron v. WIB Holdings (2018) 21 Cal.App.5th 1069, 1079.)

C. Discussion

1. Timeliness of Motion

Defendants argue that Plaintiff’s request for new trial must be denied because Plaintiff failed to timely file her notice of intention to move for a new trial. (Opp., p. 10:5-7.)

Plaintiff states that her motion is timely, because although the notice of entry of judgment was mailed on June 18, 2020, Plaintiff did not receive it until June 22, 2020. (Rebuttal, p. 2:1-3.) Plaintiff argues that “it was impossible for the Plaintiff to have given her notice of intent to move for new trial before she was aware that a judgment had been entered.” (Id. at p. 2:12-13.)

Plaintiff’s motion for new trial is untimely, as the certificate of mailing of the notice of entry of judgment states that notice was mailed on June 18, 2020 and Plaintiff did not file her intent to move for new trial until July 7, 2020. (See Code Civ. Proc., 659, subd. (a).) However, due to the circumstances surrounding the COVID-19 pandemic which could have likely delayed the time in which Plaintiff received notice of entry of judgment, the Court believes that substantial justice will be served by reaching the merits of the motion for new trial.

2. Merits

Plaintiff moves for new trial on the grounds that there were irregularities in trial and that Plaintiff has newly-discovered documentary evidence to prove her damages.

i. The Evidence Plaintiff Wishes to Present is not Newly-Discovered Evidence

Plaintiff argues that she “has newly discovered documentary evidence to be introduced at the new trial to prove her damages.” (Motion, p. 3:8-9.) Plaintiff asserts that “the evidence includes receipts and other related items which she had in her possession at the time of trial but did not know how to present it in court.” (Id. at p. 3:9-10.)

In opposition, Defendants argue that “Plaintiff concedes that she was already in possession of her alleged newly discovered evidence at the time of trial.” (Opp., p. 12:26-27.) Defendants also maintain that “Plaintiff had ample opportunity to produce these documents to Defendants’ counsel prior to the close of discovery, or at the very least before trial began.” (Id. at p. 13:2-3.) Defendants assert that they “made repeated requests to both Plaintiff and her prior counsel, Rivera & Shackelford P.C., to produce all documents and damages calculations prior to trial. (Id. at p. 13:3-6, citing Oxman Decl., ¶ 4, Ex. B, 12/18/19 Trial Transcript, p. 11:9 -18, 1/13/20 Trial Transcript, p. 20:27 – p. 21:17.) Defendants argue that despite this, “the Court still generously admitted all of the documents Plaintiff brought with her to the first day of trial on December 18, 2019, over Defendants’ objections and motion in limine that these documents be excluded given they were not previously produced prior to the close of discovery.” (Id. at p. 13:6-10, citing Oxman Decl., ¶ 5, Ex. C, 1/13/20 Trial Transcript, p, 52:8-11.)

The Court agrees with Defendants; Plaintiff concedes that this documentary evidence is not newly-discovered. (Motion, p. 3:9-10.) Plaintiff was given an opportunity to present this evidence at trial and the Court considered the evidence provided by Plaintiff. Before recessing the trial on December 18, 2020, the Court advised Plaintiff that she must prove damages at the next hearing:

Court:

“It's your burden to prove how much money you're owed.

“So just giving the court a thousand receipts is not sufficient. I cannot go through a thousand paycheck stubs and determine what each deduction is or total the deductions or determine how much you spent on this or that.

“That will be your job, to – to summarize that and to put that into some type of form that i can see and that the defendants can see and testify to what you believe your damages are. And you'll have certainly between now and when we reconvene on January 13th, if you have not done so already.

“But, you know, you cannot just hand me three manila envelopes of receipts and ask me to go through all of them and determine how much you believe you should be reimbursed. It's your obligation to compile that information, and then you'll have the receipts to back up your information.

“For instance, if you say that you spent $3,000 – $3,400 on gasoline, you can say that, and then you could say, ‘here are the receipts that show it,’ and tell me the pages. Or that you spent $243.80 on something –

Ms. Escobar:

“Very well.”

(Oxman Decl., Ex B, 12/18/2019 Trial Transcript, p. 55:20 – p. 56:16.)

The Court then continued the trial for almost one month to allow Plaintiff to organize her documents in order to prove damages.

Later at trial on January 14, 2020, the Court explained to Plaintiff that “it’s not sufficient for plaintiff or any party to give the Court a one-foot stack of a thousand-plus documents and state that they prove her case.” (Oxman Decl., ¶ 6, Ex D, 1/14/20 Trial Transcript, 133:4-133:9.) Further, the Court explained to Plaintiff that most of the evidence she provided was speculative, and that Plaintiff was “unable to explain to the Court how she arrived at the various figures she came up with, other than to say she added up different receipts.” (Oxman Decl., ¶ 6, Ex. D, 1/14/20 Trial Transcript, 133:27- 134:3.)

The Court DENIES Plaintiff’s motion for new trial because she has not demonstrated that newly discovered evidence exists now that did not exist at trial.

ii. There Were No Irregularities at Trial

Plaintiff argues that the following irregularities at trial warrant a new trial: (1) Plaintiff was actively engaged in looking for new counsel to represent her; (2) Plaintiff was representing herself and “was unable to present the evidence she had in her possession at trial to prove her case”; and (3) Plaintiff’s former counsel, Attorney D. Brianna Rivera, was present in the courtroom at the time of trial and “Plaintiff verily believe [sic] that the Court had the inherent power and should have requested or even ordered Briana Rivera to assist the plaintiff in the presentation of her case.” (Motion, p. 2:6-7; p. 3:4-6; p. 3:25-28).

In opposition, Defendants argue that “Plaintiff voluntarily elected to proceed in propria persona and the Court provided her ample opportunity to present her case and evidence at trial.” (Opp., p. 14:20-21.)

The Court finds that there were no irregularities at trial due to Plaintiff voluntarily representing herself. On November 19, 2019, the Court denied Plaintiff’s counsel’s unopposed motion to withdraw. However, one week prior to that hearing, on November 12, 2019, Ms. Escobar filed a Substitution of Attorney, stating that Ms. Rivera, Rivera & Shackelford, PC, was no longer her attorney, and that she was no proceeding in pro per. (Oxam Decl., ¶ 13, Ex. E.)

At the December 3, 2019 Final Status Conference, Plaintiff confirmed to the Court that she was choosing to represent herself in his matter and at trial. (Oxam Decl., ¶ 3, FSC Transcript 12/3/19, 22:28-23:7, 32:12-32:16, Trial Transcript 12/18/19, 6:9-6:15.) At the Final Status Conference, the Court emphasized to Plaintiff that if she did not wish to represent herself, she needed to retain an attorney, either paying for one or attempting to obtain one through a public agency or legal help center. (Oxam Decl., ¶ 3, Ex. A, FSC Transcript 12/3/19, 38:26-39:8.)

Plaintiff did not indicate to the Court that she wanted to obtain other counsel instead of representing herself. As explained by Baba v. Board of Supervisors (2004) 124 Cal.App.4th 504, “the right to represent oneself in civil proceedings conducted in this state, though established by precedent rather than statute, is firmly embedded in California jurisprudence. This right is necessary to protect and ensure the free exercise of express constitutional rights, including the right to acquire and protect property and to access the courts. It is also implicitly recognized by statute. For these reasons, we conclude that the right to represent oneself in civil proceedings is a general law of this state.” (Id. at p. 526.) This Court has no choice but to honor Plaintiff’s request to represent herself.

It is true that Plaintiff’s former counsel was present, sitting the spectator portion of the courtroom, during much of the trial. Trials are, of course, public proceedings, and anyone – including Plaintiff’s former counsel – can attend the trial. However, at no time did Plaintiff inform the Court of any desire to enter into an agreement with her former counsel to represent her again. Further, Plaintiff never requested that the Court appoint her former counsel to represent her at trial. Even if Plaintiff would have made such a request, it is doubtful that the Court could have granted such a request. “[A]s a general rule, ‘there is no due process right to counsel in civil cases. [Citation.] Generally speaking, the right to counsel has been recognized to exist only where the litigant may lose h[er] physical liberty if [s]he loses the litigation. [Citation.].” (People v. $30,000 U.S. Currency (1995) 35 Cal.App.4th 936, 942.) Plaintiff has not provided any authority that the Court has the inherent power to appoint counsel in a civil matter without, or even with, a request from Plaintiff.

Consider the conundrum for the Court had Ms. Escobar asked the Court to appoint her former attorney to again represent her at trial. First, the Court does not know the details of why Ms. Rivera originally requested to be relieved as Ms. Escobar’s attorney, nor does the Court know why Ms. Escobar voluntarily chose to fire Ms. Rivera and represent herself just one month before trial. Thus, the Court would be unaware if any attorney-client conflicts existed and how they might affect Ms. Rivera’s representation of Ms. Escobar.

Further, the Court does not have the power to order Ms. Rivera to volunteer her time to represent Ms. Escobar. The Court also has no funds to compensate Ms. Rivera for her representation. It is equally beyond the Court’s power to have ordered Ms. Escobar to pay – either in cash or on a contingency basis – for Ms. Rivera’s representation at trial. Those are arrangements that must be negotiated and agreed upon between attorney and client.

The Court believes that there should be a procedure for indigent pro per civil litigants to be appointed counsel – i.e., a “civil Gideon.” However, that is not currently the law.

“Providing access to justice for self-represented litigants is a priority for California courts.” (California Rules of Court, rule 10.960, subdivision (b).) Plaintiff acknowledges “that the Judge in this case did a good job in granting the Plaintiff some leeway in her attempted presentation.” (Motion, p. 2:26-27.)

As the Court stated at the end of the trial, “This Court has tried to bend over backwards to try to allow Ms. Escobar to present her case. The defendants have been upset about that at times.” (Oxman Decl., Ex. D, 1/14/20 Trial Transcript, p. 135:3-5.) It was proper for the Court to do so.

“[W]hen a litigant is self-represented, a judge has the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law and the canons, to enable the litigant to be heard.” (See also ABA Model Code of Jud. Conduct, canon 2, rule 2.2, com. 4 [“[i]t is not a violation of this Rule [regarding impartiality and fairness] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard”].) The canons and commentary thus provide a path to ensure a self-represented litigant can be fairly heard on the merits while the court maintains its impartiality and does not assume (or appear to assume) the role of advocate or partisan. (See Cal. Code Jud. Ethics, canon 3 [“a judge shall perform the duties of judicial office impartially, competently, and diligently”].)” (Holloway v. Quetel (2015) 242 Cal.App.4th 1425, 1434.)

However, for the Court to have done more, the Court would have become an “advocate or partisan” for Plaintiff. (Id.) This the Court could not do.

The Court finds that it acted within its power to provide access for self-represented litigants and that no irregularity existed that would warrant a new trial based on Plaintiff’s status appearing in propria persona.

D. Conclusion

At the conclusion of trial on January 14, 2020, the Court made the following statement on the record:

“I’ve done everything I could to allow Ms. Escobar to present her case. I don’t believe I’ve taken sides on this case.

“This is a case that started with perhaps 90 plaintiffs. All of the plaintiffs settled the case and received and acceptable settlement.

“I don’t know the details of all of the settlements, but two of them were approved by this Court in the last few weeks, and they were settlements of a substantial amount.

“Plaintiff, Ms. Escobar, chose not to settle, which she has every right to do so. She has chosen to dismiss her attorney and represent herself in this matter.

“I empathize with Ms. Escobar’s plight. Based on the testimony presented so far to this Court, the Court would find that plaintiff was an employee of Pacer and believes, at least with the testimony presented up until know, that Pacer did not pay her all of the amounts due her as an employee under the law. But plaintiff has not proven her case, including proving the amount of damages.

“The Court is going to grant defendant’s motion to judgment under 631.8 for all causes of action.” (Oxman Decl., Ex. D, 1/14/20 Trial Transcript, p. 135:28 – p. 136:24.)

The Court still feels sorry for Plaintiff and continues to empathize with her plight. But sorrow and empathy are not sufficient reasons for granting a new trial.

The Court DENIES Plaintiff’s motion for new trial.

 

Case Number: BC567807    Hearing Date: July 01, 2020    Dept: 34

Court's Ruling on Defendants’ Memorandum of Costs

This case began more than five years ago with some 85 plaintiffs suing Defendants for various Labor Code violations, stemming in large part, because defendants allegedly misclassified plaintiffs as independent contractors instead of employees.

All of the plaintiffs except for Alma Delia Escobar eventually settled their cases. By the time Ms. Escobar’s case went to trial, she was representing herself. A two-day court trial was held on January 13-14, 2020. On January 14, 2020, the Court granted Defendants’ request for non-suit pursuant to CCP §631.8. At the time, the Court stated on the record that Defendants had not proved that Ms. Escobar was an independent contractor under the Dynamex ABC test, and that for purposes of the §631.8 motion the Court believed that Ms. Escobar was an employee, not an independent contractor. (See Dynamex v. Superior Court (2018) 4 Cal.5th 903.) However, the Court granted Defendants’ motion for non-suit because Ms. Escobar did not meet her burden to prove damages. (See Reporter’s Transcript of January 14, 2020 hearing.)

On 3/12/2020, Defendants filed a Memorandum of Costs, requesting $152,327.76 in costs from Ms. Escobar.

Ms. Escobar, who is now in pro per, has not filed a Motion to Tax Costs. Nonetheless, despite the fact that there is no Motion to Tax Costs, the Court is required to award only “reasonable” costs. (CCP §1033.5(c)(2).)

The request for $152,327.76 in costs against a single pro-per plaintiff, whose court trial lasted two days, is not reasonable.

After carefully analyzing the Memorandum of Costs submitted by the defendants, the Court finds the following costs reasonable:

· Motions: the Court finds that the request for costs for the following motions relate to Ms. Escobar and hence are reasonable:

o Motion to Bifurcate

o Stipulation re Witnesses and Exhibits

o Trial Brief

· Service of Process: Only four of the requested services of process related to Ms. Escobar.

· Witness fees: Defendants seek expert witness fees of $137,538.50, for Defendants' designated experts James Freund and Dr. Jonathan Walker of Economists, Inc. to testify at trial. (Declaration of Oxman, ¶ 21.) Defendants' counsel acknowledges that “neither expert testified because on January 14, 2020, the Court granted Defendants' Request for Judgment.” (Ibid.) The Court, in its discretion, finds that Plaintiff is not liable for Defendants' post-offer expert witness fees, especially because they did not testify at trial. (Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 520; Heimlich v. Shivji (2019) 7 Cal.5th 350, 359.)

· Court Reporter Fees: Defendant requests costs for the Court Reporter for trial on 1/14/2020 and 1/15/2020. (See Memorandum of Costs Worksheet, p. 6:2-3.) The Court believes this is a typo, as trial was held on 1/13/2020 and 1/14/2020. The Court finds that the Court reporter for these two days was reasonable.

· Models and Enlargements: None were used in the trial regarding Ms. Escobar; the Court in its discretion declines to award fees for these items.

· Electronic Filing: the Court finds that the request for electronic costs for the following pleadings relate to Ms. Escobar and hence are reasonable:

o Motion to Bifurcate

o Trial Brief

o Joint Witness lists

o Notice of Continuance

Given these findings, the Court awards reasonable costs for defendants against Ms. Escobar in the amount of $2,622.60 as indicated in the spreadsheet below:

CATEGORY

AMOUNT REQUESTED

AMOUNT TAXED

REASONABLE AMOUNT GRANTED

1

Filing and motion fees

$251.53

$139.78

$111.75

2

Jury fees

$0.00

$0.00

$0.00

3

Jury food and lodging

$0.00

$0.00

$0.00

4

Deposition costs

$0.00

$0.00

$0.00

5

Service of process

$5,324.28

$5,212.61

$111.67

6

Attachment expenses

$0.00

$0.00

$0.00

7

Surety bond premiums

$0.00

$0.00

$0.00

8

Witness fees

$137,538.50

$137,538.50

$0.00

9

Court-ordered transcripts

$0.00

$0.00

$0.00

10

Attorneys fees

$0.00

$0.00

$0.00

11

Court reporter fees

$4,798.18

$2,620.90

$2,177.28

12

Models, blowups, photocopies

$4,003.87

$4,003.87

$0.00

13

Interpreter fees

$0.00

$0.00

$0.00

14

Fees for electronic filing or service

$411.40

$189.50

$221.90

15

Fees for hosting electronic documents

$0.00

$0.00

$0.00

16

Other

$0.00

$0.00

$0.00

TOTAL

$152,327.76

$149,705.16

$2,622.60

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.

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