BEN MARC GOLUB VS U TURN SEVEN CORPORATION ET AL

Tentative Rulings

Case Number: BC632791    Hearing Date: December 04, 2019    Dept: 24

Thomas K. Agawa’s motion to be relieved as counsel is GRANTED.

On September 6, 2016, Plaintiff Ben Marc Golub filed the instant wrongful termination/wage and hour suit against Defendants U-Turn Seven Corporation (“USC”), 2 U-Turn Restaurant LLC (“2UR”), Rafik Mgaieth, Jonathan Magaieth, and Yoann Mgaieth. Defendants had their answers stricken by the Court and their default entered after their failure to appear on June 21, 2018 for an OSC. However, on October 25, 2019, Plaintiff filed a First Amended Complaint (“FAC”), which asserts six causes of action for 1) unpaid minimum wage and overtime compensation; 2) unpaid premium wages for meal and rest periods not received; 3) unfair competition; 4) unpaid continuing wages; 5) wrongful termination; and 6) accounting. Defendants have not answered the FAC.

On October 29, 2019, 2UR’s counsel Thomas K. Agawa (“Counsel”) filed the instant motion to be relieved. On November 14, 2019, Plaintiff filed an opposition. No reply was submitted.

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. (CCP § 284(2).) The attorney seeking to withdraw must take “reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel.” (Cal. Rules of Prof. Conduct, 3-700(A)(2). See, e.g., Vann v. Shilleh (1975) 54 Cal.App.3d 192 [holding withdrawal prejudicial where attorney withdraw from the representation of defendant on the Friday before trial began the following Monday].) “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), MC-052 (Declaration), and MC-053 (Proposed Order). (CRC 3.1362(a), (c), (e).) The requisite forms must be served “on the client and on all parties that have appeared in the case.” (CRC, 3.1362(d).) When a client is served by mail, the attorney’s declaration must indicate that the client’s address was confirmed within the last 30 days and how it was confirmed. (Id.) If the attorney is unable to confirm the client’s current address, the declaration must state the reasonable efforts made within the last 30 days to obtain the client’s current address. (Id.)

Additionally, the declaration “must state in general terms and without compromising the confidentiality of the attorney client relationship why” a motion is brought instead of filing a substitution of attorney. (CRC, 3.1362(c).)

Discussion

The Court finds that Counsel submits all the mandatory forms. Counsel states that an irreparable breakdown of the attorney-client relationship has occurred and there has been no communications for over a year. Counsel has served his client by mail at his last known address, which was confirmed within the past 30 days through the secretary of state website. The declaration notes the hearings on calendar. No prejudice is apparent, as trial is not set.

Plaintiff objects to the withdrawal on the basis that a corporation cannot be self-represented. Indeed, it is a long-standing rule of procedure that a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director, or other employee who is not an attorney, but must be represented by licensed counsel in proceedings before courts of record. (CLD Const., Inc. v. City of San Ramon (2004) 120 Cal. App. 4th 1141.) Plaintiff notes that the Court previously struck 2UR’s attempt to substitute itself in pro per. However, the instant scenario is readily distinguishable from Plaintiff’s cited cases or the previous attempt to substitute. 2UR is not being allowed to proceed in pro per, and must retain counsel. If 2UR does not retain counsel, then it will not be allowed to proceed in the action and will have its answer stricken—if it even answers. (Cf. Vann, supra, 54 Cal.App.3d 192 [disallowing withdrawal on the eve of trial, since withdrawal would effectively force the corporation to appear pro per].)

Plaintiff argues that he would be prejudiced by allowing Counsel for 2UR to be relieved. However, Plaintiff gives no reasoned explanation on how he would be prejudiced by Counsel’s departure, beyond an unspecified, unsupported speculation that he would have service trouble. This, of course, has no causal connection with counsel’s withdrawal. Plaintiff mentions a “risk of overlap” that might result in a lack of notice to Defendant but provides no substantive analysis on how Counsel’s withdrawal would be prejudicial. First, the FAC was already served and they have an address for 2UR’s agent of service of process. (Winnick Decl., ¶ 7; RJN Ex. F.) Further, any trouble that Plaintiff may experience with attempting to serve 2UR or any other defendant would be equally disconnected from Counsel’s withdrawal. Plaintiff does not cite any authority that Counsel must remain in the case against his will to allow Plaintiff an easier method of service.

Generally, the only concern in terms of prejudice for relieving counsel is whether the client will be prejudiced by the withdrawal. (Vann, supra, 54 Cal.App.3d at 197.) If 2UR defaults or cannot find representation, then Plaintiff would not be prejudiced at all. In fact, this is likely a benefit to Plaintiff, if anything. In any event, Plaintiff has given no authority that the Court should even consider Plaintiff’s prejudice. Moreover, Plaintiff’s identified prejudice does not appear to justify denial of the instant application. Accordingly, Counsel’s motion is GRANTED.