Tentative Rulings

Case Number: ****1456    Hearing Date: February 08, 2021    Dept: 19

RULING:

After consideration of the briefing filed, Counsel for Defendant Tradefer, LLC’s Motion to be Relieved as Counsel is DENIED without prejudice.  

Counsel for Defendant Tradefer, LLC to give notice.

STATEMENT OF THE CASE

This case arises out of wornfgul termination. On 09/04/2019, Plaintiff filed a Third Amended Complaint (“TAC”) against Defendants YBS International Group USA Inc. and Tradefer, LLC alleging the following causes of action:

1. Discrimination In Violation Of Gov’t Code ;;12940 Et Seq.;

2. Retaliation In Violation Of Gov’t Code ;;12940 Et Seq.;

3. Failure To Prevent Discrimination And Retaliation In Violation Of Gov’t Code ;12940(K);

4. Failure To Provide Reasonable Accommodations In Violation Of Gov’t Code ;;12940 Et. Seq.;

5. Failure To Engage In A Good Faith Interactive Process In Violation Of Gov’t Code ;;12940 Et Seq.;

6. For Declaratory Judgment;

7. Wrongful Termination In Violation Of Public Policy;

8. Failure To Pay Wages (Cal. Labor Code ;;201, 1182.12, 1194, 1194.2);

9. Failure To Pay Overtime Compensation (Cal. Labor Code ;;510, 1194);

10. Failure To Provide Meal And Rest Periods (Lab. Code ;;226.7, 512);

11. Failure to Provide Itemized Wage Statements (Cal. Labor Code ;; 226 et seq.);

12. Waiting Time Penalties (Cal. Labor Code ;;201-203);

13. Unfair Competition (Cal. Bus. & Prof. Code ;17200 Et Seq.);

14. Private Attorney General Act; and

15. Failure To Permit Inspection Of Personnel And Payroll Records.

On 01/12/2021, Frank Hwu of CHH Law, P.C. (“Counsel” or “Movant”), Counsel for Defendant Tradefer, LLC, filed a “Notice of Motion and Motion to be Relieved as Counsel” along with a “Declaration of Frank Hwu in Support of Motion to be Relieved as Counsel” and a proposed order.

Previously, on 09/16/2020, Counsel filed a “Notice of Disassociation of Counsel” stating that Kevin Liu of CHH Law, P.C is no longer counsel for Defendant Tradefer, LLC due to his ineligibility to practice law.

On 01/21/2021, Plaintiff Zuany Castellanos filed a timely opposition.

The Court notes that this is the second motion to be relieved filed by Counsel.

DISCUSSION

California Rules of Court, rule 3.1362 prescribes the following requirements of a movant seeking to be relieved as counsel:

1. The notice of motion and motion must be directed to the client and must use form MC-051 (“Notice of Motion and Motion to Be Relieved as Counsel-Civil”);

2. The motion must be accompanied by a declaration using form MC-052 (“Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil”) and “must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).”;

3. A proposed order must be lodged with the court along with the moving papers and must use form MC-053 (“Order Granting Attorney's Motion to Be Relieved as Counsel-Civil”) and “must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order.”;

4. “The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case” either by personal service, electronic service, or by mail.

(Cal. Rules Ct., rule 3.1362 (a) – (e).)

“If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either: (A) The service address is the current residence or business address of the client; or (B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.

(Id. at 3.1362(d).)

“Current” means that “the address was confirmed within 30 days before the filing of the motion to be relieved.” (Id.) “Merely demonstrating that the notice was sent to the client's last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current.” (Id.) “If the service is by mail, Code of Civil Procedure section 1011(b) applies.” (Id.)

Here, Counsel fails to comply with the requirements of California Rules of Court, rule 3.1362. (See Cal. Rules Court, rule 3.1362(a); id. 3.1362 at (c)-(e).) Counsel’s Notice of Motion and Motion to Be Relieved as Counsel and Declaration do not use the mandatory Judicial Council Forms MC-051 and MC-052, respectively. Further, the declaration does not state sufficient facts as to Defendant Tradefer, LLC’s current service address and telephone number, or Counsel’s efforts to locate Defendant Tradefer, LLC’s current service address.

The Court agrees with the opposition that the Court and opposing counsel need to have a way to contact Defendant Tradefer to move forward with this case. Further, the Court needs to feel confident that Defendant will receive notice of any order relieving counsel and all future dates in this action, including a Status Conference the Court will set regarding Defendant retaining new legal counsel since it cannot represent itself.

For these reasons, Counsel’s Motion is DENIED without prejudice.