Ruling
DIAO vs JIN
Jul 21, 2024 |
CVRI2303355
Motion for Summary Adjudication on
CVRI2303355 DIAO vs JIN Complaint for Other Employment (Over
$25,000) of XISI DIAO
Tentative Ruling:
This is a wage and hour case. On July 3, 2023, Plaintiff Xisi Diao (“Plaintiff”) filed a
Complaint against Defendants Peter Peng Jin (“Mr. Jin”) and Find Import Corporation (“FIC”)
(collectively, “Defendants”), alleging minimum wage violations; failure to pay overtime
compensation; rest period violations; meal period violations; waiting time penalties; failure to
timely pay wages; non-payment of wages; and unfair competition. On August 9, 2023, Defendants
filed their Answer, denying each and every allegation in the Complaint and asserting multiple
affirmative defenses, including, among other things, that Plaintiff’s claims are barred by the statute
of limitations and that Plaintiff was an “exempt” employee.
***
Plaintiff now moves for summary adjudication as to her second (unpaid overtime), third
(rest period violations), fourth (meal period violations), fifth (waiting time penalties), and eighth
(unfair competition) causes of action on the grounds that (1) Defendants concede that Plaintiff was
a “non-exempt” employee, (2) the parties agree on the precise hours worked by Plaintiff; and (3)
there are no percipient witnesses to refute Plaintiff’s claims related to rest period and meal period
violations. Plaintiff thus argues that the Court can award her damages as to these four (4) causes
of action.
In opposition, Defendants argue that there are enumerable triable issues of material fact
that precludes summary adjudication, and that Plaintiff has failed to meet her initial burden.
Specifically, Defendants argue that there are triable issues of material fact regarding the hours
Plaintiff claims she worked without compensation and Plaintiff’s claim for meal and rest period
violations. Defendants further argue that Plaintiff’s claim for waiting time penalties is without
basis and summary adjudication should be denied.
In reply, Plaintiff argues that Defendants’ separate statement fails to comply with CRC
Rule 3.1350 and should be disregarded altogether. Plaintiff otherwise objects to Defendants’
evidence in opposition to her motion, and asks the Court to grant her motion in its entirety.
Request for Judicial Notice
Defendants ask the Court to take judicial notice of the following documents:
• The Small Business Administration Governmental Agency’s Release of Businesses
that have received Emergency Pandemic Loans published by the Dessert Sun
Newspaper Publication (Exhibit A).
• Document entitled “First Draw PPP Loan” from the official website of the United
States Government (Exhibit B).
(Defs.’ Request for Judicial Notice [“RJN”), Exs. A & B.) Exhibits A and B are not matters that
are properly subject to judicial notice under Evid. Code § 452. Even if they are, these exhibits are
not material to the Court’s resolution of the instant matter. DENY.
Evidentiary Objections
Plaintiff objects to the Declaration of Peter Peng Jin submitted in opposition to the motion
for summary adjudication. CRC Rule 3.1354(b) provides, in relevant part: “Each written objection
must . . . [q]uote or set forth the objectionable statement or material[.]” (CRC Rule 3.1345(b)(3).)
Also, “[a] party submitting written objections to evidence must submit with the objections a
proposed order.” (CRC Rule 3.1345(c).) Here, Plaintiff’s evidentiary objections are not in the
proper format and she has failed to submit a proposed order on her evidentiary objections, as
required by CRC Rule 3.1345(b) and (c). Thus, the Court should either overrule or decline to rule
on Plaintiff’s evidentiary objections. The Objections are OVERRULE.
Analysis
1. Requirements of Separate Statement
A party moving for summary judgment or summary adjudication must support the motion
with “a separate statement setting forth plainly and concisely all material facts which the moving
party contends are undisputed. Each of the material facts stated shall be followed by a reference to
the supporting evidence.” (CCP §§ 437c(b)(1) [motion for summary judgment]; 437c(f)(2)
[motion for summary adjudication “shall proceed in all procedural respects as a motion for
summary judgment”].)
The party opposing the motion must file with the opposition papers “a separate statement
that responds to each of the material facts contended by the moving party to be undisputed,
indicating whether the opposing party agrees or disagrees that those facts are undisputed. The
statement also shall set forth plainly and concisely any other material facts that the opposing
party contends are disputed. Each material fact contended by the opposing party to be disputed
shall be followed by a reference to the supporting evidence.” (CCP § 437c(b)(3) [emphasis
added].) “[I]f either party fails to comply with the applicable separate statement requirement, that
failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely
to the offending party.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133
Cal.App.4th 1197, 1209.)
“The separate statement requirement is further elaborated in [CRC Rule 3.1350(d), (f), and
(h)].” (Id.) It states, among other things, that “[t]he opposing party’s separate statement of
undisputed material facts in opposition to the motion must [] use a two-column format, repeating
in the first column each material fact claimed by the moving party to be undisputed followed by
the evidence advanced by the moving party to establish that fact and then in the second column,
directly opposite the recitation of each of the moving party’s undisputed facts, stating whether the
fact is ‘disputed’ or ‘undisputed.’” (Id. at 1209–10.) “[A]s to those facts that are disputed, the
opposing party must state in the second column, ‘directly opposite the fact in dispute, the nature
of the dispute and describe the evidence that supports the position that the fact is
controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers
in the evidence submitted.’” (Id. at 1210 [citing former CRC Rule 342(f); now CRC Rule
3.1350(f)] [emphasis added].)
Here, Defendants have failed to fully comply with the requirements for a separate statement
contained in CCP § 437c and CRC Rule 3.1350. In their opposition separate statement, Defendants
indicate which of Plaintiff’s proposed undisputed facts they contend are “disputed” and provide
references to the supporting evidence upon which it relied (except for #10 - Defendants simply
state “Disputed” without any reference to the supporting evidence or any explanation as to the
nature of their dispute.) However, Defendants fail to specify the nature of their dispute, or to
describe the evidence that support their position, as required by CRC Rule 3.1350(f). Moreover,
although Defendants, for the most part, refer to their evidence by title (i.e., Jin Declaration) and
paragraph number, they do not include page and line number citations, an additional requirement
of CRC Rule 3.1350(f). Defendants also “clump together” multiple paragraphs of the Jin
Declaration as authority for disputing Plaintiff’s material facts. (See Defs.’ Opp. to Pl.’s Separate
Statement of Undisputed Material Facts [“DSS”] ¶¶ 13, 15, 17–18, 21–22 [“Disputed. Jin
Declaration, paragraphs 5 through 16.”].)
In the absence of an adequate separate statement from the opposing party, the trial court
has the right to refuse to proceed with a summary adjudication motion, and to continue the hearing
conditioned on a payment of an award of fees and costs imposed as a sanction against the opposing
party to permit the opposing party to prepare and file a proper separate statement and to allow the
moving party to file a new reply memorandum. (Parkview Villas Assn., Inc., supra, 133
Cal.App.4th at 1211–12.) The trial court also has the discretion to proceed on the merits of the
motion notwithstanding the failure to comply with procedural requirements for opposition separate
statements where the claims are relatively simple and the evidence is not extensive. (Id. at 1212.)
The Court will exercise its discretion and proceed on the merits despite Defendants’
inadequate opposition separate statement.
2. Merits
A party may move for summary adjudication as to one or more affirmative defenses if the
party contends that there is no merit to an affirmative defense. A motion for summary adjudication
shall be granted only if it completely disposes of an affirmative defense. (CCP § 437c(f)(1).) Under
CCP §437c(c), the court must grant summary adjudication “if all the evidence submitted and ‘all
inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or
evidence, show that there is no triable issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” (Adler v. Minor Healthcare Corp. (1992) 7 Cal.App.4th
1110, 1119.)
As to each defense as framed by the answer, a plaintiff moving for summary adjudication
must satisfy the initial burden of proof by presenting facts to negate an affirmative defense. (CCP
§ 437c(p)(2); Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally
construe the evidence in support of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th
384, 389.)
Once the plaintiff has met its burden, the burden shifts to the defendant to show that a
triable issue of one or more material facts exists as to an affirmative defense. (Id.) “[I]n order to
avert summary [adjudication] the [party opposing the motion] must produce substantial responsive
evidence sufficient to establish a triable issue of material fact on the merits of the [plaintiff’s]
showing. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Plaintiff moves for summary adjudication on the second (unpaid overtime), third (rest
period violation), fourth (meal period violation), fifth (waiting time penalties), and eighth (unfair
competition) causes of action in the Complaint.
A. 2nd Cause of Action: Unpaid Overtime (Issue No. 1)
Plaintiff moves for summary adjudication on her second cause of action for failure to pay
overtime compensation, in violation of Lab. Code § 510, IWC Order 1-2001, that Defendants owe
her unpaid overtime pay.
The elements of an unpaid overtime claim are: (1) that the plaintiff performed work for the
defendant; (2) that the plaintiff worked overtime hours; (3) that the defendant knew or should have
known that the plaintiff had worked overtime hours; (4) that the plaintiff either was not paid
overtime or was paid less than the overtime rate for some or all of the overtime hours worked; and
(5) the amount of overtime pay owed. (CACI 2702.)
Here, Plaintiff’s evidence show that she was employed by Defendants from July 4, 2019
to June 22, 2022, to work in their warehouse as an order fulfillment specialist (PSS ¶¶ 1–3); that
Plaintiff’s duties primarily consisted of receiving shipments of goods at the warehouse, packaging
them for customers, and then arranging them to ship out (PSS ¶ 6); that throughout her
employment, Plaintiff was a non-exempt employee, and worked as a salaried employee from April
1, 2020 to May 31, 2022 for $5,000 monthly salary (PSS ¶¶ 7–9); that between April 2020 and
May 2022, Plaintiff regularly worked overtime hours, and at times, worked over 12 hours per day
based on her clock in/clock out records (PSS ¶ 13); that Plaintiff was never paid any additional
wages or overtime payments (PSS ¶¶ 17–18); and that during the covered period, Plaintiff worked
1,208 overtime (1.5 times) hours and 56 (double time) hours, resulting in overtime damages of
$50,237.95 (PSS ¶¶ 21–22).
Defendants’ evidence, on the other hand, show that Plaintiff’s claim for unpaid overtime
is based solely on time entries prepared and entered by her, using a time clock app which she had
sole and complete control over; that this time clock app was utilized by Plaintiff without any
oversight; that the records were not prepared or reviewed by Defendants; that Defendants were
unable to monitor or supervise Plaintiff, and had no knowledge that Plaintiff was entering time
records establishing more than eight (8) hours of work each day; that during 2021 through the end
of Plaintiff’s employment in 2022, the work load was particularly light; that the shipping and
receiving that Plaintiff was responsible for only occurred a few times during the day and there was
no need to work beyond an eight (8) hour shift; and that Defendants had no knowledge of
Plaintiff’s claim of overtime and were never informed of Plaintiff’s need to do so. (See Jin Decl.
¶¶ 5–16.)
Based on the above, there is at least a triable issue of material fact regarding Plaintiff’s
claim for overtime. Thus, the Court denies Plaintiff’s motion for summary adjudication as to the
second cause of action for unpaid overtime (Issue No. 1). DENY.
B. 3rd and 4th Causes of Action: Rest and Meal Period Violations (Issue Nos. 2 & 3)
Plaintiff moves for summary adjudication on her third and fourth causes of action for rest
and meal period violations, under Lab. Code § 226.7 and IWC Order 1-2001, that Defendants owe
her unpaid rest and meal period wage premium pay.
California law provides that every non-exempt employee must be provided with a 30-
minute meal period for every five hours worked and a 10-minute rest period for every four hours
worked. (Cal. Code Regs., tit. 8, § 11090(11) & (12); see also Lab. Code § 226.7(c).) “If an
employer fails to provide an employee a meal or rest or recovery period in accordance with a state
law, including, but not limited to, an applicable statute or applicable regulation, . . . the employer
shall pay the employee one additional hour of pay at the employee’s regular rate of compensation
for each workday that the meal or rest or recovery period is not provided.” (Lab. Code § 226.7(c);
see Cal. Code Regs., tit. 8, § 11090(11)(D) [meal periods] & (12)(B) [rest periods].)
Here, Plaintiff’s evidence show that during her employment, Defendants did not have a
policy manual or any written policies that discussed rest and meal periods (PSS ¶ 30); that Mr. Jin
did not tell Plaintiff, nor was Plaintiff aware that she was entitled by law to receive 10-minute rest
periods or that she was entitled to 30-minutes meal periods during her work shifts (PSS ¶ 31); that
Plaintiff’s hectic work schedule did not permit her to take rest periods or off duty meal periods,
and that on the days she had time to eat lunch, she was always “on-duty” and subject to work-
related interruptions (most commonly UPS and FedEx deliveries) (PSS ¶ 32); that Plaintiff had to
be onsite while she ate because she was required to sign off on, or receive deliveries that would
arrive at the warehouse throughout the day (PSS ¶ 33); that from July 4, 2020 to May 31, 2022,
Plaintiff worked 484 days with shifts lasting 3.5 hours or more and 481 days with shifts lasting 5
hours or more, but she never received any 10-minute rest periods or 30-minute off-duty meal
periods (PSS ¶¶ 34, 37); that Plaintiff never received wage premiums as payment for not receiving
rest or meal periods (PSS ¶¶ 35, 38); and that Plaintiff is entitled to $13,578.95 (rest period) and
$13,504.50 (meal period) in unpaid wage premiums (PSS ¶¶ 36, 39).
Defendants’ evidence, on the other hand, show that Plaintiff had time throughout the day
to take the required meal and rest breaks, as the work load was light; that UPS and FedEx deliveries
only occurred once or twice during the day in the later afternoon; that Plaintiff was often absent
from the facility and when questioned about her whereabouts, Plaintiff informed Mr. Jin that she
was offsite taking a rest or meal break; that Plaintiff had an assistant who provided assistance to
her job performance; and that Plaintiff never complained of missed meal or rest breaks and never
notified Mr. Jin that she was unable to take such breaks. (DSS ¶¶ 17–22.)
Based on the above, there is at least a triable issue of material fact regarding Plaintiff’s
entitlement to meal and rest break premium pay. Thus, the Court denies Plaintiff’s motion for
summary adjudication as to the third and fourth causes of action for rest and meal period violations
(Issue Nos. 2 & 3). DENY.
C. 5th Cause of Action: Waiting Time Penalties (Issue No. 4)
Plaintiff moves for summary adjudication on her fifth cause of action for waiting time
penalties, under Lab. Code § 203, that Defendants owe her 30 days of waiting time penalties.
Plaintiff alleges that Defendants failed to pay her unpaid overtime wages on the final day of her
employment. (Compl. ¶ 34.)
The Labor Code requires immediate payment of wages to employees who are discharged
and payment within 72 hours to those who quit. (Lab. Code § 201.) If an employer willfully fails
to pay such wages “without abatement or reduction,” the employee’s wages continue as a penalty
until paid, up to 30 days. (Lab. Code § 203.)
Here, Plaintiff’s evidence shows that, although her employment formally ended on May
31, 2022, she was asked by Mr. Jin to return to work for a few days in June 2022, with June 22,
2022 being her final day of work at FIC. (PSS ¶ 41.) As of May 20, 2024, Defendants have failed
to pay Plaintiff her unpaid wages, including her overtime wages. (Id. at ¶ 42.)
Defendants’ evidence, on the other hand, show that Plaintiff formally ended her
employment with FIC on May 30, 2022, claiming that she was unable to work; that Mr. Jin never
asked Plaintiff to return to work for a few days in June 2022, but instead, Plaintiff returned to FIC
to collect her personal items and met with one of the representatives to return the keys to FIC’s
facility that she had kept; that Plaintiff was never asked to return or to perform any work; that
when FIC’s accounting department discovered the June 2022 record that Plaintiff had entered the
facility, a courtesy check for $42 was sent to Plaintiff which she received no later than July 5,
2022; and that Defendants were never informed that Plaintiff was performing any work duties in
June 2022, or that June 22, 2022 was her last day of employment. (Jin Decl. ¶ 23.)
As discussed above, there are triable issues of material fact regarding Plaintiff’s hours
worked without compensation, including unpaid overtime wages, and rest and meal period
violations. It follows that there are triable issues of material fact as to whether Plaintiff is entitled
to waiting time penalties based on unpaid overtime wages. Thus, the Court denies Plaintiff’s
motion for summary adjudication as to the fifth cause of action for waiting time penalties (Issue
No. 4). DENY.
D. 8th Cause of Action: Unfair Competition (Issue No. 5)
Plaintiff moves for summary adjudication on her eighth cause of action for unfair
competition under Bus. & Prof. Code § 17203, that Defendants owe her restitution for unpaid
overtime.
Bus. & Prof. Code § 17203, “under the authority of which a restitutionary order may be
made, provides: ‘Any person who engages, has engaged, or proposes to engage in unfair
competition may be enjoined in any court of competent jurisdiction. The court may make such
orders or judgments . . . as may be necessary to prevent the use or employment by any person of
any practice which constitutes unfair competition . . . , or as may be necessary to restore to any
person in interest any money or property, real or personal, which may have been acquired by means
of such unfair competition.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th
163, 173 [citing Bus. & Prof. Code § 17203].) An action under the unfair competition law “is an
equitable action by means of which a plaintiff may recover money or property obtained from the
plaintiff or persons represented by the plaintiff through unfair or unlawful business practices,”
including unpaid overtime wages. (Id. [internal citations omitted].)
As discussed above, there are triable issues of material fact regarding Plaintiff’s claim for
unpaid overtime wages. It follows that there are triable issues of material fact as to whether
Defendants owe Plaintiff restitution under the unfair competition law for unpaid overtime wages.
Thus, the Court denies Plaintiff’s motion for summary adjudication as to the eighth cause of action
for unfair competition under Bus. & Prof. Code § 17203 (Issue No. 5). DENY.
Summary:
OVERRULE Plaintiff’s Evidentiary Objections. DECLINE TO RULE on Defendants’
Request for Judicial Notice. DENY Plaintiff’s Motion for Summary Adjudication on the second,
third, fourth, fifth, and eighth causes of action.
Ruling
JULIO GARCIA VS COUNTY OF LOS ANGELES
Jul 16, 2024 |
23STCV27978
Case Number:
23STCV27978
Hearing Date:
July 16, 2024
Dept:
49 Julio Garcia v. The County of Los Angeles
PLAINTIFFS SECOND AMENDED MOTION FOR DISCOVERY OF PEACE OFFICERS PERSONNEL RECORDS (PITCHESS MOTION)
MOVING PARTY:
Plaintiff Julio Garcia
RESPONDING PARTY(S): Defendant County of Los Angeles
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff Julio Garcia, a Hispanic American male, worked as a Supervising Deputy Probation Officer for the County. Plaintiff alleges Defendant County discriminated against him based on his ethnicity by transferring him to a new work location and giving him increased work compared to non-Hispanic employees. Plaintiff brings causes of action for (1) FEHA discrimination, (2) FEHA harassment, (3) FEHA retaliation, (4) failure to prevent discrimination, harassment, or retaliation, and (5) violation of Labor Code Section 1102.5.
Plaintiff now moves to compel disclosure of peace officer personnel records of Victor Banuelos, Janice Jones, Sharrieff Myers, and Jessica Carrington. Defendant opposed.
TENTATIVE RULING:
Plaintiffs Pitchess Motion is GRANTED as modified herein. Defendant is ordered to produce the subject records for in camera review.
The Court sets an in camera hearing for a date TBD in Department 49, Stanley Mosk Courthouse.
Moving party to give notice, unless waived
DISCUSSION:
Pitchess Motion
I.
Objections to Evidence
Defendant County has submitted various objections to the declaration of Plaintiff Julio Garcia. This court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)) or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)
As such, the court respectfully declines to rule on these objections. The court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.
II.
Legal Standard
The Pitchess procedure applies when discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records. (Evid. Code § 1043(a).) Obtaining discovery of peace officers personnel records is a two-step process. First, the party seeking discovery must file a motion supported by affidavits showing good cause for the discovery, first by demonstrating the materiality of the information to the pending litigation, and second by stating upon reasonable belief that the police agency has the records or information at issue. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) Second, if the Court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. (Ibid.)
This initial burden is a relatively relaxed standard[]. . . . Information is material if it will facilitate the ascertainment of the facts and a fair trial. . . . [A] declaration by counsel on information and belief is sufficient to state facts to satisfy the materiality component of that section. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086, citations omitted, emphasis added.)
III.
Analysis
Plaintiff moves for discovery of the peace officer personnel records of Janice Jones, Victor Banuelos, Sharieff Myers, and Jessica Carrington. Plaintiff contends these persons are management officials who allegedly discriminated against Plaintiff in the present case due to his Hispanic ethnicity. (Mtn. 7: 10-11.) Plaintiff seeks documents that refer, relate or reflect upon disciplinary actions taken by Jones, Banuelos, Myers, and Carrington against Hispanic-Americans such as Plaintiff, both evidencing harassment, discrimination, retaliation or failure to prevent same. (Id. 7: 11-15.)
Plaintiff Julio Garcia worked as Supervising Deputy Probation Officer at the Dorothy Kirby Center in Los Angeles County. (Compl. ¶ 6.) Plaintiff, who is Hispanic, alleges that directors at Dorothy Kirby transferred many employees of Hispanic American ethnicity to other locations and replace[d] them with African American County employees. (Id. ¶ 9.) Plaintiff further alleges that Hispanic American employees were assigned more difficult work than African American employees. (Id. ¶ 11.) Plaintiff alleges that after he raised concerns of the obvious favoritism exhibited toward African American employees, he was transferred out of the Dorothy Kirby Center in retaliation. (Id. ¶¶ 18, 20.) Plaintiff now asserts causes of action against the County for (1) FEHA discrimination, (2) FEHA harassment, (3) FEHA retaliation, (4) failure to prevent discrimination, harassment, and/or retaliation, and (5) violation of Labor Code § 1102.5.
Defendant opposes the motion. Defendant contends the discovery is a fishing expedition that seeks records irrelevant to Plaintiffs case. In particular, Defendant objects to the temporal scope of the request, which seeks records going back ten years.
Here, Plaintiff has included declarations from himself and his attorney, Steven H. Haney, demonstrating the materiality of the discovery sought. This court concludes that Plaintiff has met the good cause showing under the relatively relaxed standard in step one, as the employee records sought are clearly material to the subject matter involved in the litigation.
The court agrees with Defendant, however, that the ten-year scope is excessive, and Plaintiff has failed to establish the relevance or need for documents going back that far. Therefore, the requests are modified and limited to only documents going back five (5) years, i.e. from 2018 through 2023.
Thus, this justifies an in camera inspection of the files going back five years. (Haggerty, supra, 117 Cal. App. 4th at 1087.) At that time, this court will review those portions of the files in camera and make the standard threshold relevance analysis required under step two of the Pitchess procedure.
Accordingly, Plaintiffs Motion is GRANTED as modified herein. Defendant is ordered to produce the subject records for in camera review.
The Court sets an in camera hearing for a date TBD in Department 49, Stanley Mosk Courthouse.
Moving party is ordered to give notice, unless waived.
IT IS SO ORDERED.
Dated: July 16, 2024
___________________________________
Randolph M. Hammock
Judge of the Superior Court
Ruling
LAVONDA BRADFORD, AN INDIVIDUAL VS XPRESSGUARDS LLC, A FLORIDA LIMITED LIABILITY COMPANY
Jul 17, 2024 |
23STCV19500
Case Number:
23STCV19500
Hearing Date:
July 17, 2024
Dept:
78
Superior Court of California
¿
County of Los Angeles
¿
Department 78
¿
¿
LAVONDA BRADFORD
,
Plaintiff
(s)
,
vs.
XPRESSGUARDS LLC
, et al.,
Defendant
(
s
)
.
Case No.:¿
23STCV19500
Hearing Date:¿
July
1
7
, 2024
[TENTATIVE]
ORDER
GRANTING MOTION TO BE RELIEVED AS COUNSEL
Defendant
XpressGuards
LLC
s
(Defendant) attorney of record,
Carla J. Hartley
and
Chauncey X. McNeill
of
Dillingham & Murphy, LLP
(Counsel), moves to be relieved as counsel contending relief is necessary because of
an i
rreconcilable breakdown in the attorney-client relationship
, and that Counsel has not been paid.
Counsel declares he has served Defendant by mail at the last known address, which Counsel confirmed within the last 30 days as curren
t by telephone
. Counsel has filed proof of service of the motion, declaration, and proposed order on all parties to the action, including on
Defendant
pursuant to
California Rules Court, rule 3.1362(d). (Proof of Service,
April 4
, 2024.)
The motion is unopposed and GRANTED; the ruling is effective upon filing proof of service of the final order. Trial is currently set for
February 24, 2025
. Therefore, there is sufficient time for Defendant to seek other counsel or otherwise prepare prior to trial.
Counsel is ordered to file proof of service of the final order within ten (10 days).
The Court sets an
Order to Show Cause re: Proof of Service of the Final Order
for
___________________
.
Further, the Court notes that
a
limited liability company
may not
represent
itself.
The Court sets an
Order to Show Cause re:
Status of Legal Representation of
D
efendant
XpressGuards
LLC
for __________________.
Moving
Counsel
is ordered to give notice
.
DATED:
July
1
6
, 2024
__________________________
Hon.
Michelle C. Kim
Judge of the Superior Court
PLEASE TAKE NOTICE:
"
Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
"
If a party intends to
submit
on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party
submitting
.
"
Unless all parties
submit
by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
"
If the parties neither
submit
nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
