KENNETH KIM VS ENY ENTERPRISE INC

Case Number: BC512943    Hearing Date: October 20, 2014    Dept: 34

SUBJECT: Defense Counsel’s Motion to be Relieved as Counsel

Moving Party: Counsel Daniel M. Park, attorney of record for defendant Eny Enterprises, Inc. (“Counsel”)

Resp. Party: None

Counsel’s motion to be relieved as counsel of record for Defendant Eny Enterprises, Inc. is DENIED.

BACKGROUND:

Plaintiffs commenced this action against defendants on 6/21/13, for: (1) unlawful business practices (Bus. & Prof. Code § 17200 et seq.); (2) failure to pay overtime wages; (3) failure to provide meal breaks; (4) failure to provide rest periods; (5) Labor Code section 203 wages; (6) Labor Code section 226 damages; (7) wrongful termination in violation of public policy; (8) conversion; (9) fraud; (10 unpaid minimum wages; and (11) Labor Code section 2802 damages. The complaint pertains to allegations that Plaintiffs worked non-exempt duties at Defendants’ restaurant but Defendants failed to pay statutory minimum wages and overtime wages, failed to provide proper meal and rest breaks, failed to provide proper accounting of wages paid, and refused to permit Plaintiffs to inspect their employment records.

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. Counsel has submitted all of the mandatory forms.

The attorney in an action may be relieved at any time before or after judgment or final determination either upon consent of both client and attorney, or upon order of the court. (Code Civ. Proc., § 284.) A motion to be relieved as counsel under Code Civ. Proc., section 284, subd. (2) must comply with the requirements set forth in Cal. Rules of Court, rule 3.1362. Specifically, the accompanying declaration “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).” (Cal. Rules of Court, rule 3.1362(c).)

Under California Rules of Professional Conduct, 3-700(C), “[i]f rule 3 700(B) [mandatory withdrawal] is not applicable, a member may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because: (1) The client . . . (d) by other conduct renders it unreasonably difficult for the member to carry out the employment effectively.”

Counsel declares:

There is a breakdown in the communication process in connection with the handling of this matter between Defendants and counsel making it impossible for counsel to continue to represent Defendants. In addition, there is a break down in connection with Defendants’ responsibilities to counsel. Defendant Chin Kim will represent himself, however the motion is necessary for Defendant Eny Enterprise, Inc., because it is a corporation.

(MC-052.)

Even if all of the requirements are met, “the court has discretion to deny an attorney’s request to withdraw where such withdrawal would work an injustice or cause undue delay in the proceeding.” (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.)

On August 26, 2014, Counsel submitted a substitution of attorney form (MC-050) for individual defendant Chin Young Kim, who is now representing himself in pro per. Counsel now seeks to withdraw as counsel for Defendant Eny Enterprise, Inc., a corporation, because since a corporation is not a natural person, it cannot appear in an action in propria persona. Thus, a corporation can only appear through counsel. (Merco Const. Engineers, Inc. v. Mun.Ct. (Sully–Miller Contracting Co.) (1978) 21 Cal.3d 724, 731.) The forms do not indicate whether or not Defendant Eny Enterprises, Inc. has acquired new counsel since it cannot be represented in pro per by Defendant Kim. It is not clear to the Court whether Defendant Eny Enterprises, Inc. will need additional time to acquire new counsel.

The final status conference in this matter is set for October 30, 2014, and the trial is set for November 10, 2014 – both of which are less than one month from the date of this hearing. Due to the proximity to the trial date, the Court is concerned that this would delay the trail. Further, Plaintiff will likely suffer prejudice if the motion were to be granted as the trial would likely need to be continued to permit Defendant to acquire new counsel and allow new counsel time to become acquainted with the matter. (The Court does note, however, that plaintiff has not opposed this motion to be relieved.)

The Court has already continued the trial once (from August 11, 2014 to November 10, 2014) and is not inclined to continue the trial again. If granting this motion would require a trial continuance, the court is inclined to deny the motion to be relieved.

The Court invites plaintiff, defendant and counsel to address these issues during argument on this motion.

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