Filed 4/15/14 Gutierrez v. Superior Court CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


SERGIO GUTIERREZ,                                                    No. B253276

         Petitioner,                                                 (Super. Ct. No. BC360704)

         v.
                                                                     OPINION AND ORDER
THE SUPERIOR COURT OF LOS                                            GRANTING PEREMPTORY
ANGELES COUNTY,                                                      WRIT OF MANDATE

         Respondent;

CALIFORNIA COMMERCE CLUB,
INC.,

         Real Parties in Interest.



         ORIGINAL PROCEEDING; petition for writ of mandate. Debre Katz Weintraub,
Judge. Petition granted.
         Arias Ozzello & Gignac, Mike Arias, Mikael H. Stahle, Alfredo Torrijos; Rastegar
& Matern, Farzad Rastegar and Thomas S. Campbell for Petitioner.
         No appearance for Respondent.
         Winston & Strawn, Anna Segobia Masters and Danielle R. Gerson for Real Party
in Interest.


                                             ____________________
       The trial court abused its discretion in refusing Mike Arias, Mikael Stahle and
AlfredoTorrijos of Arias Ozzello & Gignac (AOG) to associate as cocounsel to represent
the class at trial.1 Accordingly, the petition is granted.
                   FACTUAL AND PROCEDURAL BACKGROUND
       This hour and wage case was originally filed on October 20, 2006.
       On April 21, 2008, Sergio Gutierrez and Hector Salazar (who is no longer a
plaintiffs’ representative) filed the operative third amended class action complaint against
California Commerce Club, Inc. alleging, inter alia, that they and other similarly situated
members of the putative class were injured by the club’s unlawful policy and practice of
denying meal and rest breaks to certain hourly, non-union employees.
       On October 24, 2013, the trial court certified the class and found that attorneys
Farzad Rastegar and Thomas S. Campbell of the law firm Rastegar & Matern, qualified
to represent the interests of the class.
       On December 2, 2013, class counsel filed a Notice of Appearance and Association
advising the trial court that attorneys Mike Arias, Mikael Stahle and Alfredo Torrijos of
AOG had associated as cocounsel and were “appear[ing] as additional attorneys of
record, together with other attorneys of record, on behalf of Plaintiffs in the above-
captioned case.”
       At a hearing on December 13, 2013, the trial court ruled that AOG could give
class counsel advice and be behind the scenes, but they could not argue the case, argue
motions, or appear before the jury.
       On December 16, 2013, the trial court issued the following minute order, nunc pro
tunc to December 13, 2013: “‘On October 24, 2013, this Court granted Plaintiff Sergio


1       As no plain, speedy and adequate remedy at law exists, and in view of the fact that
the issuance of an alternative writ would add nothing to the presentation already made,
we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the
first instance.” (Code Civ. Proc., § 1088; Brown, Winfield & Canzoneri, Inc. v. Superior
Court (2010) 47 Cal.4th 1233, 1237-1238; Lewis v. Superior Court (1999) 19 Cal.4th
1232, 1240-1241; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) We requested
opposition and notified the parties of the court’s intention to issue a peremptory writ.
(Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
                                              2
Gutierrez’s motion for class certification. Based on the evidence presented to the Court
for its consideration in finding that class counsel was qualified to represent the class, the
Court approved attorney[]s Thomas S. Campbell and Farzad Rastegar of Rastegar &
Matern, Attorneys at Law, A.P.C., to serve as class counsel. [¶] On November 19, 2013,
the Court approved that revised form of joint notice to the class filed on November 15,
2013 which identified Thomas S. Campbell and Farzad Rastegar of Rastegar & Matern,
Attorneys at Law, A.P.C., as class counsel. This opt-out notice, which was sent to the
class, also informed the class that they had the right to hire their own counsel to appear
on their behalf if they desired to do so. [¶] Thereafter, on December 2, 2013, class
counsel filed a Notice of Appearance and Association giving notice to the Court for the
first time that Mike Arias, Mikael Stahle and Alfredo Torrijos of [AOG], Attorneys &
Counselors at Law were appearing as additional attorneys of record on behalf of
Plaintiffs, and requesting that they also be served with all papers in this action. [¶] On
December 13, 2013, the Court noted that attorneys Mike Arias, Mikael Stahle and
Alfredo Torrijos of the Law Firm of [AOG] had neither been considered nor approved as
class counsel by this Court in ruling upon the class certification motion and in approving
the opt-out notice which was sent to the class. As such, the Court ruled that attorneys
Mike Arias, Mikael Stahle and Alfredo Torrijos of the Law Firm of [AOG] would not be
permitted to argue matters nor appear before the jury on behalf of the certified class.’”
       On December 17, 2013, class counsel filed an ex parte application of plaintiff
Sergio Gutierrez to appoint additional class counsel.
       On December 17, 2013, the trial court stated, in relevant part: “On December 17,
2013, class counsel filed an ex parte application to approve [AOG] and attorneys Arias,
Stahle and Torrijos as additional class counsel. However, no justification was given for
delaying until 13 court days prior to the start of trial on January 7, 2014 this request to
serve as class counsel. This left insufficient time to provide notice to the class members
that [AOG] and attorneys Arias, Stahle and Torrijo sought to be approved as additional
class counsel. [¶] The ex parte application for an order to appoint additional class counsel
is DENIED.”

                                              3
                                       DISCUSSION
       The sole issue before us is whether the trial court abused its discretion in refusing
to allow class counsel to associate AOG. We conclude that it did.
       The only reasons for denial appear to be that AOG had not been approved as class
counsel by the trial court and included in the notice sent to the class. Although these
failures merit some consideration, they are outweighed by the policy of allowing
approved class counsel to determine how best to proceed with their case. Class counsel
will continue to be responsible for the conduct of the case. They should be allowed to
obtain the assistance that they consider helpful so long as it is not detrimental to the class
nor interferes with the trial. Here neither detriment nor interference has been shown.
Further, opposing counsel’s expectation that only approved class counsel would try the
case, it is not a reason to deny the association. Opposing counsel is expected to be ready
for trial regardless of who tries the case for plaintiffs. We note that it is not uncommon
for one counsel to be substituted out of a case and new counsel to be substituted into a
case at the last minute. Here, of course, original counsel will still remain on the case.
                                      DISPOSITION
       THEREFORE, let a peremptory writ issue, commanding respondent superior
court to vacate its orders of December 13, 2013 and December 17, 2013, denying
Gutierrez’s motion and ex parte application to associate AOG, and to issue new and
different orders granting the association, in Los Angeles Superior Court Case
No. BC360704, entitled Sergio Gutierrez v. California Commerce Club.
       The stay is vacated.
       Each party is to bear its own costs.
       NOT TO BE PUBLISHED


THE COURT:


________________________ _____________________ _____________________
 ROTHSCHILD, Acting P. J.     CHANEY, J.            JOHNSON, J.

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