Kyle Zoellner v. Eric Losey

• Court: District Court, N.D. California
• Decided: August 16, 2024
• Docket: 3:18-cv-04471
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KYLE CHRISTOPHER ZOELLNER, Case No. 18-cv-04471-JSC

8 Plaintiff, ORDER RE: MOTION TO 9 v. WITHDRAW

10 CITY OF ARCATA, et al., Re: Dkt. No. 439 Defendants. 11

12 13 Before the Court is Attorney Elizabeth Zareh’s motion to withdraw as Plaintiff’s counsel. 14 (Dkt. No. 439.)1 Having carefully considered the briefing, the Court concludes oral argument is 15 unnecessary, see Civ. L.R. 7-1(b), VACATES the August 29, 2024 hearing, and GRANTS Ms. 16 Zareh’s motion because her health condition necessitates withdrawal. 17 BACKGROUND 18 On June 25, 2024, the Ninth Circuit affirmed the Court’s judgment in favor of Defendants. 19 (Dkt. No. 434.) On July 15, 2024, Defendants filed the currently pending motion to enforce 20 execution of bill of costs. (Dkt. No. 435.) The next day, Attorney Elizabeth Zareh, counsel for 21 Plaintiff, filed a “Notice of Substitution of Attorney” in which she purported to substitute Plaintiff, 22 Kyle Zoellner, for herself. (Dkt. No. 436.) Because counsel may not withdraw until relieved by 23 order of the Court, Ms. Zareh’s purported notice of withdrawal was void. (Dkt. No. 438.) Ms. 24 Zareh then filed the instant motion to withdraw on the grounds her “health condition renders it 25 unreasonably difficult to carry out her representation effectively.” (Dkt. No. 439 at 2-3.) Plaintiff 26 did not file an opposition to Ms. Zareh’s motion to withdraw. 27 1 DISCUSSION 2 “Counsel may not withdraw from an action until relieved by order of the Court after 3 written notice has been provided, reasonably in advance, to the client and to all other parties who 4 have appeared in the case.” N.D. Cal. Civ. L.R. 11-5(a). “The decision to permit counsel to 5 withdraw is within the sound discretion of the trial court.” Henneberry v. City of Newark, No. 13- 6 CV-05238-TSH, 2024 WL 2125599, at *1 (N.D. Cal. May 10, 2024) (citing United States v. 7 Carter, 560 F.3d 1107, 1113 (9th Cir. 2009)). “When addressing a motion to withdraw, the 8 consent of the client is not dispositive. Rather, the court must consider factors such as the reason 9 counsel seeks to withdraw, the possible prejudice caused to the litigants, and the extent to which 10 withdrawal may delay resolution of the case.” Id. (cleaned up). 11 Civil Local Rule 11-4(a)(1) requires compliance with the State Bar of California’s Rules of 12 Professional Conduct. The California rule on withdrawal requires a lawyer take reasonable steps 13 to avoid prejudice against her client, “such as giving the client sufficient notice to permit the client 14 to retain other counsel.” Cal. Rules of Prof’l Conduct R. 1.16(d); see Nehad v. Mukasey, 535 F.3d 15 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to attorney 16 withdrawal). “In addition, the rule provides that a lawyer must withdraw if the lawyer’s mental or 17 physical condition renders it unreasonably difficult to carry out the employment effectively.” 18 Nehad, 535 F.3d at 970 (cleaned up); see Cal. Rules of Prof’l Conduct R. 1.16(a)(3). 19 Ms. Zareh seeks to withdraw as Plaintiff’s counsel under California Rule of Professional 20 Conduct 1.16(a)(3) because she “is suffering from challenging health conditions that require[] 21 significant care” and “render[] it unreasonably difficult to carry out her representation effectively.” 22 (Dkt. No. 439 at 2-3.) She notified Plaintiff of her intention to withdraw on July 29, 2024—more 23 than two weeks after she filed her improper notice of withdrawal, the same day she filed her 24 motion to withdraw, and the same day Plaintiff’s response to Defendants’ motion to enforce 25 execution of bill of costs was due. (Dkt. No. 442 at 2, 4.) Ms. Zareh could have notified Plaintiff 26 of her intention to withdraw on July 16, 2024, the day she filed her improper notice of withdrawal. 27 (Dkt. No. 436.) Ms. Zareh thus failed to take reasonable steps to avoid prejudicing Plaintiff by 1 motion. Cal. Rules of Prof’l Conduct R. 1.16(d). 2 Allowing Ms. Zareh to withdraw at this late stage, when only the issue of Defendants’ bill 3 of costs remains, could potentially prejudice Plaintiff, who has not retained new counsel. The 4 Court also notes that when Ms. Zareh belatedly moved to withdraw, she improperly noticed the 5 motion for August 26, 2024; the Court therefore moved the motion to the August 29, 2024 law- 6 and-motion date. Even that date was earlier than the Local Rules require. See N.D. Cal. 7-2(a) 7 (“[A]ll motions must be filed, served and noticed in writing on the motion calendar of the assigned 8 Judge for hearing not less than 35 days after filing of the motion.”). 9 Ms. Zareh insists Plaintiff can adequately represent himself because he filed and litigated 10 this case without representation until January 2020. (Dkt. Nos. 53, 439 at 2, 442 at 2.) Given 11 Plaintiff’s experience representing himself in this case, and given all that remains is the motion to 12 enforce the bill of costs, Plaintiff will not be unduly prejudiced if he must proceed without 13 attorney representation. See, e.g., Hunter v. Sokoloff, No. 14-CV-05031-JST (LB), 2019 WL 14 5655013, at *3 (N.D. Cal. Oct. 31, 2019) (finding the potential an attorney’s withdrawal will leave 15 a client without representation an insufficient basis to deny a motion to withdraw). And though 16 Ms. Zareh’s withdrawal has already delayed adjudication of Defendants’ costs motion, it is 17 unlikely her absence will unreasonably delay resolution of this action. 18 So, even though Ms. Zareh failed to give Plaintiff sufficient notice of her withdrawal, 19 which may prejudice Plaintiff and has already delayed resolution of this action, her health 20 condition mandates her withdrawal. Cal. Rules of Prof’l Conduct R. 1.16(a)(3). Accordingly, the 21 Court GRANTS Ms. Zareh’s motion to withdraw as Plaintiff’s counsel. 22 // 23 // 24 // 25 // 26 // 27 // 1 CONCLUSION 2 Ms. Zareh’s motion to withdraw is GRANTED. On or before August 20, 2024, Ms. Zareh 3 must file proof of service of this Order on her client, as well as information regarding how 4 || Plaintiff should be served in this action. Plaintiff’s deadline to oppose Defendants’ motion to 5 || enforce execution of bill of costs is continued to September 5, 2024. Defendants’ reply remains 6 due September 12, 2024. The Court will take the matter under submission at that time. 7 This Order disposes of Docket No. 439. 8 IT IS SO ORDERED. 9 Dated: August 16, 2024 10

JAQQUELINE SCOTT CORL 12 United States District Judge

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