Navarro v. Costco Wholesale Corporation

• Court: District Court, S.D. California
• Decided: February 6, 2023
• Docket: 3:22-cv-01105
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ARTURO NAVARRO, Case No.: 22cv1105-LL-AGS

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. WITHDRAW AS ATTORNEY OF RECORD 14 COSTCO WHOLESALE

CORPORATION, et al., 15 [ECF No. 13] Defendants. 16 17 18 This matter is before the Court on the Motion to Withdraw as Attorney of Record 19 filed by Lawyers for Employee & Consumer Rights and attorney Elan Osterman, a.k.a. 20 Lonny Osterman, counsel of record for Plaintiff Arturo Navarro (collectively, “Counsel”). 21 ECF No. 13. Counsel requests leave to withdraw because Plaintiff’s “repeated and ongoing 22 failure to communicate with counsel,” which has “rendered it unreasonably difficult for 23 counsel to carry out his representation effectively.” ECF No. 13-1 at 2. The Motion was 24 filed on December 2, 2022 [ECF No. 13], and no opposition has been filed. The Court finds 25 this matter suitable for determination on the papers and without oral argument pursuant to 26 Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. For the reasons 27 explained below, the Court GRANTS the Motion to Withdraw as Attorney of Record for 28 Plaintiff Arturo Navarro. 1 I. LEGAL STANDARD 2 An attorney may not withdraw as counsel except by leave of Court. United States v. 3 Carter, 560 F.3d 1107, 1113 (9th Cir. 2009); see also Cal. R. Prof. Conduct 1.16(c). 4 Withdrawals are governed by the California Rules of Professional Conduct. See Nehad v. 5 Mukasey, 535 F.3d 962, 970 (9th Cir. 2008). More specifically, Rule 1.16 pertains to 6 declining or terminating representation of a client. Withdrawals covered by subsection (a) 7 of Rule 1.16 are mandatory. Cal. R. Prof. Conduct 1.16(a) (“Except as stated in paragraph 8 (c), a lawyer shall not represent a client or, . . . shall withdraw”). Withdrawals covered by 9 subsection (b) are permissive. Id. at 1.16(b) (“Except as stated in paragraph (c), a lawyer 10 may withdraw from representing a client. . .”). 11 Before withdrawal is permitted, an attorney must take “reasonable steps to avoid 12 reasonably foreseeable prejudice to the rights of the client, such as giving the client 13 sufficient notice to permit the client to retain other counsel[.]” Cal. R. Prof. Conduct 14 1.16(d).1 Furthermore, the Local Civil Rules of this district require that “(a) A motion to 15 withdraw as attorney of record must be served on the adverse party and on the moving 16 attorney’s client” and that “(b) A declaration pertaining to such service must be filed. 17 Failure to make [sic] serve as required by this section or to file the required declaration of 18 service will result in a denial of the motion.” S.D. Cal. CivLR 83.3(f)(3). 19 II. DISCUSSION 20 Counsel seeks withdrawal under Rule 3-700(1)(d), which was superseded by Rule 21 1.16(b)(4) on November 1, 2018. See Cross-Reference Chart,2 Cal. R. Prof. Conduct. That 22 rule states that a lawyer may withdraw from representing a client if “the client by other 23 24 25 1 “Reasonable” or “reasonably” when used in relation to conduct by a lawyer means the 26 conduct of a reasonably prudent and competent lawyer. Cal. R. Prof. Code. 1.0.1(h). 27 2 https://www.calbar.ca.gov/Portals/0/documents/rules/Cross-Reference-Chart-Rules-of- 28 1 conduct renders it unreasonably difficult for the lawyer to carry out the representation 2 effectively[.]” Cal. R. Prof. Conduct 1.16(b)(4). 3 Counsel submits that Plaintiff has “decreasingly communicated with counsel” since 4 mid-October 2022 by “failing to respond to multiple emails, phone calls, and voicemails 5 from attorneys representing him.” ECF No. 13-1 at 3. Plaintiff has ceased responding to 6 counsel, after ignoring numerous requests that he contact Counsel “for purposes of 7 responding to the pleadings, participating in the case and making important decisions, and 8 to discuss litigation strategy and potential settlement.” Id. Counsel submits that it is unable 9 to represent Plaintiff effectively, and that Plaintiff’s failure to respond to counsel have 10 rendered it unreasonably difficult to carry out their representation effectively. Id. Counsel 11 notified Plaintiff of their intent to withdraw as counsel on November 18, 2022 prior to 12 filing the instant noticed Motion, and attorney Lonny Osterman provided a signed 13 declaration stating that he would serve copies of the Motion on the Defendant and on 14 Plaintiff. ECF No. 13-2 at 3. 15 Counsel has made numerous attempts to communicate with Plaintiff by telephone 16 calls, text messages, emails, and letters, including three letters that informed Plaintiff that 17 Counsel would initiate withdrawal proceedings. ECF No. 13-2. Counsel also represents 18 that it would be willing to accept service of papers for forwarding purposes for a reasonable 19 period of time while Plaintiff engages substitute counsel. Id. at 3. The Court finds that 20 Counsel took reasonable steps to avoid reasonably foreseeable prejudice to Plaintiff’s 21 rights as a client. Counsel’s Motion and Declaration comply with the requirements set out 22 by Local Rule 83.3(f)(3). Although granting Counsel’s motion would leave Plaintiff 23 unrepresented, there is no requirement that a Court wait for substitute counsel to be retained 24 before granting a motion for attorney withdrawal. Arco Env’t Remediation, L.L.C. v. RDM 25 Multi-Enterprises, 166 F. App’x 929, 930 (9th Cir. 2006) (holding that there was no abuse 26 of discretion where the district court granted a motion to withdraw leaving a litigant 27 unrepresented). Moreover, there is no right to counsel in a civil case. Palmer v. Valdez, 560 28 1 || F.3d 965, 970 (9th Cir. 2009) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 2 || 1981)). 3 Ht. CONCLUSION 4 In accordance with the above, the Court hereby: 5 1. GRANTS the Motion to Withdraw as Attorney of Record for Plaintiff. ECF 6 ||No. 13. The law firm Lawyers for Employee & Consumer Rights and attorney Lonny 7 ||Osterman are withdrawn as counsel for Plaintiff. 8 2. The Clerk of Court is directed to remove the names of Daniel Sorenson and 9 Newman Osterman from the electronic notification system either: (1) 30 days after 10 date of this Order; or (2) when new counsel for Plaintiff files a notice of appearance, 11 || whichever occurs sooner. Counsel Osterman is directed to accept service of papers and 12 || forward them to Plaintiff until he is removed from the electronic notification system. 13 3. Within ten (10) days of the date of this Order, February 16, 2023, attorney 14 ||Lonny Osterman SHALL SERVE a copy of this Order on Plaintiff Arturo Navarro and 15 || file a certificate of service with the Court. See Fed. R. Civ. P. 5. 16 4. Within thirty (30) days of the date of this Order, March 8, 2023, Plaintiff 17 || Arturo Navarro may obtain new counsel and have counsel file a notice of appearance. If 18 notice of appearance is filed by that date, the Court will deem Plaintiff as 19 || proceeding pro se. “A party proceeding pro se must keep the Court and opposing parties 20 || advised as to [their] current address.” S.D. Cal. CivLR 83.11(b). “Failure to comply . . . 21 be ground for dismissal or judgment by default.” /d. at 83.11(a). 22 IT IS SO ORDERED. 23 ||Dated: February 6, 2023 NO 24 DE | 25 Honorable Linda Lopez United States District Judge 27 28