Ponce v. CalEnergy Operating Corporation

• Court: District Court, S.D. California
• Decided: October 11, 2023
• Docket: 3:22-cv-01808
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ALBERTO PONCE, an individual Case No.: 3:22-CV-01808-W-LR

14 Plaintiff, ORDER DENYING ATTORNEY’S 15 v. MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFF 16 CALENERGY OPERATING [DOC. 30] CORPORATION, a corporation; and 17 DOES 1-25, inclusive, 18 Defendants. 19

20 Pending before the Court is Mills Sadat Dowlat LLP’s (“Attorney”) motion to 21 withdraw as attorney of record for Plaintiff Alberto Ponce (“Plaintiff”). The Court 22 decides the matter on the papers submitted and without oral argument. See Civ. L.R. 23 7.1(d)(1). For the reasons set forth below, the Court DENIES the motion [Doc. 30]. 24

25 I. FACTUAL BACKGROUND 26 On October 20, 2022, Attorney filed this lawsuit on behalf of Plaintiff. The 27 Complaint asserted eleven causes of action relating to Defendants’ alleged employment 28 1 law violations against Plaintiff—including wrongful termination, failure to provide 2 reasonable accommodations, discrimination, retaliation, and failure to provide accurate 3 wage statements. (Compl. [Doc. 1] ¶ 21–81.1) 4 On November 17, 2022, Defendants removed the case to this Court. (See Notice of 5 Removal.) However, Plaintiff’s eleventh cause of action, brought under California’s 6 Private Attorneys General Act, was not removed. (Id. at 10.) 7 On March 31, 2023, Plaintiff filed his First Amended Complaint (“FAC”), adding 8 additional causes of action relating to Defendants’ alleged California Labor Code 9 violations. (See FAC [Doc. 13].) 10 On October 3, 2023, Attorney filed the current motion to withdraw as counsel of 11 record for Plaintiff (the “Motion”) citing Plaintiff’s failure “to respond to any and all of 12 Counsel’s several communication attempts.” (Motion at 2:6-7.) The Motion does not 13 identify a hearing date as required by Civ. L.R. 7.1(f)(1). To date, there has been no 14 opposition filed. 15 16 II. DISCUSSION 17 An attorney may not withdraw as counsel except by leave of court. Darby v. City 18 of Torrance, 810 F. Supp. 275, 276 (C.D.Cal.1992); Civ. L.R. 83.3(f)(3). “The grant or 19 denial of an attorney’s motion to withdraw in a civil case is a matter addressed to the 20 discretion of the trial court . . . .” Washington v. Sherwin Real Estate, Inc., 694 F.2d 21 1081, 1087 (7th Cir. 1982). Factors considered in evaluating the Motion are “1) the 22 reasons why withdrawal is sought; 2) the prejudice withdrawal may cause to other 23 litigants; 3) the harm withdrawal might cause to the administration of justice; and 4) the 24 degree to which withdrawal will delay the resolution of the case.” CE Resource, Inc. v. 25 26 27 28 1 Magellan Group, LLC, 2009 WL 3367489, at *2 (E.D. Cal. 2009) (citing Canandaigua 2 Wine Co., Inc. v. Moldauer, 2009 WL 89141, at *1 (E.D. Cal. 2009)). 3 Withdrawal of counsel is governed by the standards of professional conduct 4 required of members of the State Bar of California. See Nehad v. Mukasey, 535 F.3d 5 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to attorney 6 withdrawal). Under Rule 1.16(d), an attorney “shall not terminate the representation until 7 the lawyer has taken reasonable* steps to avoid reasonably* foreseeable prejudice to the 8 rights of the client, such as giving the client sufficient notice to permit the client to retain 9 other counsel . . . .”2 10 Furthermore, Civ. L.R. 83.3(f)(3) states an attorney’s motion to withdraw “must be 11 served” “on the moving attorney’s client” and the motion must be accompanied by a 12 “declaration pertaining to such service.” Additionally, Civ. L.R. 7.1(f)(1) requires all 13 motions to “include within it a Memorandum of Points and Authorities in support of the 14 motion . . . .” 15 Here, Attorney’s Motion to withdraw as counsel and accompanying declaration of 16 Mr. Dowlatshahi in support thereof fail to meet the requirements necessary for the Court 17 to grant the Motion. 18 As a procedural matter, the Motion fails to comply with Civ. L.R. 7.1(f)(1) in that 19 the Motion does not contain a Memorandum of Points and Authorities explaining why 20 and on what grounds the Court should grant the motion. Similarly, the Motion fails to 21 comply with L.R. 83.3(f)(3) in that the proofs of service attached to the Motion and Mr. 22 Dowlatshahi’s declaration do not show that Attorney has served the Motion on Plaintiff. 23 Nor does the Motion identify a hearing date, as required by Civ. L.R. 7.1(d)(1). 24 Turning to the substance of Motion, Attorney fails to evaluate the four factors set 25 forth in Washington v. Sherwin Real Estate, Inc. nor show the “reasonable steps” 26

27 2 California Rule of Professional Conduct 1.01(h) defines “reasonable” and “reasonably” in this context 28 1 || Attorney has taken to “avoid reasonably foreseeable prejudice to the rights of the client, 2 ||such as giving the client sufficient notice to permit the client to retain other counsel.” 3 While Mr. Dowlatshahi’s declaration asserts that “Counsel has sent numerous 4 |{emails to [Plaintiff] at his last known email address” and that “[o]Jur firm has also made 5 ||numerous calls to Plaintiff via telephone,” the only evidence accompanying the 6 || declaration is Exhibit A—which shows nothing more than two emails Mr. Dowlatshahi 7 || sent Gust one day apart from each other) to an email address called 8 ‘““ponce_alberto@outlook.com” wherein Mr. Dowlatshahi asks Plaintiff to “please call 9 ||me back... .” These two emails from September 12 and 13, 2023 and Mr. 10 || Dowlatshahi’s assertion that his firm has “made numerous calls to Plaintiff via 11 telephone” are insufficient. The Court is especially concerned that it does not appear 12 || Attorney has even attempted to inform Plaintiff of its plan to withdraw and that a 13 || telephonic Discovery Conference is set for October 20, 2023—leaving Plaintiff with little 14 || time to find new counsel. 15 16 ||TII. CONCLUSION & ORDER 17 For all the reasons set forth above, the Court DENIES Attorney’s motion to 18 || withdraw as attorney of record for Plaintiff Alberto Ponce [Doc. 30] without prejudice. 19 IT IS SO ORDERED. 20 || Dated: October 11, 2023 \ 21 [pe Dor 22 Hn. 1 omas J. Whelan 3 United States District Judge 24 25 26 27 28