Rutherford v. Vista Palm Plaza LLC

• Court: District Court, S.D. California
• Decided: July 28, 2020
• Docket: 3:20-cv-01010
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES RUTHERFORD, Case No. 20-cv-1010-MMA (AGS)

12 Plaintiff, ORDER GRANTING DEFENSE 13 v. COUNSEL’S MOTION TO WITHDRAW 14 VISTA PALM PLAZA LLC,

15 Defendant. [Doc. No. 9] 16 17 18 19 Counsel for Vista Palm Plaza LLC (“Defendant”), Aron D. Hier (“Hier”) and 20 Justin J. Kizy (“Kizy”) (collectively, “Counsel”), move to withdraw as counsel of record. 21 See Doc. No. 9. As set forth in their motion and declaration, Counsel note that Defendant 22 has failed to sign their non-contingency fee written retainer agreement or waiver. See 23 Doc. No. 9-1 at 4; Hier & Kizy Decl., Doc. No. 9-2 ¶ 5. Counsel argue that they, thus, 24 “cannot continue to represent [Defendant] while complying with California Rules of 25 Professional Responsibility and therefore further representation is impermissible under 26 the California Rules of Conduct.” Hier & Kizy Decl., Doc. No. 9-2 ¶ 6. Counsel declare 27 that they served their motion on Defendant and opposing counsel. Id. ¶ 7; see also Doc. 28 1 No. 9-3; CivLR 83.3.f.3. Given that no opposition brief was filed, see CivLR 7.1.e.2; see 2 also CivLR 7.1.e.7, the Court finds that the motion is unopposed. 3 “An attorney may not withdraw as counsel except by leave of court,” Darby v. City 4 of Torrance, 810 F. Supp. 275, 276 (C.D. Cal. 1992), and “[t]he decision to grant or deny 5 counsel's motion to withdraw is committed to the discretion of the trial court.” Beard v. 6 Shuttermart of Cal., Inc., No. 07-cv-594-WQH (NLS), 2008 WL 410694, at *2 (S.D. Cal. 7 Feb. 13, 2008) (quoting Irwin v. Mascott, No. C 97-4737 JL, 2004 U.S. Dist. LEXIS 8 28264, at *3 (N.D. Cal. Dec. 1, 2004)); see also Cal. R. Prof. Conduct Rule 1.16(c); 9 CivLR 83.3.f.3. Courts consider the following when ruling on a motion to withdraw as 10 counsel: “(1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may 11 cause to other litigants; (3) the harm withdrawal might cause to the administration of 12 justice; and (4) the degree to which withdrawal will delay the resolution of the case.” Id. 13 (quoting Irwin, 2004 U.S. Dist. LEXIS 28264, at *4); see also Murphy v. Teamsters 14 Union Local 542, No. 12-cv-340-MMA (BGS), 2013 WL 12121235, at *1 (S.D. Cal. Jan. 15 4, 2013). 16 As to the first factor, Counsel argue that “[Defendant’s] refusal to respond to 17 [Counsel’s] requests to cooperate in something as fundamental as signing or waiving a 18 written fee agreement represents a stumbling block that makes it unreasonably difficult 19 for [Counsel] to effectively represent [Defendant] before this Court.” Doc. No. 9-1 at 4. 20 Under the California Rules of Professional Conduct, a lawyer must withdraw if she or he 21 knows “the representation will result in violation of these rules or of the State Bar Act.” 22 Cal. R. Prof. Conduct 1.16(a)(2). Under the California Business and Professions Code, 23 attorney expenses that will foreseeably exceed $1,000 generally require a written fee 24 agreement. See Cal. Bus. & Prof. Code § 6148(a). But see id. § 6148(d) (listing 25 exceptions). Moreover, a lawyer may withdraw as counsel if “the client by other conduct 26 renders it unreasonably difficult for the lawyer to carry out the representation 27 effectively.” Cal. R. Prof. Conduct 1.16(b)(4). The Court finds that Counsel have good 28 reason to seek withdrawal because of Defendant’s refusal to come to a consensus with 1 ||Counsel over the fee agreement or waiver, and Defendant indicated that it does not intend 2 ||to have Counsel represent it in this action. See Doc. No. 9-2 at 3; Hier & Kizy Decl., 3 ||Doc. No. 9-2 ¥ 5. 4 As to the second factor, Counsel argue that there will be no prejudice to the parties 5 ||because “[t]he Early Neutral Evaluation and Case Management Conference are set for 6 ||over two months from today.” Doc. No. 9-1 at 5. Given that this action is in its early 7 ||stages and the Magistrate Judge recently granted a joint motion to continue dates, see 8 ||Doc. No. 13, the Court agrees and finds that prejudice is minimal. 9 As to the third and fourth factors, Counsel argue that “withdrawal would cause no 10 |/harm to the administration of justice and cause no delay in this case.” Jd. The Court 11 ||finds the third and fourth factors weigh in favor of Counsel’s motion. 12 After reviewing the record of this case and the reasons for withdrawal noted by 13 |/Counsel, and good cause appearing, the Court GRANTS Counsel’s motion to withdraw.! 14 ||The Court ORDERS Counsel to provide a copy of this Order to Defendant. The Court 15 || VACATES the August 10, 2020 hearing date. Given that Defendant is a limited liability 16 ||company, the Court INSTRUCTS Defendant that it “may appear in court only through 17 attorney permitted to practice pursuant to Civil Local Rule 83.3.” CivLR 83.3,). 18 Therefore, the Court ORDERS Defendant to retain new counsel, and the new counsel 19 ||must file a Notice of Appearance on or before August 7, 2020. 20 IT IS SO ORDERED. 21 ||Dated: July 28, 2020 Vath LTu- hpler HON. MICHAEL M. ANELLO United States District Judge 23 'Tn filing its motion with this Court and its joint motion to extend deadlines with the Magistrate Judge, Counsel appears to have made duplicative filings. See Doc. Nos. 8 (containing the notice of motion and 25 ||motion to withdraw), 9 (containing the notice of motion, motion to withdraw, and supporting memorandum of points and authorities), 10 (containing the same content but with a different docket 26 ||description), 11 (containing the joint motion to continue Early Neutral Evaluation deadlines), 12 (containing the same joint motion). The Clerk of Court sent Counsel a QC mailer indicating the 27 discrepancies. However, Counsel has not taken corrective action; the duplicative entries have remained ag the docket. Therefore, because the documents are duplicative, the Court STRIKES Doc. Nos. 8, 10, 11. sy