Cisneros De Rios v. Commissioner of Social Security

Filing 17

ORDER GRANTING 15 Motion to Withdraw as Counsel signed by Magistrate Judge Gary S. Austin on 10/5/2017. (Sant Agata, S)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 OLIVIA REFUGIO CISNEROS DE RIOS, 16-cv-1775 GSA 8 Plaintiff, 9 10 11 12 13 ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, (Doc. 15) Defendant. 14 15 INTRODUCTION 16 On November 22, 2016, Plaintiff filed this action challenging the Commissioner of Social 17 Security’s (“Commissioner”) denial of her Social Security benefits. (Doc. 1). The Commissioner 18 lodged the administrative record on April 12, 2017. (Doc. 9). Plaintiff’s Opening Brief was 19 20 21 due on August 18, 2017. (Doc. 14). On August 18, 2017, Monica Perales, Plaintiff’s counsel, filed a Motion to Withdraw as Attorney advising the Court that she has been unable to reach 22 Plaintiff since May 15, 2017, despite several efforts to contact her via by phone and via mail. 23 (Doc. 15). On August 23, 2017, this Court advised Plaintiff that any opposition to the motion 24 shall be filed no later than September 22, 2017, and that a failure to respond would result in the 25 granting of the motion. (Doc. 16). Both the Motion to Withdraw as Counsel and this Court’s 26 Order was served on Plaintiff at her last known address. (Doc. 15, pgs. 5-6). To date, neither 27 28 Plaintiff, nor the Commissioner, has filed an Opposition to the motion. 1 1 2 3 4 DISCUSSION Local Rule 182(d) provides that an attorney who has appeared on behalf of a client may not withdraw, leaving the client in propria persona, without leave of court. The rule further states that “[w]ithdrawal of an attorney is governed by the Rules of Professional Conduct of the 5 6 State Bar of California” (“CRPC”). The California Rules of Professional Conduct are interpreted 7 according to California law. See Image Technical Services, Inc. v. Eastman Kodak Co., 820 8 F.Supp. 1212, 1215 (N.D. Cal. 1993). 9 10 11 Permissive withdrawal of an attorney, which is at issue here, is addressed by Rule 3700(C) of the California Rules of Professional Conduct. Rule 3-700(C) provides that an attorney may request permission to withdraw if the client “renders it unreasonably difficult for the 12 13 14 [attorney] to carry out the employment effectively.” CRPC, Rule 3-700(C)(1)(d). The decision to grant or deny a motion to withdraw as counsel is committed to the sound discretion of the trial 15 court. See United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009); Washington v. Sherwin 16 Real Estate, Inc., 694 F.2d 1081, 1087 (7th Cir. 1982); Rus, Millband & Smith v. Conkle & 17 Olesten, 113 Cal.App.4th 656, 673 (2003); Estate of Falco, 188 Cal.App.3d 1004, 1014 (1987) 18 19 ("To protect the best interests of the client, a trial court should have broad discretion in allowing attorneys to withdraw.”). However, withdrawal is only proper if the client's interest will not be 20 21 22 unduly prejudiced or delayed. Ramirez v. Sturdevant, 21 Cal.App.4th 904, 915 (1994) (an attorney may not withdraw “at a critical point and thereby prejudic[e] the client's case”); also see 23 Cal. R. Prof. Conduct 3–700(A) (“a member shall not withdraw from employment until the 24 member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the 25 client”). 26 27 28 Here, Plaintiff is no longer communicating with counsel, and Ms. Perales is no longer able to effectively represent Plaintiff’s interests. Therefore, Ms. Perales has demonstrated good cause 2 1 to withdraw as counsel. In order to avoid prejudice, counsel will be directed to forward the 2 administrative record and all of the pleadings to Plaintiff. The Court will also extend the deadline 3 for the filing of Plaintiff’s Opening Brief to allow Plaintiff additional time to prepare her case. 4 ORDER 5 6 The Motion to Withdraw as Counsel is GRANTED and Plaintiff is SUBSTITUTED in as 7 counsel in pro se. Ms. Perales SHALL to provide Plaintiff with the complete administrative 8 record and all pleadings on or before October 20, 2017. Plaintiff SHALL file her Opening Brief 9 no later than November 24, 2017. Plaintiff is cautioned that she no longer has the assistance of an 10 11 attorney. She may wish to seek further legal assistance. If Plaintiff does not retain another attorney to represent her, she is responsible for complying with all Court rules and applicable 12 13 14 15 laws, including filing her Opening Brief. Failure to do so, or failing to timely comply with any order of this Court (including this order) will result in dismissal of the action. As per Ms. Perales, Plaintiff’s last known address is 216 North East Fourth Street, 16 Visalia, California 93291. Plaintiff’s telephone number is (559) 723-6732. The Clerk of the 17 Court shall update Plaintiff’s address on the docket and serve a copy of this order on Plaintiff at 18 19 the above address. Plaintiff shall contact the Court immediately if the address listed above is not correct. 20 21 22 23 24 IT IS SO ORDERED. Dated: October 5, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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