Berrera v. Sivyer et al

Filing 65

ORDER AFTER HEARING signed by Magistrate Judge Edmund F. Brennan on 6/15/2018 ORDERING plaintiff's counsels' 55 motion to withdraw is GRANTED; the Clerk shall terminated Ashley R. Amerio as counsel of record for plaintiff Ernesto Berrera; and defendants' 60 motion for an order to show cause why a contempt citation should not issue to Rodrigo Sandoval is DENIED without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERNESTO BERRERA,

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No. 2:15-cv-0610-KJM-EFB P

Plaintiff,

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v.

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J. SIVYER, et al.,

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ORDER AFTER HEARING

Defendants.

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This is a section 1983 action brought by a state prisoner. Two motions are pending and

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ready for disposition. The first, filed by plaintiff’s counsel, is a motion to withdraw. ECF No.

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57. The second, filed by defendants, seeks an order to show cause in re contempt as to non-party

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inmate Rodrigo Sandoval (“motion for show cause order”). ECF No. 60. The motions were

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heard on June 13, 2018. Attorney Stephen Davids appeared on behalf of plaintiff and attorney

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Arthur Mark, III appeared for defendants. For the reasons on the record and summarized as

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relevant below, the motion to withdraw is granted and the motion for an order show cause is

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denied without prejudice.

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I.

Motion to Withdraw

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Eastern District of California Local Rule 182(d) dictates that an attorney who has

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appeared on behalf of a client may not withdraw without leave of court. The rule also provides

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that “[w]ithdrawal of an attorney is governed by the Rules of Professional Conduct of the State
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Bar of California” (“California Rules of Professional Conduct”). The California Rules of

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Professional Conduct are interpreted according to California law. See Image Technical Servs.,

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Inc. v. Eastman Kodak Co., 820 F. Supp. 1212, 1215 (N.D. Cal. 1993). Whether to allow an

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attorney to withdraw is a decision committed to the trial court’s discretion. See LaGrand v.

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Stewart, 133 F.3d 1253, 1269 (9th Cir. 1998).

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Plaintiff’s counsel cites two California Rules of Professional Conduct - 3-700(C)(1)(a)

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and 3-700(C)(1)(d) - as justifications for their motion to withdraw. Rule 3-700(C)(1)(a) provides

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for an attorney’s withdrawal if a client “insists upon presenting a claim or defense that is not

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warranted under existing law and cannot be supported by good faith argument for an extension,

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modification, or reversal of existing law.”1 Rule 3-700(C)(1)(d) provides that an attorney may

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move to withdraw where a client’s “conduct renders it unreasonably difficult . . . to carry out the

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employment effectively.”

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The court has reviewed the arguments and exhibits provided by plaintiff’s counsel in

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support of their motion and finds that counsel has provided adequate justification for its position

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that it cannot continue to represent plaintiff in this matter.2 Thus, the motion to withdraw is

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granted.

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II.

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Motion for Show Cause Order
At the hearing, the court noted the legal sufficiency of defendants’ arguments, but

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expressed concern over the practical challenges of crafting an effective sanction for Mr.

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Sandoval. Sandoval has clearly refused compliance with the subpoena for his deposition.

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Under the Federal Rules of Civil Procedure, “presenting to the court a pleading, written
motion, or other paper --whether by signing, filing, submitting, or later advocating it -- an
attorney or unrepresented party certifies that to the best of the person’s knowledge, information,
and belief, formed after an inquiry reasonable under the circumstances . . . [that] the claims,
defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P.
11(b)(2).

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This finding should not be interpreted as an opinion on the ultimate validity of plaintiff’s

claims.
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However, under questioning from the court, defendants’ counsel acknowledged that Sandoval’s

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deposition may not be necessary to litigate a summary judgment motion which counsel plans to

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file. In light of that, counsel agreed that this motion would be best denied without prejudice,

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subject to renewal in the event that his forthcoming dispositive motion is unsuccessful.

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III.

Conclusion

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In light of the foregoing, it is ORDERED that:

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1. Plaintiff’s counsels’ motion to withdraw (ECF No. 55) is GRANTED;

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2. The Clerk of Court shall terminate Ashley R. Amerio as counsel of record for plaintiff

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Ernesto Berrera; and
3. Defendants’ motion for an order to show cause why a contempt citation should not
issue to Rodrigo Sandoval (ECF No. 60) is DENIED without prejudice.
Dated: June 15, 2018.

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