Johnson v. The Burke Company, LLC et al

Filing 47

ORDER signed by District Judge Kimberly J. Mueller on 9/25/17 ORDERING the court GRANTS the motion to withdraw. CSA is ORDERED to serve on Isabel U. Rodriguez and Moses Elimar Rodriguez a copy of this order and file proof of service within seven ( 7) days. Because CSA does not provide the fee agreement the Rodriguezes allegedly violated thereby forcing it to bring this motion, the court DENIES CSA's request for reasonable reimbursement; The court also DENIES CSA's request for sanct ions against plaintiff for incorrectly asserting CSA declined to participate in a recent joint statement. 37 The court has reviewed the parties' statements, 37 38 , detailing the overlapping communications between the parties in the day s leading up to their joint statement 36 . Based on this review, sanctions are not warranted against plaintiff, based on his representations tothe court. Nor are sanctions warranted against CSA, given its attempts to comply with the court's order requiring a joint statement.As a result of the court's order, Isabel U. Rodriguez and Moses Elimar Rodriguez are now proceeding pro se. The Clerk of the Court shall reflect as much on the court's docket. (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SCOTT JOHNSON,

12
13
14
15
16
17
18

No. 2:16-cv-02881-KJM-AC

Plaintiff,
v.

ORDER

THE BURKE COMPANY, LLC, a
California Limited Liability Company;
RODELYN GARGANTILLA RAFFS;
DEOK NAM KIM; JAE JUNG KIM;
ISABEL U. RODRIGUEZ; MOSES
ELIMAR RODRIGUEZ; and DOES 1-10,
Defendants.

19

Catherine M. Corfee and Corfee Stone & Associates (collectively, “CSA”) move

20

to withdraw as counsel for defendants Isabel U. Rodriguez and Moses Elimar Rodriguez. Mot.,

21

ECF No. 24. CSA explains the Rodriguezes have ordered CSA to stop work in this case, ceased

22

communicating with CSA, ignored CSA’s legal advice and failed to pay for legal services; they

23

also have declined to replenish a trust fund as per their fee agreement. Id. at 2–9; id. at 10–14

24

(Corfee Decl.). Because the Rodriguezes allegedly violated their fee agreement by not stipulating

25

to CSA’s withdrawal, CSA also requests reasonable reimbursement for its time preparing this

26

motion. Id. at 8. CSA separately requests sanctions be imposed against plaintiff for incorrectly

27

asserting CSA declined to participate in a recent joint statement. ECF No. 37.

28
1

1

Plaintiff Scott Johnson opposes the motion. Opp’n, ECF No. 34. He argues the

2

Rodriguezes already authorized CSA to enter a stipulation with all parties dismissing this case

3

with prejudice in light of a recent settlement. Id. (citing ECF No. 31 at 7–8; ECF No. 31-2 at 34).

4

Accordingly, his counsel suggests, CSA’s motion is unnecessary and is designed to delay

5

dismissal so as to extract further payment from defendants. Id.

6

Under Local Rule 182(d), “an attorney who has appeared may not withdraw

7

leaving the client in propria persona without leave of court upon noticed motion and notice to the

8

client and all other parties who have appeared.” Local Rule 182(d). The attorney must provide

9

an affidavit stating the current or last known address or addresses of the client and the efforts

10

made to notify the client of the motion to withdraw. Id. Leave to withdraw may be granted

11

“subject to such appropriate conditions as the Court deems fit.” Id. Withdrawal as an attorney is

12

governed by the Rules of Professional Conduct of the State Bar of California. Id. California Rule

13

of Professional Conduct 3-700(A)(2) requires an attorney take “reasonable steps to avoid

14

reasonably foreseeable prejudice to the rights of the client, including giving due notice to the

15

client, allowing time for employment of other counsel, complying with rule 3-700(D) [regarding

16

release of a client’s papers and property], and complying with applicable laws and rules.” The

17

Rules permit withdrawal if, as relevant here, (1) the client’s conduct “renders it unreasonably

18

difficult for the member to carry out the employment effectively,” id. 3-700(C)(1)(d); (2) the

19

client “breaches an agreement or obligation to the member as to expenses or fees,” id.

20

3-700(C)(1)(f); or (3) the client “knowingly and freely assents to termination of the employment,”

21

id. 3-700(C)(5).

22

The decision to grant or deny a motion to withdraw is within the court’s discretion.

23

McNally v. Eye Dog Found. for the Blind, Inc., No. 09-01184, 2011 WL 1087117, at *1 (E.D.

24

Cal. Mar. 24, 2011) (citation omitted). District courts in this circuit have considered several

25

factors when evaluating a motion to withdraw, including the reason for withdrawal, prejudice to

26

the client, prejudice to the other litigants, harm to the administration of justice, and possible

27

delay. See Deal v. Countrywide Home Loans, No. 09-01643, 2010 WL 3702459, at *2 (N.D. Cal.

28

Sept. 15, 2010); CE Res., Inc. v. Magellan Group, LLC, No. 08-02999, 2009 WL 3367489, at *2
2

1

(E.D. Cal. Oct. 14, 2009); Beard v. Shuttermart of Cal., Inc., No. 07-594, 2008 WL 410694, at *2

2

(S.D. Cal. Feb. 13, 2008).

3

Good cause exists to grant CSA’s motion because the Rodriguezes have not paid

4

counsel’s fees and have failed to respond to Ms. Corfee’s repeated communications. Corfee Decl.

5

¶¶ 3, 7–8. Defendants appear to communicate primarily through a friend, Calvino Avila, who has

6

communicated in a hostile manner with Ms. Corfee. Id. ¶¶ 14, 16, Exs. A, H, I. Ms. Corfee has

7

needed to move for withdrawal, because the Rodriguezes have instructed her to cease all legal

8

work but have also refused to stipulate to her withdrawal since April 2017. Id. ¶ 10. The

9

attorney-client relationship cannot be maintained where, as here, there is an irremediable

10

breakdown in communication between defendants and counsel such that counsel can no longer

11

effectively represent her clients. See United Fabrics Int’l, Inc. v. Life N Style Fashions Inc., No.

12

15-05733, 2016 WL 4208425, at *2 (C.D. Cal. Aug. 9, 2016) (attorney-client relationship

13

irreparably broken where client refuses to provide necessary information in course of

14

representation); McNally v. Eye Dog Found. for Blind, Inc., 1:09-CV-1184AWISKO, 2010 WL

15

1687657, at *1 (E.D. Cal. Apr. 26, 2010) (withdrawal by counsel allowed where irreconcilable

16

differences arose between counsel and client, and client had not paid attorney’s fees).

17

Defendants’ conduct here renders it unreasonably difficult for CSA to effectively represent them.

18

See California Envtl. Protec. Assn. v. Sonoma Soil Builders, LLC, 15-CV-04880-KAW, 2017 WL

19

1407900, at *3 (N.D. Cal. Apr. 20, 2017), as modified, 15-CV-04880-KAW, 2017 WL 1412014

20

(N.D. Cal. Apr. 20, 2017) (client’s failure to pay legal bills and communicate with attorney

21

prevented attorney from fulfilling legal obligations).

22

Withdrawal is proper only if the client’s interest will not be unduly prejudiced or

23

delayed. Ramirez v. Sturdevant, 21 Cal. App. 4th 904, 915 (1994) (an attorney may not withdraw

24

“at a critical point and thereby prejudic[e] the client’s case”); see also California Rule of

25

Professional Conduct 3–700(A) (“[A] member shall not withdraw from employment until the

26

member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the

27

client”). There is little risk of prejudice to the Rodriguezes here. Plaintiff has represented that the

28

case has settled and he has agreed to release all claims against defendants, although defendant
3

1

Burke Company, LLC, retains a right to seek indemnity and contribution from the remaining

2

defendants. ECF No. 36. Three defendants have accordingly been dismissed. ECF No. 44.

3

Although the Rodriguezes have not yet been dismissed, this case is likely near its end. CSA also

4

has given ample notice of its intent to withdraw, which was shared first formally with the

5

Rodriguezes in April 2017. In addition, although defendants have not stipulated to CSA’s

6

withdrawal, it appears that both CSA and defendants understand that the attorney-client

7

relationship has already been terminated, at least in effect. See Reply at 3 (“Defendants

8

Rodriguez fired CSA . . . . They have made it very clear they do not want CSA’s

9

representation.”); see also Moises Rodriguez Affidavit, ECF No. 40 (“I told [Ms. Corfee] that I

10

agreed [she was not my attorney] and that we didn’t want her to represent us in this matter. As

11

far as I knew, that was over.”). Finally, though plaintiff argues otherwise, the record does not

12

demonstrate that, before the attorney-client relationship deteriorated, the Rodriguezes ever

13

provided knowing and unqualified assent for CSA to stipulate to dismissal of this action. See

14

ECF No. 31 at 7–8 (Ms. Corfee’s declaration detailing her August 16, 2017 call with the

15

Rodriguezes, during which they explained they could not hear or understand her); ECF No. 31-2

16

at 34 (Mr. Rodriguez’s August 17, 2017 e-mail to Ms. Corfee listing instructions, conditions and

17

questions related to his authorization of any settlement); ECF No. 37 at 4 (Ms. Corfee’s

18

explanation that “[CSA] does not have confirmation that [the Rodriguezes] comprehend and

19

understand the settlement agreement, its ramifications, including the Dismissal.”).

20

Defendants will not be prejudiced by granting CSA’s motion. Neither will

21

plaintiff suffer prejudice by proceeding against the Rodriguezes, be it pro se or with new counsel.

22

Rather, the case now may proceed with a major impediment to resolution removed.

23

For these reasons, the court GRANTS the motion to withdraw. CSA is

24

ORDERED to serve on Isabel U. Rodriguez and Moses Elimar Rodriguez a copy of this order and

25

file proof of service with the court within seven (7) days. CSA must still comply with any

26

obligations under California Rule of Professional Conduct 3-700(D).

27
28
4

1

Because CSA does not provide the fee agreement the Rodriguezes allegedly

2

violated thereby forcing it to bring this motion, the court DENIES CSA’s request for reasonable

3

reimbursement.

4

The court also DENIES CSA’s request for sanctions against plaintiff for

5

incorrectly asserting CSA declined to participate in a recent joint statement. ECF No. 37. The

6

court has reviewed the parties’ statements, ECF Nos. 37–38, detailing the overlapping

7

communications between the parties in the days leading up to their joint statement, ECF No. 36.

8

Based on this review, sanctions are not warranted against plaintiff, based on his representations to

9

the court. Nor are sanctions warranted against CSA, given its attempts to comply with the court’s

10
11
12
13
14

order requiring a joint statement.
As a result of the court’s order, Isabel U. Rodriguez and Moses Elimar Rodriguez
are now proceeding pro se. The Clerk of the Court shall reflect as much on the court’s docket.
IT IS SO ORDERED.
DATED: September 25, 2017.

15
16

UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
5