Curtis Johnson v. Serenity Transportation, Inc. et al

Filing 315

ORDER by Magistrate Judge Jacqueline Scott Corley granting 313 Motion to Withdraw as Attorney. (ahm, COURT STAFF) (Filed on 9/11/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CURTIS JOHNSON, et al.,

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Plaintiffs,

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v.

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SERENITY TRANSPORTATION, INC., et
al.,

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United States District Court
Northern District of California

Case No. 15-cv-02004-JSC
ORDER RE: MOTION FOR LEAVE TO
WITHDRAW AS COUNSEL FOR
DEFENDANTS
Re: Dkt. No. 313

Defendants.

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Before the Court is an unopposed motion for leave to withdraw as counsel. (Dkt. No.

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313.) Schauman & Hubins, P.C., Defendants’ counsel of record, contends withdrawal is

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appropriate because Defendants have not paid Schauman & Hubins for its past legal services in

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connection with this case, and are therefore in breach of the parties’ contract regarding payment of

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attorneys’ fees. Schauman & Hubins has given notice to Defendants and all other parties

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appearing in this action regarding this motion as required by Civil Local Rule 11-5(a). (Dkt. No.

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313-1 ¶¶ 9, 12-13.) After careful consideration, the Court concludes that oral argument is not

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necessary, see N.D. Cal. Civ. L.R. 7-1(b), and VACATES the September 24, 2020 hearing.

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I.

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Legal Standard
The standards of professional conduct required of members of the State Bar of California

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govern the withdrawal of counsel. N.D. Cal. Civ. L.R. 11-4(a)(1). California Rule of Professional

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Conduct 1.16(b)(5) permits counsel to withdraw from representing a client when the client

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breaches a material term of an agreement relating to the representation “and the lawyer has given

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the client a reasonable warning after the breach that the lawyer will withdraw unless the client

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fulfills the agreement[.]” Before withdrawal is permissible, counsel must comply with California

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Rule of Professional Conduct 1.16(d), providing that counsel shall not withdraw “until the lawyer

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

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such as giving the client sufficient notice to permit the client to retain other counsel[.]” Counsel

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must also comply with Rule 1.16(e), further requiring that upon termination counsel “shall release

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to the client, at the request of the client, all client materials and property.” “Courts consider

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several factors when considering a motion for withdrawal, including: (1) the reasons counsel seeks

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to withdraw; (2) the possible prejudice that withdrawal may cause to other litigants; (3) the harm

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that withdrawal might cause to the administration of justice; and (4) the extent to which

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withdrawal will delay resolution of the case.” Heifetz v. Nilkanth, No. 18-CV-04623-TSH, 2019

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WL 3457793, at *1 (N.D. Cal. July 31, 2019) (internal quotations and citation omitted).

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II.

Discussion

United States District Court
Northern District of California

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The Court finds good cause exists for counsel’s withdrawal. Defendants have had over

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one year to cure their breach and pay counsel’s outstanding legal fees but have not. “Failure to

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pay attorney's fees provides a sufficient basis on which to grant a request to withdraw.” Heifetz,

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2019 WL 3457793, at *2 (citation omitted). As for potential prejudice to other litigants,

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Schauman & Hubins provided notice to all parties appearing and Defendants of the intention to

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file this motion—in fact, Defendants have been notified several times since June 2019 that counsel

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would file a motion to withdraw unless the outstanding fees were paid. (Dkt. No. 313-1 ¶ 3.)

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There are no upcoming deadlines in this action other than a case management hearing. Counsel

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has made Defendants’ file available for pick-up, and even scheduled a time for Defendant David

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Friedel to collect it. (Dkt. No. 313-1 ¶ 6.) Therefore, the Court finds that withdrawal will neither

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impede the administration of justice nor delay resolution of this case, and that counsel has

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complied with all relevant California Rules of Professional Conduct.

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Civil Local Rule 11-5(b) states that when withdrawal by an attorney from an action is “not

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accompanied by simultaneous appearance of substitute counsel or agreement of the party to appear

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pro se, leave to withdraw may be subject to the condition that papers may continue to be served on

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counsel for forwarding purposes, unless and until the client appears by other counsel or pro se.”

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Further, it “is a longstanding rule that [c]orporations and other unincorporated associations must

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appear in court through an attorney.” D-Beam Ltd. P'ship v. Roller Derby Skates, Inc., 366 F.3d
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972, 973–74 (9th Cir. 2004) (citations omitted). Because the motion was not accompanied by the

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simultaneous appearance of substitute counsel for either defendant or Defendant Friedel’s

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agreement to appear pro se, Schauman & Hubins shall continue to be served for forwarding

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purposes unless and until Defendant Serenity appears by other counsel and Defendant Friedel

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appears by other counsel or pro se. When Civil Local Rule 11-5(b)’s “condition is imposed,

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counsel must notify the party of this condition.” N.D. Cal. Civ. L.R. 11-5(b). Therefore, counsel

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must additionally notify Defendants that papers will continue to be served on counsel for

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forwarding purposes. “Any filed consent by the party to counsel’s withdrawal under these

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circumstances must include acknowledgment of this condition.” Id.

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Accordingly, the motion to withdraw as counsel is GRANTED subject to the conditions

United States District Court
Northern District of California

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imposed by Civil Local Rule 11-5(b).

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IT IS SO ORDERED.

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Dated: September 11, 2020

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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