Perez v. TLC Residential Inc et al

Filing 250

ORDER DENYING 247 SECOND MOTION TO WITHDRAW AND REFERRAL TO STANDING COMMITTEE ON PROFESSIONAL CONDUCT by Judge William Alsup. (whalc2, COURT STAFF) (Filed on 3/14/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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R. ALEXANDER ACOSTA, Secretary of
Labor, United States Department of Labor,
Plaintiff,

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No. C 15-02776 WHA

ORDER DENYING SECOND
MOTION TO WITHDRAW
AND REFERRAL TO
STANDING COMMITTEE ON
PROFESSIONAL CONDUCT

v.
TLC RESIDENTIAL, INC., and
FRANCISCO MONTERO,
Defendants.
/

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Attorney Cynthia Browning first appeared in this action in November 2016 as a partner

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in Fog City Law Group on behalf of defendants TLC Residential, Inc., and Francisco Montero

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(see Dkt. No. 122). Attorney Browning apparently stopped working on this litigation in

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February 2017, the partnership of Fog City Law Group dissolved in March 2017, and Attorney

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Browning moved to withdraw in April 2017 (Dkt. No. 177). The Secretary did not oppose that

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motion because Attorney Browning’s former partner, Attorney Rebecca Turner, would stay on

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as defense counsel herein (Dkt. No. 179). A prior order therefore granted Attorney Browning’s

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motion to withdraw (Dkt. No. 180).

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Soon thereafter, in August 2017, Attorney Turner also moved to withdraw. That motion

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was ultimately granted, but Attorney Turner’s withdrawal left TLC Residential, a corporation,

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without legal representation. This, after the litigation had already been waylaid multiple times

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in the past on account of defendants’ unwillingness or inability to retain and keep counsel.

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After multiple orders, hearings, and opportunities for defendants to secure legal representation,

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the Court directed the clerk to enter default against TLC Residential (since a corporation cannot

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appear pro se) (see Dkt. No. 230 at 1–2).

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The Secretary then moved for entry of default judgment against TLC Residential (Dkt.

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No. 219). Just before the motion hearing on February 8, Attorney Browning entered a new

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notice of appearance on defendants’ behalf in this action. She did not appear personally at the

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motion hearing, but Montero appeared and used Attorney Browning’s resurfacing as an excuse

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to oppose the Secretary’s motion (see Dkt. No. 230 at 4–5). After the hearing, an order required

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both Montero and Attorney Browning to appear at an evidentiary hearing on March 7. That
order also required TLC Residential and Attorney Browning to show cause at the March 7

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For the Northern District of California

United States District Court

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hearing why default judgment should not be entered (id. at 7).

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On March 2, the Secretary brought to the Court’s attention that Attorney Browning had

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expressed intent to file another motion to withdraw (Dkt. No. 239). An order dated March 5

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cautioned that any such motion would be denied “unless supported by exceedingly good

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reason.” That order also reminded Attorney Browning that she “must faithfully and

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professionally represent her clients” (Dkt. No. 241).

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On March 6, the day before the evidentiary hearing, Attorney Browning filed a motion

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to withdraw that did not even come close to showing “exceedingly good reason” for the

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requested withdrawal. An order denied the motion the same day and repeated (Dkt. No. 246):

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Attorney Browning “must faithfully and professionally represent
her clients” so long as she remains counsel of record (see Dkt. No.
241). Montero and Attorney Browning must still appear at the
hearing tomorrow (Dkt. No. 230 at 7). TLC Residential and
Attorney Browning must still show cause at that hearing why
default judgment should not be entered (ibid.).

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Undeterred, Attorney Browning filed a second motion to withdraw later that same day.
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The second motion failed to make any significant improvement over its predecessor but added a
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declaration from Attorney Browning essentially claiming that, without financial support from
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defendants (which support was not forthcoming), she lacked the resources and capability to
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defend this case (Dkt. Nos. 247, 247-1). That motion remained pending and had not been
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granted as of March 7, at the time of the scheduled evidentiary hearing. Attorney Browning

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thus remained counsel of record for defendants.

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Attorney Browning failed to heed the Court’s orders and failed to appear at the

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evidentiary hearing. Her client, Montero, appeared and was allowed to have his say — even

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though the Secretary’s motion for default judgment was directed at the corporate defendant.

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The motion succeeded.

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Attorney Browning’s second motion to withdraw (Dkt. No. 247) is DENIED. Attorney

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Browning’s declaration and the Court’s records confirm her status as an active member of the

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bar admitted to practice law in our district (see Dkt. No. 247-1 ¶ 1). Due to her aforementioned
conduct in this litigation and pursuant to Civil Local Rule 11-6(a)(1), this matter is hereby

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For the Northern District of California

United States District Court

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REFERRED to the Court’s Standing Committee on Professional Conduct to determine if she

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should remain so.

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IT IS SO ORDERED.

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Dated: March 14, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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