Walnut Creek Manor, LLC v. Mayhew Center, LLC et al

Filing 316

ORDER by Judge Claudia Wilken GRANTING 298 MOTION TO WITHDRAW. (ndr, COURT STAFF) (Filed on 8/12/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WALNUT CREEK MANOR, LLC,

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No. C 07-5664 CW

Plaintiff,

ORDER GRANTING
MOTION TO WITHDRAW
(Docket No. 298)

v.
MAYHEW CENTER, LLC, and DEAN
DUNIVAN,
Defendants.
________________________________/

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United States District Court
For the Northern District of California

The law firm of Burnham Brown moves to withdraw as counsel
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for Defendants Dean Dunivan and Mayhew Center, LLC.

Defendant

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Dunivan, who serves as manager and majority owner of Mayhew
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Center, opposes the motion.1

The Court finds the matter suitable

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for decision without oral argument and now grants the motion.
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BACKGROUND
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The parties entered into a settlement agreement in 2010.
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Under the terms of that agreement, Defendants were required to
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clean up and abate the chemical contamination that they caused on
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Plaintiff’s property by November 2012.

See Docket No. 273,

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Stipulation & Injunction, at 8.

After Defendants failed to meet

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this requirement, the Court extended their deadline to do so until
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July 31, 2013.

Docket No. 287.

To date, Defendants have not

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cleaned up the contamination on Plaintiff’s property.

See Docket

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Dunivan asserts that he filed his opposition on behalf of
himself, his wife, and Mayhew Center. However, his wife is not a party
in this litigation. Furthermore, because Dunivan is proceeding pro se,
the local rules preclude him from representing Mayhew Center. Civil
L.R. 3-9(b) (“A corporation, unincorporated association, partnership or
other such entity may appear only through a member of the bar of this
Court.”).

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No. 304, Defs.’ Mot. for Extension of Time to Complete Cleanup &

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Abatement, at 2.

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Burnham Brown filed the instant motion to withdraw in June

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2013.

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the firm’s relationship with Dunivan “has significantly

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deteriorated to the point where it is now impossible for Counsel

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to continue to represent [Mayhew Center and Dunivan] and to take

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the necessary steps to continue to diligently pursue and protect

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their best interests.”

An attorney with the firm, Charles Alfonzo, asserts that

Docket No. 298-1, Declaration of Charles

United States District Court
For the Northern District of California

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A. Alfonzo ¶ 3.

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“in excess of $100,000 all of which has not been paid after

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repeated requests to do so.”

Alfonzo also asserts that Defendants owe the firm

Id. ¶ 2.

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DISCUSSION

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In a civil case, counsel may not withdraw from an action

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until relieved by court order.

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3-700(C) of the California Rules of Professional Conduct provides

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that an attorney

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See Civil L.R. 11–5(a).

Rule

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may not request permission to withdraw in matters pending
before a tribunal, and may not withdraw in other matters,
unless such request or such withdrawal is because:

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(1) the client

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(a)

insists upon presenting a claim or defense that is
not warranted under existing law and cannot be
supported by good faith argument for an extension,
modification, or reversal of existing law, or . . .

(d)

by other conduct renders it unreasonably difficult
for the member to carry out the employment
effectively, or . . .

(f)

breaches an agreement or obligation to the
[attorney] as to expenses or fees. . . .

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Here, Burnham Brown has presented evidence that Dunivan has
failed to pay a significant amount of money to the firm for
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services rendered over the past year.

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evidence that its fractured relationship with Dunivan makes it

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“unreasonably difficult” to continue representing him.

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sufficient to justify withdrawal under Rule 3-700(C).

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The firm has also presented

This is

Dunivan does not dispute that he has failed to pay Burnham
Brown.

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owes the firm over $120,000.

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however, that Burnham Brown’s motion to withdraw is untimely.

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Dunivan contends that, because he has failed to pay his legal

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United States District Court
For the Northern District of California

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bills for over a year, the firm should have moved to withdraw

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several months ago.

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have moved to withdraw in December 2012, when his unpaid legal

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bills totaled roughly $98,000.

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should have notified the Court of his outstanding debt at that

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time.

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In fact, he concedes in his opposition that he currently
Docket No. 302, Opp. 8.

He argues,

Specifically, he asserts that the firm should

Dunivan contends that the firm

This argument fails for several reasons.

First, the Rules of

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Professional Conduct do not require that an attorney move to

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withdraw within a limited time period after his or her client

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fails to make a payment.

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believed that Dunivan would eventually pay his outstanding debt

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and only decided to withdraw after Dunivan’s debt continued to

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grow.

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more problematic in December 2012 because Dunivan’s motion for an

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extension of time to complete cleanup and abatement was still

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pending at that time.

Burnham Brown may have reasonably

Second, Burnham Brown’s motion to withdraw would have been

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Third and finally, Dunivan’s failure to

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What’s more, if Dunivan wished to notify the Court about his
outstanding debt at that time, he could have directed his attorneys to
do so -- or done so himself -- at the hearing on that motion in January
2013.

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pay is not the only basis Burnham Brown has asserted for

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withdrawing: as noted above, the firm also alleges that its

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relationship with Dunivan has “deteriorated to the point where it

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is now impossible to represent” him and Mayhew Center.

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Decl. ¶ 3.

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refute this assertion and, as such, has not shown that the firm’s

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motion is untimely.

Alfonzo

Dunivan has not presented any evidence or argument to

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Dunivan next argues that his debt to the firm does not

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provide a basis for withdrawal because he never believed he was

United States District Court
For the Northern District of California

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responsible for paying Burnham Brown’s fees.

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is unpersuasive.

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refers to Dunivan as “Client” and Burnham Brown as “Attorney” --

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expressly provides, “Client agrees to pay for legal services” at

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the rates outlined in the contract.

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added).

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within thirty (30) days of each statement’s date.”

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added).

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fails to meet its payment obligations under this Contract,

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Attorney reserves the right to stop work on Client’s matter until

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such time as Client satisfies its payment obligations as set forth

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above.”

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This argument, too,

Dunivan’s agreement with the firm -- which

Def.’s Ex. 1,3 at 2 (emphasis

It also states, “Client shall pay Attorney’s statements
Id. (emphasis

Finally, the contract provides, “In the event that Client

Id. (emphasis added).

Although the contract names Dr. Clifford Tschetter -- a non-

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party in this suit -- as Dunivan’s guarantor, this does not

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relieve Dunivan of his obligations under the contract.

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contract plainly states that Dunivan was responsible for paying

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the firm’s fees.

The

Even if Dunivan and Tschetter had some

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Although Dunivan refers to this contract as “Exhibit 3” in his
opposition brief, he has labeled the document, “Exhibit 1.”

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independent understanding that Tschetter would pay Dunivan’s legal

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fees, as Dunivan alleges, this would not change the fact that

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Burnham Brown has not been compensated for the services it has

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provided.

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that Dunivan has with him regarding Dunivan’s fee agreement with

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the firm, including any guarantees Tschetter may have made

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therein, is a matter for state court.

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Dunivan and Mayhew Center breached their payment obligations under

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their contract with Burnham Brown; this is sufficient grounds for

United States District Court
For the Northern District of California

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Tschetter is not a party to this case and any dispute

withdrawal.

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What matters here is that

Cal. R. Prof. Conduct 3-700(C)(1)(f).

Finally, Dunivan contends that he and Mayhew Center will be

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prejudiced by Burnham Brown’s withdrawal.

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presented any evidence to support this claim.

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closed in 2010 after the parties reached a settlement agreement

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and the Court has already granted Defendants an extension of time

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to satisfy their obligations under that agreement.

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287.

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this point will undermine Defendants’ efforts to comply with their

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remaining obligations under the settlement agreement.

However, he has not
This case was

See Docket No.

Dunivan has not explained how Burnham Brown’s withdrawal at

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CONCLUSION

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For the reasons set forth above, Burnham Brown’s motion to

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withdraw (Docket No. 298) is GRANTED.

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an in camera hearing or leave to file documents under seal in

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support of its motion to withdraw (Docket No. 312) is DENIED as

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moot.

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for leave to subpoena Tschetter and Eric Haas is DENIED.

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to Civil Local Rule 3-9(b),

Burnham Brown’s motion for

Defendant Dunivan’s request for an in camera hearing and

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Pursuant

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Defendant Mayhew Center may not appear unless represented by a

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member of the bar of this Court.

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IT IS SO ORDERED.

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Dated: 8/12/2013

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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