Magana v. Wells Fargo Bank, N.A et al

Filing 41

ORDER by Judge Claudia Wilken GRANTING ATTORNEYS 13 MOTION TO WITHDRAW, SETTING BRIEFING SCHEDULE FOR 24 MOTION TO DISMISS AND 25 MOTION TO STRIKE, RESETTING ADR DEADLINE AND RESETTING CASE MANAGEMENT CONFERENCE. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 10/18/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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VICTORIA P. MAGANA, an
individual,
Plaintiff,

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United States District Court
For the Northern District of California

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v.
WELLS FARGO BANK, N.A.; LSI TITLE
COMPANY, a California
Corporation; and NDEX WEST LLC, a
Delaware limited liability
corporation,
Defendants.
________________________________/

No. C 11-3993 CW
ORDER GRANTING
ATTORNEY’S MOTION
TO WITHDRAW,
SETTING BRIEFING
SCHEDULE FOR
MOTION TO DISMISS
AND MOTION TO
STRIKE, RESETTING
ADR DEADLINE AND
RESETTING CASE
MANAGEMENT
CONFERENCE

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Movant Nick Pacheco, Esq., of Nick Pacheco Law Group, APC,

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counsel for Plaintiff Victoria P. Magana, seeks leave of this

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Court, pursuant to Local Rule 11-5(a), and under California Rules

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of Professional Conduct 3-700, to withdraw as counsel for

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Plaintiff.

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October 6, 2011.

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submissions and oral argument on the motion, the Court GRANTS the

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motion to withdraw.

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Plaintiff opposes the motion.

The matter was heard on

Having considered all of the parties’

Civil Local Rule 11-4(a)(1) requires attorneys practicing in

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this district to “comply with the standards of professional

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conduct required of members of the State Bar of California.”

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California Rules of Professional Conduct allow members of the

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California Bar to withdraw from representation with leave of the

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Court for several reasons, including if a client “renders it

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unreasonably difficult for the member to carry out the employment

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effectively,” if the client “breaches an agreement or obligation

The

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to the member as to expenses or fees,” or for “other good cause.”

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Cal. R. Prof. Conduct 3-700(C)(1)(d),(f), 3-700(C)(6).

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withdrawing, an attorney must take “reasonable steps to avoid

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reasonably foreseeable prejudice to the rights of the client,

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including due notice to the client, [and] allowing time for

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employment of other counsel[.]”

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3-700(A)(2).

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Before

Cal. R. Prof. Conduct

In the present case, Movant argues that there is good cause
for withdrawal under each of these subsections.

Movant contends,

United States District Court
For the Northern District of California

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and Plaintiff admits, that Plaintiff has stopped payment on the

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retainer check and has refused to pay Movant.

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that she is not required to pay Movant at this time, because she

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employed Movant to perform a loan modification for her and she

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does not have to pay Movant until he has obtained a loan

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modification for her.

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Plaintiff employed Movant to pursue the instant action to prevent

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the foreclosure of her house.

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has been uncommunicative with him and his firm, and that

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Plaintiff’s husband or boyfriend has harassed the firm.

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Accordingly, the Court finds that Plaintiff’s failure to pay for

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legal services and the breakdown of the attorney-client

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relationship, which renders representation unreasonably difficult,

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constitute good cause for withdrawal.

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that Movant taken reasonable steps to avoid reasonably foreseeable

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prejudice to Plaintiff, including providing Plaintiff with timely

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notice of his intent to withdraw and of this Motion, allowing

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ample time to secure alternate counsel, and continuing to

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represent her in obtaining a preliminary injunction.

Plaintiff asserts

However, the record demonstrates that

Movant also asserts that Plaintiff

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Further, the Court finds

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The motion to withdraw is GRANTED.

If Plaintiff wishes to

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pursue this litigation, she must retain new counsel or represent

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herself in propria persona.

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new counsel, Defendants must serve a paper copy on Plaintiff of

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any documents that Defendants file on the court’s Electronic Case

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Filing system.

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Until and unless Plaintiff retains

The current briefing and hearing schedules for Defendants’
pending Motion to Dismiss and Motion to Strike are vacated.

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Plaintiff’s opposition to those motions is due on November 17,

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United States District Court
For the Northern District of California

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2011. Defendants’ reply, if any, is due on November 28, 2011.

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motions will be decided on the papers.

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an opposition to these motions, this case will be dismissed for

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failure to prosecute.

The

If Plaintiff fails to file

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In an order dated August 29, 2011, this Court referred the

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parties to the Alternative Dispute Resolution (ADR) Unit for an

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initial assessment by telephone by September 16, 2011.

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parties have participated in one telephone call with the ADR unit

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and have represented to the Court that they need to participate in

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a second call to complete the initial assessment.

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shall participate in a further telephone conference to be

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scheduled by the ADR Unit for a date before November 10, 2011.

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The

The parties

The parties are currently set to appear for a case management

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conference on November 8, 2011 at 2:00 p.m.

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conference is continued to December 20, 2011 at 2:00 p.m.

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Pursuant to this Court’s Local Rule 16-9(a) and the Standing Order

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for All Judges of the Northern District of California, the parties

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are to submit a Joint Case Management Statement, or separate

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statements, on or before December 13, 2011.
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This case management

In the event that

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Plaintiff fails to file a statement or does not appear at the

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conference in person or through counsel, her claims will be

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dismissed for failure to prosecute.

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IT IS SO ORDERED.

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Dated: 10/18/2011

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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