California Environmental Protection Association v. Sonoma Soil Builders, LLC

Filing 38

MODIFIED ORDER Granting 34 MOTION to Withdraw as Attorney. Signed by Judge Kandis A. Westmore on 4/20/2017. (kawlc2, COURT STAFF) (Filed on 4/20/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7
8

CALIFORNIA ENVIRONMENTAL
PROTECTION ASSOCIATION,

Case No. 15-cv-04880-KAW

Plaintiff,

MODIFIED ORDER GRANTING
MOTION TO WITHDRAW AS
COUNSEL

9
v.
10
11

Re: Dkt. No. 34

SONOMA SOIL BUILDERS, LLC,

United States District Court
Northern District of California

Defendant.
12
13

Stephan C. Volker moves to withdraw his firm as Plaintiff California Environmental

14

Protection Association's counsel. (Mot. to Withdraw, Dkt. No. 34.) Plaintiff did not file an

15

opposition to Attorney Volker's motion to withdraw. The Court held a hearing on the motion on

16

April 20, 2017; Attorney Volker appeared at the hearing, but Plaintiff did not. (Dkt. No. 36.)

17

Having reviewed the parties' filings, the Court GRANTS Attorney Volker's motion to

18
19

withdraw as counsel.
I.

BACKGROUND

20

Plaintiff filed the instant case on October 23, 2015, alleging violations under the Federal

21

Pollution Control Act, also known as the Clean Water Act ("CWA"). (Compl. ¶ 1, Dkt. No. 1.)

22

On February 2, 2016, Attorney Volker was substituted in as attorney. (Dkt. No. 10.) On

23

September 23, 2016, the Court granted a stipulation between the parties which continued case

24

management and discovery dates. (Dkt. No. 30.) The parties stipulated to the following

25

deadlines: service of initial disclosures by February 15, 2017; service of discovery requests by

26

March 20, 2017; service of deposition notices by April 18, 2017; commencement of depositions

27

after July 17, 2017; service of subpoenas on third parties by August 21, 2017; service of expert

28

reports by October 23, 2017; service of expert rebuttal reports by November 27, 2017;

1

commencement of expert depositions by December 11, 2017 (Plaintiff) and January 22, 2018

2

(Defendants); and completion of all discovery by February 19, 2018. (Id. at 2-3.)

3

On January 17, 2017, Plaintiff moved for an extension of all deadlines by 90 days, in order

4

to allow the parties to complete settlement negotiations. (Dkt. No. 32.) The Court granted

5

Plaintiff's motion. (Dkt. No. 33.)

6

On March 9, 2017, Plaintiff's counsel moved to withdraw as attorney. In his declaration,

7

Attorney Volker explained that Plaintiff had failed to reimburse his firm for case costs within 30

8

days of counsel's presentation of such costs to Plaintiff. (Volker Decl. ¶ 3; Dkt. No. 34.) Attorney

9

Volker also stated there was a breakdown in communications. (Volker Decl. ¶ 6.) Specifically,
Attorney Volker would contact Plaintiff's president, Mr. Gerard Duenas, seeking contact

11
United States District Court
Northern District of California

10

information on Plaintiff's Board of Directors and members allegedly harmed by Defendants'

12

violations, as well as identification of evidence "essential to compliance with the requirements of

13

Rule 26(a)(1) of the Federal Rules of Civil Procedure regarding 'Initial Disclosure' of such

14

information." (Volker Decl. ¶ 4.) Despite repeated attempts for such information, Attorney

15

Volker was "unable to secure prompt, accurate and complete information from Mr. Duenas." In

16

the motion, Attorney Volker also notes that "relatedly, ethical considerations require withdrawal

17

of counsel." (Mot. to Withdraw at 3.)

18

On December 1, 2016, Attorney Volker informed Mr. Duenas by phone that the failure to

19

communicate "rendered it unreasonably difficult" to continue representing Plaintiff. (Volker Decl.

20

¶ 6.) Attorney Volker stated he would request to be withdrawn as counsel unless Plaintiff

21

substituted other counsel to represent it. On December 29, 2016, Attorney Volker reminded Mr.

22

Duenas of his intent to withdraw by mail and e-mail. Attorney Volker also explained to Mr.

23

Duenas that because Plaintiff was a corporation, "it could not appear in propria persona and

24

would need to secure substitute counsel." Attorney Volker's letter also gave "detailed reasons

25

compelling our withdrawal." (Id.)

26

On January 17, 2017, Mr. Duenas responded to Attorney Volker by letter, declining to

27

assent to Attorney Volker's withdrawal as counsel. (Volker Decl. ¶ 7.) Attorney Volker also

28

asserts that Plaintiff failed to find and refused to substitute new counsel, "and that the
2

1
2

communication failure necessitating this motion to withdraw have not been rectified." (Id.)
On March 9, 2017, Attorney Volker moved to withdraw as counsel. On March 10, 2017,

3

Attorney Volker filed a proof of service, stating that he arranged for service of the motion to

4

withdraw of counsel to Plaintiff by e-mail and mail. (Dkt. No. 35.) As of the date of this order,

5

no opposition has been filed by the parties.

6

II.

LEGAL STANDARD

7

Under Civil Local Rule 11-5(a),"[c]ounsel may not withdraw from an action until relieved

8

by order of Court after written notice has been given reasonably in advance to the client and to all

9

other parties who have appeared in the case." The rule further provides that:

10

United States District Court
Northern District of California

11
12
13
14
15

When withdrawal by an attorney from an action is not accompanied
by simultaneous appearance of substitute counsel or agreement of
the party to appear pro se, leave to withdraw may be subject to the
condition that papers may continue to be served on counsel for
forwarding purposes, unless and until the client appears by other
counsel or pro se. When this condition is imposed, counsel must
notify the party of this condition. Any filed consent by the party to
counsel's withdrawal under these circumstances must include
acknowledgment of this condition.
Civil L.R. 11-5(b).

16

Withdrawal is governed by the California Rules of Professional Conduct. Nehad v.

17

Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to

18

withdrawal by attorney). California Rule of Professional Conduct 3-700(C) sets forth several

19

grounds under which an attorney may request permission to withdraw. Counsel may withdraw

20

from representation in any matter in which the client "breaches an agreement or obligation to the

21

member as to expenses or fees," has made it "unreasonably difficult for the member to carry out

22

the employment effectively," or "knowingly and freely assents to termination of the employment."

23

Cal. Rules of Prof'l Conduct 3-700(C)(1)(d), (f) & (C)(5). The court has discretion to grant or

24

deny a motion to withdraw, and it can exercise that discretion, and decide to deny such a motion,

25

"where such withdrawal would work an injustice or cause undue delay in the proceeding." Gong

26

v. City of Alameda, No. 03-5495 TEH, 2008 WL 160964, at *1 (N.D. Cal. Jan. 8, 2008) (internal

27

citation and quotations omitted).

28
3

III.

1
2

DISCUSSION

Attorney Volker moves to withdraw on the following grounds: (1) that there has been

3

irreconcilable breakdown in the attorney-client relationship, preventing Attorney Volker from

4

discharging his responsibilities to represent Plaintiff; (2) that related ethical considerations require

5

withdrawal; and (3) that Plaintiff has breached an agreement regarding payment of expenses.

6

(Mot. at 3.) Attorney Volker has also submitted a declaration describing his inability to obtain

7

basic information about Plaintiff's Board of Directors and the members who have allegedly been

8

harmed by Defendants' violations of the CWA, as well as identification of evidence essential to

9

complying with Plaintiff's initial disclosure obligations. (Volker Decl. ¶ 4.) Attorney Volker also
states that Plaintiff has failed to pay his firm's costs, as required by his agreement with Plaintiff.

11
United States District Court
Northern District of California

10

(Volker Decl. ¶ 3.)

12

The Court finds that good cause exists to grant Attorney Volker's motion to withdraw.

13

Attorney Volker has attested that Plaintiff has not paid its legal bills, and has failed to

14

communicate with its attorney, preventing Attorney Volker from fulfilling his legal obligations.

15

(Volker Decl. ¶¶ 3-5.) Both of these are independently valid grounds for withdrawal.

16

Additionally, Attorney Volker identifies ethical considerations that he states justifies withdrawal.

17

Although Plaintiff was informed of Attorney Volker's intent to withdraw prior to the instant

18

motion, and served with the motion to withdraw, neither they nor Defendants have objected to the

19

motion. There has been no showing that withdrawal would work an injustice or cause undue delay

20

of existing deadlines. Accordingly, the Court GRANTS the motion to withdraw.

21
22

IV.

CONCLUSION

For the reasons stated above, the Court GRANTS Attorney Volker's motion to withdraw.

23

Because Plaintiff has not consented to the withdrawal and no substitution of counsel has been

24

filed, all papers from the court and from Defendants shall continue to be served on Plaintiff's

25

counsel for forwarding purposes until a substitution of counsel is filed. See Civil L.R. 11-5(b).

26

The Court also STAYS the case for 30 days, to allow Plaintiff reasonable time to find new counsel

27

and file a substitution of counsel. Although corporations may not appear in court pro se, see

28

Bigelow v. Brady, 179 F.3d 1164, 1165 (9th Cir. 1999), if Plaintiff has not found counsel within
4

1

30 days of this order, Plaintiff shall submit a letter to the Court on the efforts it has made to obtain

2

new counsel. The Court advises Plaintiff that failure to find new counsel or comply with Court

3

orders may result in this case being dismissed. See Brite Smart Corp. v. Google, Inc., Case No.

4

5:15-cv-3962-BLF, 2016 WL 1070667, at *1 (N.D. Cal. Mar. 16, 2016) (dismissing case for

5

failure to prosecute where corporate plaintiff was unable to obtain counsel to prosecute the case);

6

Greenspan v. Admin. Office of the U.S. Courts, Case No. 14cv2396 JTM, 2014 WL 6847460, at

7

6* (N.D. Cal. Dec. 4, 2014) (dismissing corporate plaintiff from an action due to failure to obtain

8

legal representation).

9
10

United States District Court
Northern District of California

11
12

Attorney Volker is instructed to serve this order on Plaintiff, and to file a proof of service
of such service.
IT IS SO ORDERED.
Dated: April 20, 2017
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5