Jungers v. City of San Diego

Filing 33

ORDER Granting 30 Motion to Withdraw as Counsel for Plaintiff John Jungers. Attorney Pena shall serve a copy of this order on Plaintiff John Jungers at his last known mailing and e-mail address or addresses. On or before December 2, 2022, Attor ney Pena shall file a notice with this Court listing the mailing and e-mail addresses used to serve Plaintiff John Jungers. On or before December 9, 2022, Plaintiff John Jungers shall file a notice with this Court verifying his mailing and e-mail addresses. Signed by Judge Thomas J. Whelan on 11/21/22. (dlg)

Case 3:21-cv-00829-W-MSB Document 33 Filed 11/21/22 PageID.155 Page 1 of 4

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN JUNGERS,

Case No.: 21-CV-0829 W (MSB)
Plaintiff,

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v.

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CITY OF SAN DIEGO, et al.,

ORDER GRANTING ATTORNEY’S
MOTION TO WITHDRAW AS
COUNSEL FOR PLAINTIFF JOHN
JUNGERS [DOC. 30]

Defendants.

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Attorney Danielle R. Pena and PHG Law Group have filed a motion to withdraw

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as attorney of record for Plaintiff John Jungers. The motion is unopposed.
The Court decides the matter on the papers submitted. See Civ.L.R. 7.1.d.1. For

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the reasons set forth below, the Court GRANTS the motion [Doc. 30].

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I.

BACKGROUND
On April 28, 2021, Plaintiff John Jungers filed the Complaint naming Defendants

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City of San Diego, SDPD Officers Fernando F. Rincon, Jr. and Brooks R. Noble

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(collectively, the “City Defendants”), the County of San Diego and various Doe

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Defendants. (See Compl. [Doc. 1].) Thereafter, Plaintiff settled with the City Defendants

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and on November 2, 2021, filed a joint motion to dismiss the City Defendants. (See Jt.

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Motion [Doc. 18].)

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Meanwhile, Defendant County of San Diego filed a motion to dismiss, which was

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granted without leave to amend on December 22, 2021. (See MTD Order [Doc. 20].) As

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a result, the only remaining defendants are the does.
On January 26, 2022, this Court issued an Order to Show Cause (“OSC”) why the

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case should not be dismissed for failure to serve any of the doe defendants. (See OSC I

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[Doc. 22].) Plaintiff’s response to the OSC requested an opportunity to discover the

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identities of the doe defendants. (Pl’s Response to OSC I [Doc. 23] 3:1–6.)

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On March 28, 2022, the parties attended a telephonic discovery conference with

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the Magistrate Judge. (Minute Order [Doc. 28].) Shortly after the telephonic conference,

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Attorney Pena spoke with Plaintiff about the status of the case and advised him on how to

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proceed. (Pena Decl. [Doc. 30-1] ¶2.) Since then, Attorney Pena has been unable to

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contact Plaintiff despite multiple attempts via telephone and email. (Id. ¶¶ 2–4.)

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On September 29, 2022, this Court issued a second OSC for failure to serve the

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doe defendants. (See OSC II [Doc. 29].) Following the issuance of the second OSC,

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Attorney Pena again attempted unsuccessfully to contact Plaintiff. (Pena Decl. ¶ 3.)

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On October 12, 2022, in response to the second OSC, Attorney Pena filed the

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pending motion to withdrawal as counsel based on the complete and total breakdown in

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communication with Plaintiff. (Motion [Doc. 30] 2:24–25, 4:12–14.)

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II.

DISCUSSION
An attorney may not withdraw as counsel except by leave of court. Darby v. City

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of Torrance, 810 F.Supp. 275, 276 (C.D.Cal.1992); Civ.L.R. 83.3.f.3. “The grant or

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denial of an attorney’s motion to withdraw in a civil case is a matter addressed to the

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discretion of the trial court....” Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081,

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1087 (7th Cir. 1982). Factors considered in evaluating the motion are “1) the reasons

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why withdrawal is sought; 2) the prejudice withdrawal may cause to other litigants; 3) the
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harm withdrawal might cause to the administration of justice; and 4) the degree to which

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withdrawal will delay the resolution of the case.” CE Resource, Inc. v. Magellan Group,

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LLC, 2009 WL 3367489, at *2 (E.D.Cal. 2009) (citing Canandaigua Wine Co., Inc. v.

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Moldauer, 2009 WL 89141, at *1 (E.D.Cal. 2009)).

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Withdrawal of counsel is governed by the standards of professional conduct

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required of members of the State Bar of California. See Nehad v. Mukasey, 535 F.3d

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962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to attorney

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withdrawal). California Rule of Professional Conduct 3-700(C) enumerates several

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grounds under which counsel may properly seek to withdraw from a representation. Rule

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3-700(B)(d) provides that an attorney may seek withdrawal where the client’s conduct

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“renders it unreasonably difficult for the member to carry out the employment

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effectively.” Accordingly, “[s]tate and federal courts in California have granted motions

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to withdraw where a client fails to cooperate and communicate with counsel regarding

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the representation.” BLK Enters., LLC v. Unix Packaging, Inc., 2018 WL 5993842, at *1

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(C.D.Cal. 2018) (citations omitted).

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Here, Plaintiff’s failure to respond to Attorney Pena’s numerous attempts to

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contact him renders it unreasonably difficult for counsel to carry out her representation of

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Plaintiff in this lawsuit. Additionally, given the posture of this case—i.e., none of the

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remaining defendants have been served—there is nothing in the record suggesting that

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Attorney Pena and PHG Law Group’s withdrawal will prejudice the litigants in this

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matter, will harm the administration of justice or unduly delay the resolution of this case.

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Further, Attorney Pena has demonstrated diligence in attempting to notify her client of

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the motion to withdraw. (Pena Decl. Re. Service [Doc. 32] ¶¶ 2–3.)

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III.

CONCLUSION & ORDER

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For all the reasons set forth above, the Court GRANTS Attorney Pena and PHG

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Law Group’s motion to withdraw as attorney of record for Plaintiff John Jungers [Doc.

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30] and ORDERS as follows:
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Attorney Pena shall serve a copy of this order on Plaintiff John Jungers at
his last known mailing and e-mail address or addresses.

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On or before December 2, 2022, Attorney Pena shall file a notice with this

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Court listing the mailing and e-mail addresses used to serve Plaintiff John

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Jungers.

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On or before December 9, 2022, Plaintiff John Jungers shall file a notice
with this Court verifying his mailing and e-mail addresses.

IT IS SO ORDERED.
Dated: November 21, 2022

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21-CV-0829 W (MSB)