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Jody Lynn Von Haar v. City of Mountain View

September 12, 2011

JODY LYNN VON HAAR,
PLAINTIFF,
v.
CITY OF MOUNTAIN VIEW, TONY VIERYA, AKA JOSE VIEYRA, TY ZEMLOK,
FERNANDO MALDONADO, DOES 1-100,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

CIVIL CONTEMPT ORDER; ORDER GRANTING WITHDRAWAL OF COUNSEL; ORDER REGARDING VOLUNTARY DISMISSAL

United States District Court For the Northern District of California

18 orders in this case. A full recitation of the facts describing Mr. Look's conduct in this case is set 19 out in this Court's order to show cause why sanctions should not be imposed. Order to Show 20

2011, Mr. Look was ordered to show cause why he should not be sanctioned for (1) failure to 22 disclose to opposing counsel that his impending suspension by the State Bar was the true reason for 23 his potential temporary withdrawal from the case; (2) failure to appear at the May 4, 2011 case 24 management conference; (3) failure to comply with discovery deadlines imposed by the Court's 25

May 4, 2011 order; and (4) failure to comply with the Court's July 2, 2011 order to file a motion to 26 withdraw as counsel by July 15, 2011. Order to Show Cause Why Sanctions Should Not Be 27

Attorney William B. Look has displayed a disturbing pattern of failure to comply with court

Cause Why Sanctions Should Not Be Imposed, September 1, 2011, ECF No. 43. On September 1, 21

Imposed, September 1, 2011, ECF No. 43. Because he faced a suspension starting September 10, 28 2011, and he was still the attorney of record in the matter, the Court set an expedited briefing 2 schedule so that the show cause hearing could take place before his suspension started. Mr. Look 3 filed a response to the order to show cause on September 6, 2011. See ECF Nos. 48-49. A hearing 4 was held on September 8, 2011. For the reasons set forth below, the Court issues this Civil 5 Order, and the underlying order to show cause why sanctions should not be imposed, to the State 7

The Court also GRANTS counsel's motion to withdraw from this matter because of his 9 suspension from the State Bar. The Court will not issue an order dismissing this matter at this 10 time. Instead, the order to show cause why this case should not be dismissed for failure to prosecute will proceed with the amended schedule set forth below.

Contempt Order for failure to comply with court orders. The Court will forward a copy of this 6 Bar. 8

I.CIVIL CONTEMPT ORDER

The Court will consider each of the reasons set forth in the September 1, 2011 Order to Show Cause*fn1 in turn. Civil contempt may arise out of counsel's failure to comply with court 15 orders. Civil contempt consists of "a party's disobedience to a specific and definite court order by 16 failure to take all reasonable steps within the party's power to comply. The contempt need not be 17 willful; however, a person should not be held in contempt if his action appears to be based on a 18 good faith and reasonable interpretation of the court's order." Reno Air Racing Ass'n v. McCord, 19 452 F.3d 1126, 1130 (9th Cir. 2006) (internal quotations and citations omitted). A court may 20 impose a civil contempt sanction only if there is clear and convincing evidence that "(1) the 21 contemnor violated a court order, (2) the noncompliance was more than technical or de minimis 22 (substantial compliance is not punishable as contempt), and (3) the contemnor's conduct was not 23 the product of a good faith or reasonable interpretation of the violated order." 7 James Wm. Moore 24 et al., Moore's Federal Practice § 37.51[7], at 37-109 (footnotes omitted); see United States v. Bright, 596 F.3d 683, 694 (9th Cir. 2010) (quoting Labor/Cmty. Strategy Ctr. v. L.A. County 2

Mr. Look began to show signs of abandonment of this case starting in March and April 2011 when, as he concedes in his declaration, he failed to respond to discovery requests. Response 5 to Order to Show Cause ¶ 3, September 6, 2011, ECF No. 48-1. He then failed to appear at the 6 Metro. Trans. Auth., 564 F.3d 1115, 1123 (9th Cir. 2009)). 3

May 4, 2011 case management conference and failed to comply with the discovery deadlines 7 imposed by the Court's May 4, 2011 case management order. There is no dispute that Mr. Look 8 failed to appear and failed to comply with the May 4 order. As a result of these failures, the Court 9 issued its first order to show cause why this case should not be dismissed for failure to prosecute on 10 June 6, 2011.

In his June 17, 2011 response to the June 6, 2011 Order to Show Cause, Mr. Look explained that he failed to appear at the May 4 conference and to comply with the May 4 discovery 13 orders because he was unable to prosecute the case for lack of funds. See ECF No. 34. In his 14

September 6, 2011 response, Mr. Look also argued that he was attempting to secure successor 15 counsel to take the case during his impending suspension and that this excuses his failure to 16 comply and to appear. On September 6, 2011, he explained that "I did not have the funds to pay 17 for discovery and if new counsel came into the case, any dates set would have to be reset. If the 18 case had to be dismissed, there was no point in starting discovery." Response to Order to Show 19 Cause ΒΆ 8, September 6, 2011, ECF No. 48-1. These explanations do not constitute either a good 20 faith interpretation, or substantial compliance with the court orders. Mr. Look's unilateral decision 21 that it would be inefficient to comply with the Court's orders is no excuse. If he needed time to ...


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