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Jody Lynn Von Haar v. City of Mountain View

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


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 ¶ 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 22 find successor counsel, he should have notified opposing counsel and the Court to either seek a 23 stay of discovery until the matter could be resolved or file a motion to withdraw from the case. 24

Moreover, Mr. Look's position is inconsistent with his conduct after the June 6 Order to Show Cause. Although he claims that he could no longer afford to prosecute the case, and he was 27 seeking successor counsel, when the Court ordered him to file a motion to withdraw as counsel by 28

Instead, he avoided his Court imposed obligations and did a disservice to his client. 25

July 15, 2011, he utterly failed to do so. Order Regarding Status of Plaintiff's Counsel, July 2, 2 2011, ECF No. 38. Indeed, it wasn't until after the August 31, 2011 hearing in which the Court 3 indicated it was contemplating issuing sanctions against Mr. Look for his failure to comply with 4 the Court's Order that he belatedly filed a motion to withdraw. 5

Mr. Look now explains that he failed to file a motion to withdraw as counsel because he "failed to calendar it" and he "did not expect to file one since well before the due date I had 7 resolved to dismiss the case such that the motion was not needed." Response to Order to Show 8 Cause ¶ 15, September 6, 2011, ECF No. 48-1. Such explanations are contrary to what Mr. Look 9 stated at the August 31, 2011 hearing. At that time, Mr. Look claimed he had misread the Court's 10 order and did not understand that he was required to file a motion to withdraw as counsel. The 11 shifting excuses undermine Mr. Look's credibility, and in any event, they do not excuse the complete disregard of the Court's Order. 13

Mr. Look has raised several "technical issues" in his response to the order to show cause.

None of these "issues" impedes the Court's ability to issue this Order. For one, the Court short set 15 the hearing and subsequent briefing schedule to accommodate Mr. Look's impending bar 16 suspension. Had Mr. Look moved to withdraw from the case as he was initially instructed to do in 17

July, there would not have been a need to set a shortened schedule. Moreover, several of the 18 reasons for the order to show cause were raised in June 2011. Therefore, Mr. Look has had ample 19 time to respond to these allegations and has failed to provide adequate justification for his failure to 20 comply and appear. Nor does the voluntary dismissal moot the inquiry into Mr. Look's prior 21 conduct. Indeed, given that Mr. Look may continue to represent clients after his bar suspension, 22 the need to address these issues now is heightened. 23

24 finally able to contact Ms. Von Haar, who agreed to a voluntary dismissal on September 2, 2011. 25

The Court views Mr. Look's explanations with skepticism. At the August 31, 2011 case 26 management conference, Mr. Look claimed that he was unable to contact his client between June 1, 27

Mr. Look devotes much of his response to explaining that on August 31, 2011, he was

2011 and August 31, 2011. Response to Order to Show Cause ¶¶ 9-17, September 6, 2011, ECF 28 No. 48-1. At the August 31, 2011 case management conference, the Court indicated it would be 2 issuing an order to show cause as to why sanctions should not be imposed. Mr. Look claims that 3 on August 31, 2011, he returned home, searched through the file once more, found another number 4 for the plaintiff, and finally made contact using this number. Response to Order to Show Cause ¶ 5

13, September 6, 2011, ECF No. 48-1. It is not credible that Mr. Look, who claims he was unable 6 to reach his client for three full months while he was allegedly attempting to find replacement 7 counsel, was suddenly and miraculously able to contact her, and secure her promise for a dismissal, 8 on the day that he realized he was potentially personally liable for sanctions. The Court is 9 concerned that Mr. Look has not been forthright with Ms. Von Haar, and has not properly 10 represented her interests throughout the months he failed to comply with the court orders. In light of these concerns, a copy of this Order, as well as the underlying order to show cause, shall be forwarded to the State Bar. See Local Rule 11-6(a)(3). 13

14 contempt. See General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir. 1986). In 15 this case, the Court finds that sanctions are not warranted for several reasons. Defense counsel's 16 declaration did not contain sufficient detail such that Mr. Look could challenge, or the Court could 17 review, the billing statement to determine if the fees sought were as a result of Mr. Look's conduct 18 or were reasonable. Additionally, because the Court deems notification to the State Bar sufficient 19 at this time to protect the interests of the public, the Court declines to exercise its discretion and 20 issue attorneys fees based on Mr. Look's conduct. 21

23 relieved by order of Court after written notice has been given reasonably in advance to the client 24 and to all other parties who have appeared in the case. Civil Local Rule 11-5(b). The decision to 25 permit counsel to withdraw is within the sound discretion of the trial court. United States v. 26

Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). When addressing a motion to withdraw, the consent 27 of the client is not dispositive. Robinson v. Delgado, No. CV 02-1538, 2010 WL 3259384, at *2 28

The Court has discretion in deciding whether to impose sanctions if a party is found in

II. ORDER PERMITTING COUNSEL TO WITHDRAW

Pursuant to Civil Local Rule 11-5(b), Counsel may not withdraw from an action until

(N.D.Cal. 2010). Rather, the court must consider factors such as the reason counsel seeks to 2 withdraw, the possible prejudice caused to the litigants, and the extent to which withdrawal may 3 delay resolution of the case. Id. 4

According to Civil Local Rule 11-1(b), only active members in good standing of the State Bar of California are authorized to practice in this Court. Given that Mr. Look begins his 6 suspension September 10, 2011, and will no longer be an active member in good standing of the 7

In light of the course of events that have precipitated this Order, the Court considers the orders to 9 show cause that were mailed to Ms. Von Haar to be sufficient to constitute written notice of the 10 impending withdrawal. See ECF Nos. 43-44. Ms. Von Haar will be considered a pro se litigant 11 going forward. Mr. Look served Ms. Von Haar 14 simultaneous appearance of substitute counsel or agreement of the party to appear pro se, the court 15 may grant withdrawal subject to the condition that papers continue to be served on counsel for 16 forwarding purposes. In this case, Mr. Look has provided a last known address of Ms. Von Haar, 17 which the Court and the parties will use for future filings. 18

Civ. P. 41 (a)(1)(A)(i) (Plaintiff may only dismiss an action without court order if the notice of 22 dismissal is filed before the opposing party serves either an answer or a motion for summary 23 judgment); Defendant's Answer to Plaintiff's Second Amended Complaint, March 16, 2011, ECF 24

No. 26. Plaintiff, proceeding pro se, must be given the opportunity to appear and be heard if she 25 wishes to proceed. 26 27

State Bar of California on that date, the Court must allow him to withdraw as counsel in this case. 8

with information regarding the Federal Legal

Assistance Self-Help Center ("FLASH") at the San Jose Courthouse.*fn2

Under Civil Local Rule 11-5(b), when withdrawal by an attorney is not accompanied by

III.ORDER REGARDING VOLUNTARY DISMISSAL

Plaintiff may not enter a voluntary dismissal in this case, absent a court order, because

Defendant Mountain View filed an Answer to Plaintiff's Second Amended Complaint. See Fed. R. 21

Defendant Mountain View has filed a motion to have the case dismissed with prejudice for 2 failure to prosecute. See ECF No. 50. This motion will now be considered concurrently with the 3 order to show cause why the case should not be dismissed for failure to prosecute. *fn3 In light of the 4 developments in this case, and in order to give the Plaintiff enough time to respond, the Court 5

VACATES the previous briefing and hearing schedule, and SETS the following schedule: 6

Plaintiff's Response to Order to Show Cause must be filed by October 6, 2011. Defendant may file 7 a reply, explaining why the dismissal should be with prejudice, by October 13, 2011. The hearing 8 will be set on October 27, 2011. 9

IV.CONCLUSION

For the foregoing reasons, the Court finds Attorney William B. Look to be in Contempt and

11 will send a copy of this Order to the State Bar, but declines to impose monetary sanctions. The Court GRANTS Mr. Look's motion to withdraw as counsel in this matter. The Court will not issue 13 an order dismissing the case at this time.

IT IS SO ORDERED. 15


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