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Tamara Johnston v. Deputy Officer John Gillette


May 30, 2012


The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge


Pending before the Court is Plaintiff's counsel's Motion to Be Relieved as Counsel per Local Rule 11-5. (Dkt. No. 41). Having reviewed the papers and had the benefit of argument 21 on May 30, 2012, the Court GRANTS the motion.


Tamara Johnston filed suit against the County of Sonoma, its elected Sheriff, and 24 three deputy sheriffs who responded to a 911 call for assistance from Johnston's neighbor. 25 The case originally asserted four claims under 42 U.S.C. § 1983: excessive force, 26 Monell, unlawful seizure and imprisonment, and forced medical treatment. District Court 27 Judge Breyer previously granted Defendants' Motion to Dismiss in part and Defendants' 28 Motion for Partial Summary Judgment such that the only remaining claim is a claim for excessive force against Defendants John Gillette and Jeffrey Toney. (Dkt. Nos. 16, 29). On 2 Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 36). Trial is scheduled to 4 commence on June 11, 2012.

Counsel. Counsel asserts that it has become unreasonably difficult for him to effectively 7 carry out his employment as Plaintiff's counsel. (Dkt. No. 41-4, ¶ 9). On May 30, 2012, 8 counsel informed the Court in camera of the circumstances giving rise to the motion.

Pursuant to the Local Rules, "[c]counsel may not withdraw from an action until relieved 11 by order of the Court after written notice has been given reasonably in advance to the client 12 and to all other parties who have appeared in the case." Civ. L.R. 11-5(a). Further, "[w]hen withdrawal by an attorney from an action is not accompanied by simultaneous appearance of 14 substitute counsel or agreement of the party to appear pro se, leave to withdraw may be 15 subject to the condition that papers may continue to be served on counsel for forwarding 16 purposes, unless and until the client appears by other counsel or pro se." Civ. L.R. 11-5(b). In 17 this district, the conduct of counsel, including withdrawal of representation, is governed by 18 the standards of professional conduct required of members of the State Bar of California. See 19 14, 2008). Under California Rule of Professional Conduct 3-700(C)(1)(d), an attorney may 21 request permission to withdraw if the client's "conduct renders it unreasonably difficult for 22 the [attorney] to carry out the employment effectively." The decision to grant or deny a 23 motion to withdraw as counsel is committed to the sound discretion of the trial court. See 24

Here, counsel's motion states that "Plaintiff has failed to respond in any way" to

26 correspondence and "continued representation of Plaintiff would result in an unreasonable 27 financial burden" on counsel. (Dkt. No. 41, p. 3). Plaintiff's counsel, Mr. deSaulles, 28 explained the basis of the motion in camera at oral argument. Plaintiff was represented for

April 27, 2012, the parties filed their consent to have the case reassigned to the undersigned 3

On May 18, 2012, Plaintiff's Counsel filed the underlying Motion to be Relieved as


California Native Plant Society v. United States E.P.A., 2008 WL 4911162 (N.D. Cal. Nov. 20 LaGrand v. Stewart, 133 F.3d 1253, 1269 (9th Cir. 1998).

purposes of the hearing by her husband, Richard Johnston, who is an attorney admitted to 2 practice before this Court. Mr. Johnston indicated that Plaintiff does not oppose the motion to 3 withdraw, but seeks a continuance of the trial date if the motion is granted to allow new 4 counsel sufficient time to adequately prepare. 5

As set forth at oral argument, the Court finds good cause to grant counsel's Motion to

6 be Relieved as Counsel. While the Court understands Defendants' objection to a continuance 7 of the trial date, the Court finds that the prejudice to Plaintiff from not continuing the trial 8 outweighs any prejudice to Defendants; accordingly, the Court will continue the trial date to 9 afford Plaintiff the opportunity to obtain new counsel. 10


Based on the foregoing, the Court GRANTS counsel's Motion to be Relieved as Counsel per Local Rule 11-5. (Dkt. No. 41). The Clerk shall amend the docket to indicate

that Plaintiff is appearing pro se. Until Plaintiff procures new counsel, papers shall continue 14 to be served on former counsel Richard deSaulles for forwarding purposes and on Plaintiff 15 individually. Mr. deSaulles shall immediately advise the Court of Plaintiff's current address 16 and the Clerk shall amend the docket to reflect this information. Plaintiff is obligated to keep 17 the Court informed of her current address. 18

The Court VACATES the June 11, 2012 trial date to allow Plaintiff an opportunity to 19 obtain new counsel. The trial date is continued until October 1, 2012. The Final Pretrial 20 Conference is scheduled for September 13, 2012 at 2:00 p.m. Any further motions to 21 continue the trial date will be disfavored. 22 Mr. deSaulles shall serve a copy of this Order on Plaintiff within three days and shall 23 file a proof of service with this Court. 24



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