United States District Court, N.D. California, San Jose Division
ORDER CONDITIONALLY GRANTING DEFENDANTS'
COUNSEL'S MOTION TO WITHDRAW; STAY OF ACTION RE: DKT. NO.
VIRGINIA K. DEMARCHI, UNITED STATES MAGISTRATE JUDGE.
for defendants ScanX, Inc. (“ScanX”) and Rock
Clapper, David Nemecek and The Fortress Law Firm, Inc., move
to withdraw from representation of defendants pursuant to
Civil Local Rule 11-5. Dkt. No. 44. Plaintiff Carlson Produce
opposes the motion. Dkt. No. 49. The Court heard oral
argument on counsel's motion on June 25, 2019. Dkt. No.
considered the parties' moving papers, the Court grants
counsel's motion to withdraw, subject to certain
conditions set forth below.
November 28, 2018, plaintiffs Craig Carlson and Carlson
Produce, Inc. (“Carlson Produce”) filed this
action against defendants ScanX and Mr. Clapper. Dkt. No. 1.
After two motions to dismiss, the only remaining claims are
Carlson Produce's claims for breach of contract and
quantum meruit against ScanX only, and Carlson Produce's
claim for fraud against both ScanX and Mr. Clapper. Dkt. Nos.
26, 45. Mr. Carlson is no longer a plaintiff in the case.
Mr. Clapper nor ScanX has filed any objections with the Court
concerning their counsel's request to withdraw from
Civil Local Rule 11-5(a), “[c]ounsel may not withdraw
from an action until relieved by order of Court after written
notice has been given reasonably in advance to the client and
to all other parties who have appeared in the case.”
Until the client obtains other representation, motions to
withdraw as counsel may be granted on the condition that
current counsel continue to serve on the client all papers
from the court and from the opposing parties. Civ. L.R.
California Rules of Professional Conduct govern withdrawal
from representation. Nehad v. Mukasey, 535 F.3d 962,
970 (9th Cir. 2008) (applying California Rules of
Professional Conduct to attorney withdrawal); see also
Dieter v. Regents of Univ. of Cal., 963 F.Supp. 908,
910 (E.D. Cal. 1997). Rule 1.16 describes the circumstances in
which an attorney may withdraw from representation. These
include situations where “the client . . . renders it
unreasonably difficult for the lawyer to carry out the
representation effectively” and where “the client
breaches a material term of an agreement with, or obligation,
to the lawyer relating to the representation.” Cal. R.
Prof'l Conduct 1.16(b)(4), (5).
where circumstances permit withdrawal, counsel may not
“terminate a representation until [counsel] has taken
reasonable steps to avoid reasonably foreseeable prejudice to
the rights of the client . . . .” Cal. R. Prof'l
Conduct 1.16(d). These steps include (1) giving the client
sufficient notice to permit the client to retain other
counsel; (2) at the client's request, promptly releasing
the client's materials and property to the client; and
(3) promptly refunding any part of a fee or expense paid in
advance that the lawyer has not earned or incurred. Cal. R.
Prof'l Conduct 1.16(d), (e).
decision to permit counsel to withdraw is within the sound
discretion of the trial court. United States v.
Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). Courts
consider several factors when deciding a motion for
withdrawal, including: “(1) the reasons counsel seeks
to withdraw; (2) the possible prejudice that withdrawal may
cause to other litigants; (3) the harm that withdrawal might
cause to the administration of justice; and (4) the extent to
which withdrawal will delay resolution of the case.”
Deal v. Countrywide Home Loans, No. 09-CV-01643-SBA,
2010 WL 3702459, at *2 (N.D. Cal. Sept. 15, 2010).
counsel seeks permission to withdraw from representation on
the grounds that defendants have breached the attorney-client
fee agreement and that their conduct has rendered it
unreasonably difficult for him to carry out the
representation effectively. Dkt. No. 44 at 2.
Produce does not dispute that defendants' counsel has
provided sufficient reasons for withdrawal from
representation. Rather, Carlson Produce's sole objection
is that counsel's withdrawal will delay this action,
thereby prejudicing Carlson Produce. Dkt. No. 47 at 2. In
particular, Carlson Produce contends that it has served
written discovery on defendants, and defendants'
responses are due July 1, 2019. Carlson Produce says it has
also noticed the deposition of Mr. Clapper for July 31, 2019.
Id. Carlson Produce's objections regarding delay
are not well taken. As defendants' counsel observes,
Carlson Produce took no steps to obtain any discovery in this
matter until after it filed its opposition to counsel's
motion to withdraw, which suggests that Carlson Produce's
concerns about ...