Anderson
v.
Duran

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISIONJul 7, 2014
No. C 13-04825 RS (N.D. Cal. Jul. 7, 2014)

No. C 13-04825 RS

07-07-2014

JOHN P. ANDERSON, in his official capacity as the Sheriff of Madera County, and individually, Plaintiff, v. JACK DURAN, JR., in his official capacity, et al., Defendants.


ORDER CONTINUING HEARING ON

MOTION FOR SUMMARY

JUDGMENT AND MOTION FOR

JUDGMENT ON THE PLEADINGS

AND GRANTING MOTION TO

WITHDRAW AS COUNSEL FOR

DEFENDANTS JACK DURAN, JR.

AND DONNA HOWARD

In light of the ongoing settlement discussions in this matter, the parties have stipulated to continue the hearings on plaintiff's motion for summary judgment and the Lewis-Reid Faction's motion for judgment on the pleadings, currently scheduled for July 11, 2014. Having considered the parties' stipulation, and good cause appearing, the hearing on those motions is hereby continued to Wednesday, September 17, 2014 at 10:00 a.m. in Courtroom 3.

In addition, Klinedinst PC has moved to withdraw as counsel in this matter for defendants Jack Duran, J. and Donna Howard for failure or refusal to pay attorney fees. No opposition to this motion has been received. Pursuant to Civil Local Rule 7-1(b), the motion is suitable for disposition without oral argument, and the hearing on this motion set for July 11, 2014 is vacated.

Under 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." The local rules further provide that if the client does not consent to the withdrawal and no substitution of counsel is filed, the motion to withdraw shall be granted on the condition that all papers from the court and from the opposing party shall continue to be served on that party's current counsel for forwarding purposes until the client appears by other counsel or pro se. Civ. L.R. 11-5(b).

Withdrawal is governed by the California Rules of Professional Conduct. See Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008). Rule 3-700(c) of the California Rules of Professional Conduct sets forth several grounds under which an attorney may request permission to withdraw, including if the client breaches an agreement or obligation to its counsel as to expenses or fees. R. 3-700(C)(1)(f). The court has discretion to deny a motion to withdraw "where such withdrawal would work an injustice or cause undue delay in the proceeding." Gong v. City of Alameda, No. 03-05495 TEH, 2008 WL 160964, at *1 (N.D. Cal. Jan. 8, 2008) (citing Mandel v. Superior Court, 67 Cal.App.3d 1, 4 (1977)) (holding there was no prejudice or undue delay to client where counsel provided sufficient notice of its intent to withdraw and where no trial date had yet been set in the case).

As explained in a declaration submitted in support of its motion to withdraw, Klinedinst was retained in October 2013 by the Lewis Faction of the Picayune Rancheria of Chukchansi Indians to represent Jack Duran, Jr. and Donna Howard in this matter. Duran was sued in his purported official capacity as judge for the Tribal Court constituted by the Lewis Faction, while Howard was sued in her purported official capacity as the clerk of that tribunal. The firm has not received any compensation for its services since that time, due in part to an interpleader action that has frozen funds belonging to the Tribe. Nevertheless, the firm has continued to represent Duran and Howard throughout this proceeding, including the most recent motions for summary judgment and judgment on the pleadings. The firm communicated with its clients on multiple occasions regarding payment; finally, on June 2, 2014, the firm gave official notice to its clients of its intent to withdraw. The two pending motions have been fully briefed, with Duran and Howard joining in full the briefs submitted by the Lewis-Reid Faction. Although additional events have been calendared in this matter, including further settlement discussions in August and a hearing on the two pending motions in September, it does not appear that granting the motion to withdraw would prejudice Duran and Howard or delay proceedings in this matter.

Good cause appearing, the motion to withdraw is granted, subject to the condition that Klinedinst PC shall continue to accept service of papers on behalf of Duran and Howard for forwarding purposes until they appear by other counsel or pro se. Counsel is instructed to notify Duran and Howard of this condition.

IT IS SO ORDERED.

__________


RICHARD SEEBORG


UNITED STATES DISTRICT JUDGE