Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 NICHOLE KARD, Case No.: 3:23-cv-1780-W-DEB 14 Plaintiff, ORDER GRANTING ATTORNEY’S 15 v. MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFF 16 GMAC MORTGAGE, LLC; REAL TIME RESOLUTIONS; RRA CP 17 [Doc. 17] OPPORTUNITY TRUST 2; ZBS LAW 18 LLP; DOES 1-100, 19 Defendants. 20 21 Pending before the Court is Brian C. Andrews, Esq.’s (“Attorney’s”) motion to 22 withdraw as attorney of record for Plaintiff Nichole Kard (the “Motion”). The Court 23 decides the matter on the papers submitted and without oral argument. See Civ. L.R. 24 7.1(d)(1). For the reasons set forth below, the Court GRANTS the motion [Doc. 17]. 25 26 I. FACTUAL BACKGROUND 27 On June 6, 2023, Plaintiff commenced a civil action in the Superior Court of 28 California against Defendants GMAC Mortgage, LLC, Real Time Resolutions (“RTR”), 1 RRA CP Opportunity Trust 2 (“RRA”), ZBS Law LLP, and Doe Defendants. Plaintiff 2 sought a permanent injunction against the foreclosure of real property located at 4118 3 Georgia Street, San Diego, California (the “Property”). Kard. v. GMAC Mortgage LLC, 4 No. 37-2023-00023630. The Superior Court ordered on stipulation of the parties the 5 permissible sale of the Property, Plaintiff’s payment under protest to RRA of 6 $287,463.94 (the “Pay-Off Amount”) at the close of escrow, and Plaintiff’s right to 7 proceed against Defendants on all of her claims regarding the second note/lien despite the 8 payment. (Order on Stipulation [Doc. 8-3 at 7].) 9 On September 27, 2023, Defendants RTR and RRA removed based on diversity 10 jurisdiction. 28 U.S.C. § 1332. On July 10, 2024, Defendants RTR and RRA filed a 11 Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Plaintiff’s Complaint. On 12 July 15, 2024, Attorney filed this Motion, citing a breakdown in communication between 13 Plaintiff and Attorney such that effective representation is not possible. Attorney also 14 declared that “Plaintiff is no longer responsive to Counsel;” “Plaintiff will be denied 15 representation with regard to upcoming 12(b)(6) motion;” “Plaintiff needs to find new 16 counsel, given her decision to refuse to respond or work with [Attorney’s solo 17 practitioner firm].” (Andrews Decl. [Doc. 17-1] at ¶¶ 3–6.) Attorney also argues, 18 without supporting facts in his declaration, that he has not been paid for work already 19 completed on behalf of Plaintiff. (Motion at 3.) 20 21 II. DISCUSSION 22 An attorney may not withdraw as counsel except by leave of court. Darby v. City 23 of Torrance, 810 F. Supp. 275, 276 (C.D.Cal.1992); Civ. L.R. 83.3(f)(3). “The grant or 24 denial of an attorney’s motion to withdraw in a civil case is a matter addressed to the 25 discretion of the trial court . . . .” Washington v. Sherwin Real Estate, Inc., 694 F.2d 26 1081, 1087 (7th Cir. 1982). Factors considered in evaluating the Motion are “1) the 27 reasons why withdrawal is sought; 2) the prejudice withdrawal may cause to other 28 litigants; 3) the harm withdrawal might cause to the administration of justice; and 4) the 1 degree to which withdrawal will delay the resolution of the case.” CE Resource, Inc. v. 2 Magellan Group, LLC, 2009 WL 3367489, at *2 (E.D. Cal. 2009) (citing Canandaigua 3 Wine Co., Inc. v. Moldauer, 2009 WL 89141, at *1 (E.D. Cal. 2009)). 4 Withdrawal of counsel is governed by the standards of professional conduct 5 required of members of the State Bar of California. See Nehad v. Mukasey, 535 F.3d 6 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to attorney 7 withdrawal). Under Rule 1.16(d), an attorney “shall not terminate the representation until 8 the lawyer has taken reasonable[] steps to avoid reasonably[] foreseeable prejudice to the 9 rights of the client, such as giving the client sufficient notice to permit the client to retain 10 other counsel . . . .” California Rule of Professional Conduct 1.16(d) (punctuation 11 omitted). Also, Civ. L.R. 83.3(f)(3) states an attorney’s motion to withdraw “must be 12 served” “on the moving attorney’s client” and the motion must be accompanied by a 13 “declaration pertaining to such service.” Attorney’s Motion and Amended Proof of 14 Service [Doc. 18] demonstrate that his client was served at two e-mail addresses, despite 15 the fact that the Amended Proof of Service shows a mailing address for Plaintiff that all 16 parties agree could no longer be valid for Plaintiff because it is the same property that the 17 parties all agree was sold to a third party. (See Notice of Removal [Doc. 1] at ¶ 4; 18 Stipulation [Doc. 8-3 at 2–5] (signed by Plaintiff herself, Plaintiff’s Attorney, and 19 Attorney for RTR and RRA); Order of Superior Court on Stipulation [Doc. 8-3 at 6–7].) 20 Attorney’s motion to withdraw as counsel indicates Plaintiff will no longer respond 21 to Attorney, cooperate with him, pay him, or follow his advice. The Court also considers 22 that withdrawal of counsel at this time will permit Plaintiff an opportunity to identify new 23 counsel of record to represent her in response to the pending Rule 12(b)(6) motion to 24 dismiss. Plaintiff has not opposed the motion to withdraw, and therefore does not dispute 25 that there has been a complete breakdown of the attorney-client relationship. The Court 26 considers the absence of Plaintiff’s acknowledged receipt of the Motion or the pending 27 motion to dismiss her complaint. To prevent prejudice to Plaintiff’s claims, the Court 28 provides additional time for Plaintiff to find new counsel (or indicate that she will | ||represent herself pro se) and to respond to the pending motion to dismiss. Also, opposing 2 || counsel does not object to the withdrawal. (Andrews Decl. [Doc. 17-1] at § 8.) Finally, 3 reviewing the entirety of the case, the Court finds that counsel’s withdrawal will not 4 delay the case’s resolution. 5 6 CONCLUSION & ORDER 7 For all the reasons set forth above, the Court GRANTS Attorney’s motion to 8 || withdraw as attorney of record for Plaintiff [Doc. 17]. Attorney is ORDERED to serve 9 || this Order on Plaintiff by e-mail, as indicated in the Amended Proof of Service, and also 10 || by mail to any updated mailing address for Plaintiff that Attorney may have. On or 11 before August 13, 2024, Attorney shall file a notice with this Court listing Plaintiffs e- 12 || mail address(es) and any updated mailing address(es) for service of process. 13 On or before September 3, 2024, Plaintiff is ORDERED to file with this Court 14 a notice of intention to proceed pro se (that is, a notice of Plaintiff's intention to 15 || proceed without counsel), (2) a notice of appearance by new counsel on Plaintiff's behalf, 16 || or (3) a notice that Plaintiff is seeking new counsel and requires additional time for a 17 || specified reason requiring more time than the Court has given by this Order. 18 The hearing date on the pending motion to dismiss is continued until October 7, 19 ||2024. Under Civil Local Rule 7.1(d)(1), there shall be no oral argument or personal 20 || appearances unless subsequently ordered by the Court. 21 IT IS SO ORDERED. 22 ||Dated: August 5, 2024 \ °3 pe InLor 24 Hn. 7 omas J. Whelan 25 Unted States District Judge 26 27 28