Hernandez-Garcia v. Dana

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ENGRACIA HERNANDEZ-GARCIA, Case No.: 21-cv-1673-JAH-DDL 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. WITHDRAW AS COUNSEL 14 ISAAC PENHOS DANA, ESTER [Dkt. No. 71] SUTTON DE SACAL, SAMUEL 15 PENHOS, ALICIA SACAL DE 16 PENHOS, 17 Defendants. 18 19 I. 20 BACKGROUND 21 On February 17, 2023, the law firm Pettit Kohn Ingrassia Lutz & Dolin PC (“Firm”) 22 and its attorneys, Jennifer N. Lutz and Christine Y. Dixon (collectively, “Defense 23 Counsel”), filed a motion to withdraw as counsel of record (“Motion”) for Defendants Isaac 24 Penhos Dana, Esther Sutton de Sacal, Samuel Penhos, and Alice Sacal (“Defendants”).1 25 26 27 1 Defense Counsel note in the Motion that Esther Sutton de Sacal and Alice Sacal were erroneously sued as “Ester Sutton de Sacal” and “Alicia Sacal de Penhos,” 28 1 Dkt. No. 71. Defense Counsel state that withdrawal as counsel is necessary because 2 Defendants breached the terms of their agreement with the Firm by failing to pay the Firm’s 3 invoices, resulting in a breakdown of the attorney-client relationship. Id. at 6, Decl. of 4 Christine Y. Dixon ¶¶ 2-3. As set forth below, the Court GRANTS the motion. 5 II. 6 LEGAL STANDARD 7 “An attorney may not withdraw as counsel except by leave of court.” Lopez v. 8 Global Bus. Consultants., No. 20-cv-1281-AJB (LL), 2021 WL 148064, at *1 (S.D. Cal 9 Jan. 15, 2021) (citing Darby v. City of Torrance, 810 F. Supp. 275, 276 (C.D. Cal. 1992)). 10 A motion for leave to withdraw as counsel must be supported by a showing of “good 11 cause.” Lopez, 2021 WL 148064, at *1. Courts consider the following when determining 12 whether good cause exists: “(1) the reasons why withdrawal is sought; (2) the prejudice 13 withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the 14 administration of justice; and (4) the degree to which withdrawal will delay the resolution 15 of the case.” Id. (citing Beard v. Shuttermart of Cal., Inc., No. 07-cv-594 WQH (NLS), 16 2008 WL 410694, at *2 (S.D. Cal. Feb. 13, 2008)) (internal quotation marks omitted). 17 Civil Local Rule 83.3.f.3 requires that the motion to withdraw as counsel be served 18 on the opposing party and on the moving attorney’s client, and that a declaration regarding 19 such service be filed with the motion. Additionally, under Civil Local Rule 83.3.j, “[o]nly 20 natural persons representing their individual interests in propria persona may appear in 21 court without representation by an attorney. . . .” 22 Courts have held that failure to pay fees for legal services rendered may be 23 sufficient grounds for withdrawal. See Inigo v. Express Movers, Inc., No. 3:18-cv-02844- 24 BEN-LL, 2020 WL 8838166, at *2 (S.D. Cal. June 24, 2020) (citing Leatt Corp. v. 25 Innovative Safety Technology, LLC, No. 09–CV–1301–IEG (POR), 2010 WL 444708, at 26 *2 (S.D. Cal. Feb. 2, 2010)). Additionally, the California Rules of Professional Conduct 27 permit a lawyer to withdraw from representing a client if the client breaches a material 28 term of an agreement with the lawyer relating to the representation, and the lawyer has 1 given the client a reasonable warning after the breach that she will withdraw unless the 2 client complies with the agreement. Cal. Rules of Pro. Conduct r. 1.16(b)(5) (Cal. State 3 Bar 2020). Courts have also held that “there is no danger of prejudice where a case is still 4 in its infancy, there are no immediately scheduled hearings, and the opposing party receives 5 notice of counsel’s intent to withdraw.” Meggs v. 1250 North SD, LLC, No. 3:19-cv-1720- 6 GPC-BGS, 2020 WL 819011, at *1 (S.D. Cal. Feb. 19, 2020) (quoting Gurvey v. Legend 7 Films, Inc., No. 09-CV-942-IEG, 2010 WL 2756944, at *1 (S.D. Cal. July 12, 2010)) 8 (internal quotation marks omitted). 9 III. 10 DISCUSSION 11 Here, Defense Counsel have sufficiently established good cause to permit 12 withdrawal of their representation and complied with all notice requirements. Defense 13 Counsel represent that Defendants breached a material term of their agreement with the 14 Firm by failing to pay the Firm’s invoices since April 2022. See Dkt. No. 71 at 6, ¶¶ 2-3. 15 This is a valid reason to withdraw as counsel. See Inigo, 2020 WL 8838166, at *2. Having 16 attempted to collect on the outstanding invoices on multiple occasions, and in compliance 17 with the California Rules of Professional Conduct, Defense Counsel warned Defendants 18 via email on December 5, 2022 that “failure to pay could result in Pettit Kohn withdrawing 19 as counsel in this action.” See id. ¶¶ 4-5. On February 13, 2023, Defense Counsel provided 20 further notice to Defendants of their intent to file the instant Motion. See id. ¶ 7. Defense 21 Counsel have also complied with this District’s Local Rules by serving the Motion on 22 Defendants and on opposing counsel. Id. at 7, ¶ 8; see id. at 9. 23 Additionally, granting the Motion would not be prejudicial to Defendants. Defense 24 Counsel put Defendants on notice of the possible withdrawal more than two months before 25 Defense Counsel filed this Motion, and Defendants could have consulted new counsel 26 during this time. See id. at 6, ¶ 5. Furthermore, while the Court acknowledges that granting 27 the Motion would leave Defendants Isaac Penhos Dana and Esther Sutton de Sacal without 28 / / / 1 representation, it appears that prejudice to them will be minimal because the fact discovery 2 cut-off will not run until March 27, 2023.2 3 No other parties have opposed the Motion, which suggests that there would be 4 minimal prejudice, if any, to the other litigants. Id. at 7, ¶ 9. Moreover, the Court finds 5 that granting the Motion would not affect the administration of justice. With respect to 6 possible delays, the Court notes that a Status Conference is set for March 8, 2023, and as 7 noted above, fact discovery closes on March 27, 2023. As discussed above, Defendants 8 had sufficient notice of Defense Counsel’s possible withdrawal to secure new counsel such 9 that current dates and deadlines would not be affected. At this time, all pre-trial dates and 10 deadlines set forth in the Scheduling Order at Dkt. No. 55 will remain in effect. The Court 11 will not stay any dates or deadlines while Defendants Isaac Penhos Dana and Esther Sutton 12 de Sacal search for new counsel. Any requests for continuances will only be granted upon 13 a showing of good cause. Accordingly, no immediate delay will result from granting the 14 Motion. 15 IV. 16 CONCLUSION 17 For the foregoing reasons, the Court hereby ORDERS as follows: 18 1. Good cause appearing, the Motion to withdraw as counsel for Defendants is 19 GRANTED. Pettit Kohn Ingrassia Lutz & Dolin PC and attorneys Jennifer 20 N. Lutz and Christine Y. Dixon are hereby terminated as counsel of record for 21 all Defendants. 22 2. Any new counsel for Defendants Isaac Penhos Dana and Esther Sutton de 23 Sacal must make an appearance in the case on or before March 14, 2023. 24 25 26 2 Defendants Samuel Penhos and Alice Sacal continue to be represented by attorneys 27 at Lewis Brisbois Bisgaard & Smith LLP. Accordingly, the Court only addresses whether granting the Motion would be prejudicial to Defendants Isaac Penhos Dana and Esther 28 1 Failure to comply with this Order will result in substitution of Defendants 2 Isaac Penhos Dana and Esther Sutton de Sacal in propria persona. 3 3. All dates and deadlines set forth in the Scheduling Order at Dkt. No. 55 remain 4 unchanged and in effect. 5 4. The Clerk of Court is directed to serve a copy of this Order on Defendants 6 Isaac Penhos Dana and Esther Sutton de Sacal as follows: 7 Isaac Penhos Dana g 16047 Collins Ave. #3302 Sunny Isles Beach, FL 33160 Esther Sutton de Sacal . 1820 Avenida Del Mundo, Unit 1107 11 Coronado, CA 92118 IT IS SO ORDERED. 13 Dated: February 28, 2023 14 15 Lh 16 Toi! pee“ 17 Honorable David D. Leshner 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28