Sanchez v. Sanchez et al, No. 3:2010cv01628 - Document 148 (S.D. Cal. 2015)
Court Description: ORDER denying 145 MOTION to Withdraw as Attorney of Record. As provided herein, the motion by counsel for Plaintiff to withdraw is DENIED WITHOUT PREJUDICE. Signed by Magistrate Judge Mitchell D. Dembin on 8/13/15. (Dembin, Mitchell)
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Sanchez v. Sanchez et al Doc. 148 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ALBERT SANCHEZ, SR., Case No.: 10-cv-1628-GPC (MDD) Plaintiff, ORDER DENYING WITHOUT v. PREJUDICE MOTION OF PLAINTIFF'S ATTORNEYS TO ALBERT SANCHEZ, JR., et. al, WITHDRAW AND GRANTING IN Defendants. PART PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO FILE RESPONSIVE PLEADING 17 [ECF Nos. 145, 146] 18 19 Before the Court, on referral from the District Court, are the motions 20 of counsel for Plaintiff to withdraw (ECF No. 145) and Plaintiff’s motion for 21 an extension of time to file a responsive pleading regarding whether this 22 case should be dismissed on res judicata or collateral estoppel grounds. 23 (ECF No. 146). Both motions were filed on August 5, 2015. Defendants 24 have advised the Court that they will not file a responsive pleading to either 25 motion. 26 1 10-cv-1628-GPC (MDD) Dockets.Justia.com 1 Relevant Procedural History 2 The instant complaint was filed on August 4, 2010. (ECF No. 1). Plaintiff 3 subsequently filed two additional related lawsuits against the Defendants 4 in the Superior Court in San Diego County. The state cases proceeded to 5 trial. (Motion to Withdraw as Counsel, ECF No. 145-1 at 2). The issue of whether resolution of the state cases would present issues 6 7 of res judicata and collateral estoppel was first raised by the district court 8 at a status hearing on October 25, 2012. (ECF No. 124). The district court 9 ordered the matter to be briefed. Defendants’ brief was filed on October 2, 10 2012. (ECF No. 125). Plaintiff responded on November 13, 2012. (ECF No. 11 126). On November 15, 2012, at a status hearing, the district court called 12 for additional briefing on the issue. (ECF No. 128). Each party filed the 13 required supplemental briefing on December 7, 2012. (ECF Nos. 133, 134). 14 On December 21, 2012, the district court stayed proceedings in the instant 15 case pending final judgment in the parallel state court cases. (ECF No. 16 136). 17 On April 21, 2015, Defendants notified the district court that the state 18 proceedings had been concluded. (ECF No. 140). Defendants prevailed in 19 the state cases and the judgments were affirmed by the state appeals court. 20 (Id.). As a result, on May 14, 2015, the district court lifted the stay in the 21 instant case. (ECF No. 141). At a status hearing on May 22, 2015, the 22 district set a hearing date regarding whether the state court judgments 23 were preclusive in the instant case for August 28, 2015, and set a briefing 24 schedule. (ECF No. 143). Defendants brief was due and was timely filed on 25 July 24, 2015. (Id.; ECF No. 144). Plaintiff’s brief was due on August 7, 26 2015, and any reply by Defendants was due on August 14, 2015. (ECF 143). 2 10-cv-1628-GPC (MDD) 1 On August 5, 2015, counsel for Plaintiff filed the instant motions for 2 leave to withdraw as counsel and for an extension of time to file a 3 responsive pleading. (ECF Nos. 145, 146). Counsel for Plaintiff asserts that 4 an irreconcilable conflict has arisen because Defendants have filed a lawsuit 5 alleging malicious prosecution against Plaintiff and his attorneys in the 6 Superior Court. (ECF Nos. 145-1, 145-2, 146, 146-1). The lawsuit was filed 7 on July 16, 2015. (ECF No. 145-1). Plaintiff filed a declaration asserting 8 that his lawyers advised him that there is a conflict based upon the filing of 9 the malicious prosecution case and, consequently, intends to find new 10 11 counsel upon the withdrawal of current counsel. (ECF No. 146-1). As set forth below, the motion to withdraw as counsel is DENIED 12 WITHOUT PREJUDICE. The motion for an extension of time for Plaintiff 13 to file his responsive brief is GRANTED IN PART. 14 Legal Standard 15 “An attorney may not withdraw as counsel except by leave of court, 16 [citation omitted] and ‘the decision to withdraw as counsel is 17 committed to the discretion of the trial court.’ [citations omitted] In 18 ruling on a motion to withdraw as counsel, courts consider: (1) the 19 reasons why withdrawal is sought; (2) the prejudice withdrawal may 20 cause to other litigants; (3) the harm withdrawal might cause to the 21 administration of justice; and (4) the degree to which withdrawal will 22 delay the resolution of the case. [citations omitted]” 23 Beard v. Shuttermart of California, Inc., 2008 WL 410694 *2 (S.D. Cal., No. 24 07cv594-WQH, Feb. 13, 2008). 25 26 Analysis The Court agrees that Plaintiff and his attorneys are conflicted in the 3 10-cv-1628-GPC (MDD) 1 malicious prosecution case filed against them in Superior Court. The 2 question is whether, considering the current posture of the instant case, 3 that the conflict requires their immediate withdrawal from this case. The 4 Court believes not. 5 First, the issue pending before the district court is entirely legal – 6 whether the judgments obtained in the completed state court proceedings 7 have preclusive effect in the instant case. At this stage, it does not appear 8 that any privileged communications have any relevance. Moreover, neither 9 counsel nor Plaintiff himself has suggested that there has been a 10 breakdown in communications. 11 Second, the issue has been briefed twice, so far, by the parties. There 12 is not much new here. The Defendants’ brief, filed on July 24, 2015, is but 13 eight pages. (ECF No. 144). The issue involves parsing the state court 14 judgment and determining, as a matter of law, their preclusive effect or lack 15 thereof. 16 Third, the briefing schedule for this last round was set on May 22, 17 2015. Counsel for Plaintiff had nearly two months to prepare prior to the 18 filing of the malicious prosecution lawsuit on July 16, 2015.1 And, as 19 mentioned above, there is very little new here and Plaintiff’s responsive 20 pleading need tread no new ground other than providing Plaintiff’s view 21 regarding the parsing of the judgments. 22 Application of this factual predicate to the factors to be considered in 23 deciding whether to grant a motion to withdraw militates against granting 24 25 26 1 Counsel also provides no reason for the delay from that date until the filing of the instant motions on August 5, 2015. 4 10-cv-1628-GPC (MDD) 1 withdrawal at this time. First, the reason why withdrawal is sought is 2 legitimate; the filing of the malicious prosecution lawsuit does raise a 3 conflict. Second, the Court agrees that there is no demonstrated prejudice 4 to the Defendants, other than how long they have been in litigation with 5 Plaintiff in several courts. Third, the administration of justice will be 6 harmed by allowing for withdrawal at this time. The pending motion needs 7 a ruling and it may be case dispositive. There is no guarantee that Plaintiff 8 will be able to find a new lawyer. As it is, Plaintiff seeks 90 days for that 9 purpose. (ECF No. 146-1). This has all the earmarks of another lengthy 10 delay. And, fourth, there can be no doubt that granting withdrawal will 11 delay substantially the resolution of this case. 12 The Court finds that the harm to the administration of justice and the 13 substantial likelihood of additional, lengthy delay in resolving this motion 14 (and, potentially, this case), considering the circumstances, mitigates 15 against allowing the withdrawal of counsel for Plaintiff at this time. Should 16 this case survive the dismissal motion, however, Plaintiff may refile. 17 Inasmuch as the date by which Plaintiff’s responsive pleading passed 18 on August 7, 2015, approximately one week ago, Plaintiff is granted one 19 additional week, until close of business on August 20, 2015, to file his 20 responsive pleading. Defendants may reply, if they chose, no later than 21 close of business on August 25, 2015. The hearing date before District 22 Judge Gonzalo P. Curiel on August 28, 2015, at 1:30 p.m. is confirmed. 23 24 Conclusion The motion of counsel for Plaintiff to withdraw is DENIED 25 WITHOUT PREJUDICE. The motion may be refiled in the event that the 26 pending motion to dismiss is denied by the District Court. 5 10-cv-1628-GPC (MDD) 1 Plaintiff’s motion to extend the time to file a responsive pleading on 2 the issue of preclusion is GRANTED IN PART. Plaintiff’s brief is to be 3 filed no later than close of business on August 20, 2015. Defendants may 4 file a reply no later than close of business on August 25, 2015. The hearing 5 date of August 28, 2015, at 1:30 p.m., before District Judge Gonzalo P. 6 Curiel is confirmed, absent further Order of the Court. 7 IT IS SO ORDERED: 8 9 Dated: August 13, 2015 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6 10-cv-1628-GPC (MDD)
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