Santa Cerritos, Inc. v. Michael Penrod

[4] 5 O [7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] Case No.: 8:22-cv-00030-MEMF (ADSx) 11 SANTA CERRITOS, INC., et al., 12 Plaintiff, ORDER GRANTING MOTION TO WITHDRAW [ECF NO. 48] 13 v. [14] 15 MICHAEL PENROD, et al., Defendants. [19] 20 Before the Court is the Motion to Withdraw filed by counsel for Defendant Michael Penrod. 21 ECF No. 48. For the reasons stated herein, the Court GRANTS the Motion. 22 I. Background 23 A. Factual Background1 24 Plaintiffs Santa Cerritos, Inc., Santa Mix, Inc., and Saint Pedro, Inc. (collectively, “Santa 25 Cerritos Plaintiffs”) entered into an agreement with Icon Identity Solutions, Inc. (“Icon”) to 26 complete construction and design services of locations of Panini Kabob Grill. Compl. ¶¶ 5–7,13. [27] 28 1 The facts described below are taken from the factual allegations in the Complaint. ECF No. 1-1 1 Icon retained Defendants Michael Penrod (“Penrod”), owner of Defendant corporation CMC 2 Mechanical, LLC (collectively, “Defendants”) as subcontractors to complete the required work. Id. ¶ 3 14. Icon abandoned the project. Id. ¶ 15. As a result, in or around March 2021, Defendants entered 4 into an oral contract with the Santa Cerritos Plaintiffs to complete the project. Id. Despite the Santa 5 Cerritos Plaintiffs having paid $1,250,000 in compensation, Defendants have failed to complete the 6 required work. Id. ¶¶ 16, 17. 7 B. Procedural History 8 On January 7, 2022, the Santa Cerritos Plaintiffs filed a complaint against Defendants 9 alleging three causes of action: (1) breach of oral contract; (2) disgorgement of compensation; (3) 10 conversion. See generally Compl. 11 On March 14, 2023, Joseph O’Connor (“O’Connor”) of J.M. O’Connor Law Group, PLLC 12 filed the instant Motion to Withdraw as Counsel. ECF No. 48 (“Motion” or “Mot.”).2 On March 27, 13 2023, the Court issued an order requiring Durian to be present at the hearing. ECF No. 53. The Court 14 held a hearing on the Motion on May 4, 2023. 15 II. Discussion 16 Withdrawal of counsel is permitted under Rule 1.16 of the California Rules of Professional 17 Conduct where the client’s conduct makes it “unreasonably difficult” for an attorney to carry out 18 their duty of representation. Cal. R. Prof’l Conduct 1.16(b)(4). Moreover, “[t]he determination 19 whether to grant or deny an attorney’s motion to withdraw as counsel of record lies within the sound 20 discretion of the trial court,” after considering whether “withdrawal might work an injustice in the 21 handling of the case.” Lempert v. Superior Court, 5 Cal.Rptr.3d 700, 709 (2003). 22 Upon review of the Motion, the Court finds that counsel has provided good cause. 23 Specifically, O’Connor states that he has only been able to contact Penrod once over the past two 24 months and believes that Penrod is “avoid[ing] . . . emails and phone calls” with the goal of avoiding [26] 2 The Court notes that this Motion was initially filed as ECF No. 48. However, as the Motion at ECF No. 48 [27] included an incorrectly formatted Proposed Order, Defense counsel filed an amended Proposed Order under the event “Application of Joseph O'Connor to Withdraw as Attorney” at ECF No. 50. The Court solely relies [28] 1 the instant litigation. Mot. at 2; Declaration of Joseph O’Connor, ECF No. 48, (“O’Connor Decl.”) 2 ¶¶ 3–4. During the May 4 Hearing, O’Connor confirmed that he has been able to reach Penrod via 3 telephone only one time in the last several months, after the filing of his Motion to Withdraw. In that 4 conversation, he advised Penrod of the status of the litigation and the pending Motion to Withdraw 5 and confirmed his Bolivar, Ohio, address. O’Connor confirmed that he has since provided Penrod 6 with notice of the Motion and the May 4 Hearing via mail at the confirmed Bolivar, Ohio, address 7 which notices have not been returned as undeliverable. The Court finds that O’Connor has fully 8 complied with the California Rules of Professional Conduct as they relate to withdrawal of counsel. 9 Based on the facts presented at the hearing and the representations made in the Motion, the 10 Court finds withdrawal appropriate. 11 III. Conclusion 12 In light of the foregoing reasons, the Court hereby GRANTS the Motion for Leave to 13 Withdraw as Counsel and ORDERS as follows: 14 1. O’Connor shall comply with all of the requirements of the California Rules of Professional 15 Conduct with respect to this withdrawal; 16 2. O’Connor shall, to the extent consistent with the applicable California Rules of Professional 17 Conduct, direct Penrod to appropriate resources and guidance for obtaining new counsel; 18 3. O’Connor shall provide Penrod with notice of this Order via all means they have available 19 and must also file proof of service evidencing their service attempts (personal service is not 20 required); and 21 4. Penrod is directed to either obtain new counsel or elect to proceed pro se—that is, represent 22 himself. Penrod shall file a status report informing the Court of his decision no later than 23 thirty (30) days from the date of this Order; and 24 5. This action is hereby STAYED until further order of the Court. [28] 1 RESOURCES FOR SELF-REPRESENTED PARTIES [2] In the event that Penrod elects to proceed pro se, he is nonetheless required to comply with [3] Court orders, the Local Rules, and the Federal Rules of Civil Procedure. See C.D. Cal. L.R. 83-2.2.3. [4] The Local Rules are available on the Court’s website, http://www.cacd.uscourts.gov/court5 procedures/local-rules. [7] The Court cannot provide legal advice to any party, including pro se litigants, i.e., parties [8] who are not represented by a lawyer. There is a free “Pro Se Clinic” that can provide information [9] and guidance about many aspects of civil litigation in this Court. [10] 11  Public Counsel runs a free Federal Pro Se Clinic where pro se litigants can get information 12 and guidance. The Clinic is located at the Roybal Federal Building and Courthouse, 255 East 13 Temple Street, Los Angeles, CA 90012 (note that the clinic may not be open for in-person 14 appointments during the pandemic). Pro se litigants must call or submit an on-line 15 application to request services as follows: on-line applications can be submitted at 16 http://prose.cacd.uscourts.gov/los-angeles, or call (213) 385-2977, ext. 270. 17  Public Counsel also has extensive resources for pro se litigants at its website located at 18 https://publiccounsel.org/services/federal-court/. [19] The Court is also informed that the LA Law Library, located across the street from the First [20] Street Courthouse at 301 W. First Street, Los Angeles, CA 90012, also has extensive resources for [21] pro se litigants. The LA Law Library can be reached via email at reference@lalawlibrary.org, or via [22] telephone at (213) 785-2513. [23] 24 IT IS SO ORDERED. [25] 26 Dated: May 4, 2023 ___________________________________ 27 MAAME EWUSI-MENSAH FRIMPONG 28 United States District Judge