United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JONATHAN BISSOON-DATH and

JENNIFER B. DATH a.k.a. JENNIFER

BARRETTE-HERZOG,

Plaintiffs,

 v.

SONY COMPUTER ENTERTAINMENT

AMERICA, INC., DAVID JAFFE, and DOES

1 THROUGH 100, inclusive,

Defendants. /

No. C 08-1235 MHP

ORDER

Re: Motion to Withdraw 

 

Plaintiffs’ counsel, Bullivant Houser Bailey PC (“BHB”), seeks to withdraw from this action,

citing irreconcilable differences with the plaintiffs. Docket No. 163 (Motion). Specifically, counsel

claims that plaintiffs have on numerous occasions declined the follow the advice of counsel, and that

the attorney-client relationship has irretrievably broken down. See Cal. R. Prof. Conduct

3-700(C)(1)(d) (allowing withdrawal where it would be unreasonably difficult to continue

representation). Plaintiff Jonathan Bissoon-Dath, who is a member in good standing of the State Bar

of California, opposes the motion. Docket No. 166 (Declaration). Bissoon-Dath claims that his

attorneys made a number of mistakes in prosecuting this action, and that he has serious ethical

concerns about counsel’s representation. Id. The tenor of the declaration demonstrates that the

attorney-client relationship has in fact been irretrievably compromised. This militates in favor of

granting the motion. Indeed, the Ninth Circuit has already allowed plaintiffs’ counsel to withdraw

from the appeal associated with this action. Docket No. 168 (Florence Reply Dec.) ¶ 4.

Case 3:08-cv-01235-SC Document 170 Filed 08/13/10 Page 1 of 2
United States District Court

For the Northern District of California

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Counsel also claims that its engagement with plaintiffs was not intended to include appeal. 

Bissoon-Dath claims that his attorneys agreed, in writing, that the engagement included

representation through appeal; however, he neglected to provide the court with the engagement

letter, which appears to be a contingency-fee agreement. A decision regarding appeal is unlikely to

have been made prior to the conclusion of the trial court proceedings; consequently, plaintiffs’

characterization of the scope of the engagement is not credible. Even if the engagement letter

included representation during plaintiffs’ appeal, the court will not force counsel to represent

plaintiffs in light of irreconcilable differences between plaintiffs and their counsel. If plaintiffs are

correct, and counsel would be in breach of their contractual obligations regarding representation,

plaintiffs may well have claims against BHB based on this withdrawal.

Finally, Bissoon-Dath also claims that the district court representation, for which BHB was

retained, have not reached their natural conclusion, as defendants may renew their motion for

attorneys’ fees upon conclusion of appellate proceedings. While defendants may renew their

motion, the attorneys’ fees motion is fully briefed. The costs associated with the district court

proceedings have already been incurred; consequently, renewal of the motion is unlikely to require

further briefing. Plaintiffs’ opposition to the motion for attorneys’ fees will therefore not be

prejudiced by the withdrawal.

For the foregoing reasons, BHB’s motion to withdraw is GRANTED. BHB is ORDERED to

cooperate with plaintiffs to effectuate the return of plaintiffs’ case file to plaintiffs.

IT IS SO ORDERED.

Dated: August 13, 2010 

MARILYN HALL PATEL

United States District Court Judge

Northern District of California

Case 3:08-cv-01235-SC Document 170 Filed 08/13/10 Page 2 of 2