Opposition to Counsel Lapcevic's Motion to Withdraw - CII ...€¦ · Special appearance in propria persona to oppose counsel's motion to withdraw . ... There is no good cause for

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Gene Forte 1312 Sierra Creek Ct Patterson, California, 95363 Telephone: (209) 894-5040 Email: [email protected]

Special appearance in propria persona to oppose counsel's motion to withdraw

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

EUGENE E. FORTE; EILEEN FORTE; GABRIELLE FORTE; JORDAN FORTE; NOEL FORTE; JUSTON FORTE,

Plaintiffs,

vs.

HYATT SUMMERFIELD SUITES, PLEASANTON; ANA VILLA, individually and as employee of HYATT SUMMERFIELD SUITES PLEASANTON; PLEASANTON POLICE DEPARTMENT; OFFICER JERRY NICELEY, individually and in his official capacity; OFFICER MARDENE LASHLEY, individually and inher official capacity; OFFICER MARTENS, individually and in his official capacity; and DOES 1 through 25, inclusive,

Defendants.

Case No. CII-02568 DMR

OPPOSITION TO COUNSEL LAPCEVIC'S MOTION TO WITHDRAW; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Date: August 11,2011 Time: 11 :00 a.m. Judge: Han. Donna M. Ryu

Opposition to Counsel Lapcevic's Motion to Withdraw - CII-02568 DMR 1

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Gene Forte 1312 Sierra Creek Ct Patterson, California, 95363 Telephone: (209) 894-5040 Email: [email protected]

JUL 7 7 2011




OAKLAND DIVISION

EUGENE E. FORTE; EILEEN FORTE; GABRIELLE FORTE; JORDAN FORTE; NOEL FORTE; JUSTON FORTE,

Plaintiffs,

vs.

HYATT SUMMERFIELD SUITES, PLEASANTON; ANA VILLA, individually and as employee of HYATT SUMMERFIELD SUITES PLEASANTON; PLEASANTON POLICE DEPARTMENT; OFFICER JERRY NICELEY, individually and in his official capacity; OFFICER MARDENE LASHLEY, individually and inher official capacity; OFFICER MARTENS, individually and in his official capacity; and DOES 1 through 25, inclusive,

Defendants.

Case No. C11-02568 DMR

DECLARATION OF EUGENE FORTE IN OPPOSITION TO COUNSEL LAPCEVIC'S MOTION TO WITHDRAW

Date: August 11,2011 Time: 11 :00 a.m. Judge: Hon. Donna M. Ryu

DECLARATION OF EUGENE FORTE

I, Eugene Forte, declare the following:

Declaration of Eugene Forte in Opposition to Counsel Lapcevic's Motion to Withdraw - CII-02568 DMR 1

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Gene Forte 1312 Sierra Creek Ct r- I L.. i Patterson, California, 95363 Telephone: (209) 894-5040 Email: [email protected]

Jl' l.. 7 7 ZO"




OAKLA D DIVISION

EUGENE E. FORTE; EILEEN FORTE; Case No. CII-02568 DMR GABRIELLE FORTE; JORDAN FORTE; NOEL FORTE; JUSTON FORTE,

PROOF OF SERVICE Plaintiffs,

vs.

HYATT SUMMERFIELD SUITES, Date: August 11, 2011 PLEASANTON; ANA VILLA, individually Time: 11 :00 a.m. and as employee of HYATT SUMMERFIELD

SUITES PLEASANTON; PLEASANTON Judge: Hon. Donna M. Ryu POLICE DEPARTMENT; OFFICER JERRY NICELEY, individually and in his official capacity; OFFICER MARDENE LASHLEY, individually and inher official capacity; OFFICER MARTENS, individually and in his official capacity; and DOES 1 through 25, inclusive,

Defendants.

Proof of Service of Opposition to Counsel Lapcevic's Motion to Withdraw - CII-02568 DMR . 1

Opposition to Counsel Lapcevic’s Motion to Withdraw – C11-02568 DMR

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TABLE OF CONTENTS

Page

I. STATEMENT OF ISSUES . . . . . . . . . . . . 2

II. STATEMENT OF RELEVANT FACTS . . . . . . . 4

III. MEMORANDUM OF POINTS AND AUTHORITIES . . . 6

A. ARGUMENT . . . . . . . . . . . . . . 6

B. POINTS AND AUTHORITIES . . . . . . . . 9

a. This is not a mandatory withdrawal . . . . 9

b. There is no good cause for permissive withdrawal 9

c. Rules governing conflicts or adverse interests . . 11

IV. SUMMARY . . . . . . . . . . . . . . . . . 12

V. CONCLUSION: THE REAL FLY IN THE OINTMENT . . 13


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TABLE OF AUTHORITIES

Page

California Rules of Professional Conduct Rule 3-310 11

California Rules of Professional Conduct, Rule 3-700(B) 9

California Rules of Professional Conduct Rule 3-700(C) 9

Federal Rules of Civil Procedure Rule 4(m) 12

Northern District Court of California, Local Rule 11-5(a) 9

Northern District’s Civil Rules 11-6, on Discipline 13


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Gene Forte 1312 Sierra Creek Ct Patterson, California, 95363 Telephone: (209) 894-5040 Email: [email protected] Special appearance in propria persona to oppose counsel’s motion to withdraw



OAKLAND DIVISION

EUGENE E. FORTE; EILEEN FORTE; Case No. C11-02568 DMR GABRIELLE FORTE; JORDAN FORTE; NOEL FORTE; JUSTON FORTE, Plaintiffs, vs. HYATT SUMMERFIELD SUITES, PLEASANTON; ANA VILLA, individually and as employee of HYATT SUMMERFIELD SUITES PLEASANTON; PLEASANTON POLICE DEPARTMENT; OFFICER JERRY NICELEY, individually and in his official capacity; OFFICER MARDENE LASHLEY, individually and inher official capacity; OFFICER MARTENS, individually and in his official capacity; and DOES 1 through 25, inclusive, Defendants.

OPPOSITION TO COUNSEL

LAPCEVIC’S MOTION TO

WITHDRAW; MEMORANDUM OF

POINTS AND AUTHORITIES IN

SUPPORT THEREOF

Date: August 11, 2011

Time: 11:00 a.m.

Judge: Hon. Donna M. Ryu


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This opposition and objection to Plaintiff’s counsel, Mr. Lapcevic’s, Motion to Withdraw as

Counsel is being provided by a special appearance in pro persona by Plaintiff Eugene Forte.

I.

STATEMENT OF THE ISSUES

Mr. Lapcevic moves for withdrawal based on the following grounds and allegations:

1. Plaintiff Eugene Forte (hereinafter “Forte”) filed a complaint in the U.S. District Court,

Eastern District, naming the same defendants alleging causes of actions which arose out of

the same occurrence as this subject complaint. Lapcevich says that he gained such

information from opposing counsel Louis Leone on May 11th

, 2011.

2. Forte went against Mr. Lapcevic’s advice in filing such Eastern District complaint.

3. Mr. Lapcevic discovered the filing of Forte’s Eastern District complaint on May 11th

, 2011

during a conversation with opposing counsel Louis Leone, after Lapcevic’s filing of the

subject complaint on March 4th

, 2011, and the service of the subject complaint on April 28th

,

that the Pleasanton defendants are part of an “excess pooling authority” which retains his

law firm on various cases for other municipalities.

4. Mr. Lapcevic claims that Forte’s filing of his Eastern District complaint caused a breakdown

of the attorney-client relationship beyond repair.

Forte submits that a gross misunderstanding has occurred on the part of Mr. Lapcevic, either

through his communications with defendants counsel or Forte, and the facts as Mr. Lapcevic has

described are inaccurate and/or incomplete. In response to Mr. Lapcevic’s grounds for withdrawal,

Forte submits the following:

1. On February 24th

, 2011, prior to this subject complaint being filed and served, Forte filed his

Eastern District complaint naming the Hyatt and Pleasanton Police Department defendants

for causes of actions arising from the same occurrence due to Mr. Lapcevic not committing

that he was going to file such action against such defendants as part of a 1983 cause of

action. Forte filed such complaint so as not to blow the statute of limitation for filing such


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action against such defendants and the Merced County agencies that Mr. Lapcevic somehow

represents at times via an insurance pool.

2. Mr. Lapcevic, after filing the subject complaint on March 4th

, 2011, told Forte that he was

going to be amending the subject complaint to better plead the 1983 cause of action prior to

it being served to make it more difficult to be demurred to. Mr. Lapcevic informed Forte

that he was taking a seminar to understand how to do such in late March 2011 which would

enable him to do so prior to serving the complaint on the defendants within the time

limitation for service. (See Decl. of Forte, ¶11).

3. On May 4th

, 2011 after Forte received confirmation that Mr. Lapcevic served the subject

un-amended complaint on the Hyatt and Pleasanton Police Department on April 28th

, 2011,

even though it had not been amended as Mr. Lapcevic planned on doing, Forte filed his First

Amended Complaint in the Eastern District removing the Hyatt and Pleasanton Police

Department seven days prior to Mr. Lapcevic’s being provided inaccurate information on

May 11th

, 2011 by opposing counsel Louis Leone that they were defendants in the Eastern

District complaint of Forte. (See Decl. of Forte, Ex. 1, 4, 6). They were in fact not

defendants at such time of the conversation between Mr. Lapcevic and Mr. Leone. Such

fact could be easily discerned by checking the status of the case on Pacer. Mr. Lapcevic had

informed Forte that it was opposing counsel Leone who had gained such initial information

that they were defendants from Pacer. Ergo, Mr. Leone was being disingenuous with Mr.

Lapcevic regarding the true status of the complaint in the Eastern District.

4. During June-July 2010, prior to entering into the legal representation agreement with Mr.

Lapcevic, Forte had discussed with Mr. Lapcevic in great detail his intended filing of the

Eastern District complaint and how the Hyatt and Pleasanton PD were conspirators with

several Merced County agencies and the City of Los Banos which would be named

defendants. Mr. Lapcevic at such time informed Forte that it was the decision of his

superiors at the law firm that they could not represent Forte in such potential case because

the City of Los Banos, one of the potential defendants, belonged to an insurance pool of


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municipalities that his firm provides coverage for, and derives over sixty percent of their

revenues from. (See Decl. of Forte, ¶4).

5. Mr. Lapcevic never told Forte that Forte could not file a lawsuit against the City of Los

Banos, or ever advised against the filing of such lawsuit in Eastern District Court by Forte.

Mr. Lapcevic in fact referred Forte to attorney Mr. Graham Lopez (#236077) in furtherance

of Forte pursuit of filing such action. Due to Mr. Lapcevic’s disclosure of his conflict,

Forte did not discuss the case with Mr. Lapcevic, and Mr. Lapcevic did not provide any

advice regarding such case to Forte.

6. Mr. Lapcevic said that he would have no problem or conflict in representing Forte against

the Pleasanton PD, or Hyatt, only that he could not file a case against the Los Banos Police

Department. Based upon such understanding Forte and Lapcevic entered into the

contingency fee legal representation agreement.

7. After Mr. Lapcevic provided a written disclosure of his potential conflict regarding the

Pleasanton defendants on or about May 17, 2011, and Forte has since provided an informed

written consent acknowledging Mr. Lapcevic’s disclosure and conflict. (See Decl. of Forte,

Exhibit 13)

8. There has been no breakdown of the attorney-client relationship other than Mr. Lapcevic

having possibly experience an unintentional embarrassment caused by his lack of

knowledge of the Eastern District complaint, which Forte submits, he shouldn’t feel

embarrassed for because he was not involved with it in any way, nor was he informed of

Forte’s actions in it.

II.

STATEMENT OF RELEVANT FACTS

On July 30, 2010, Forte signed a contingency retainer agreement with Mr. Lapcevic for Mr.

Lapcevic to represent him in a lawsuit concerning an incident that occurred on March 6, 2010 at the

Hyatt Summerfield Suites Pleasanton (hereinafter “Hyatt”). Upon initial discussion of the issues in

June - July of 2010 involving Merced County entities in other incidents, Mr. Lapcevic specifically


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told Forte that his law firm represented a pool of municipalities and would not be able to be

involved in representing Forte in a complaint against the City of Los Banos. However, he would be

able to represent the subject Hyatt/Pleasanton complaint because Pleasanton and their police

department were not a part of that pool in the event that they were named as defendants. (See Decl.

of Forte, ¶3, 4).

The statute of limitations for Forte’s claim against the City of Los Banos and other Merced

County officials was February 24, 2011, and the statute of limitations against the Hyatt and

Pleasanton defendants was March 6, 2011. Forte searched for an attorney to represent him against

the City of Los Banos and other Merced County officials but was unable to find one despite

meeting with an attorney for several hours that Mr. Lapcevic himself had referred to Forte

specifically for such complaint. In his search for counsel for such complaint, Forte contacted and

spoke to other attorneys who also declined to represent Forte for various reasons. (See Decl. of

Forte, ¶5, 6, 7).

At all times, Mr. Lapcevic was unsure whether to file against the Pleasanton defendants for

violation of civil rights and include such cause of action in the complaint against the Hyatt. Forte

informed him that he believed that the 1983 Civil Rights violations cause of action should be

included, but that the final decision was Mr Lapcevic’s because he was the attorney, and he knew

best. At no time, did Mr. Lapcevic advise Forte not to file his lawsuit against the City of Los Banos

and Merced County. (See Decl. of Forte, ¶8, 9).

By the time Forte was required to write and file the complaint in the Eastern District court

against the City of Los Banos and Merced County on February 24, 2011, this subject complaint had

still not been filed. Because Forte never directed or insisted that Mr. Lapcevic file or not file

against any defendants for any cause of action, Forte had no surety that the Pleasanton defendants

would be named for a violation his civil rights. Mr. Lapcevic had been focused on the Hyatt

defendants. (See Decl. of Forte, ¶10, 11, 12).

In order to be prudent and preserve his right to sue the Pleasanton defendants for civil rights

violation even though it would be burdensome to do so, Forte included them into his Eastern


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District complaint, but did not serve any defendants until he knew that the subject complaint

included the Pleasanton defendants. After he realized that such had been done, Forte immediately

filed an amended complaint on May 4, 2011 removing the Hyatt and Pleasanton defendants from

the Eastern District complaint as named defendants. (See Decl. of Forte, ¶13, 14).

It was not until May 17, 2011 or thereabouts that Mr. Lapcevic discovered and notified

Forte of a potential conflict regarding the Pleasanton defendants. (See Decl. of Forte, ¶30).

III.

MEMORANDUM OF POINTS AND AUTHORITIES

A. ARGUMENT

Forte clarifies his position in opposition to this motion to withdraw as follows:

1. Although Forte filed the original complaint on February 24, 2011 in the Eastern District

naming the Pleasanton defendants prior to this subject complaint being filed, he did it only

as a precaution (and only as it regards himself, not other plaintiffs in this action) should Mr.

Lapcevic, for any reason, decide not to include them as defendants. (See Decl. of Forte,

¶15, 16).

2. At no time did Mr. Lapcevic advise Forte not to file this federal court action. In fact, Mr.

Lapcevic gave Forte the name of Graham Lopez, an attorney that Mr. Lapcevic thought may

be interested in taking the case. Forte did not seek advice on whether to include Pleasanton

defendants in his Eastern District complaint, therefore, Lapcevic had no knowledge of such

and could not have given advice to Forte regarding such. (See Decl. of Forte, ¶7, 9, 17).

3. As soon as this subject complaint was filed and served, Forte amended the Eastern District

complaint and removed the Pleasanton and Hyatt defendants as named defendants. (See

Decl. of Forte, ¶14, 31, 32, attached Exhibit of the First Amended Complaint filed on May

4, 2011).

4. It is certainly not Forte’s responsibility nor should he have to suffer prejudice to his case due

to an oversight on Mr. Lapcevic’s part regarding a potential conflict. Forte and the other

plaintiffs, which include his wife, his two college students, and his two minor children,


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Eileen, Gabrielle, Jordan, Noel, and Juston, respectively, cannot find another attorney to

step into this case. In addition, even though Forte has had some experience as a pro se

litigant, he does not have the resources to represent himself in this case as the other case is

already consuming his (and his wife’s time in helping him) as a pro se litigant. His college

children, even though they are 18 years old and older, cannot represent themselves due to

the requirements of their studies. His minor children, 15 and 13 years old, must be

represented by counsel by law. Therefore, Forte and other plaintiffs do not agree to

represent themselves in propria persona (See Decl. of Forte, ¶18, 19, 34-36).

5. Even though Forte was attempting to protect his own rights by naming defendants in the

Eastern District original complaint, he cannot protect his family members’ rights due to their

inability to represent themselves. (See Decl. of Forte, ¶37).

6. Forte understands that mistakes occur, that the potential conflict was not identified by Mr.

Lapcevic when it should have been, however, Forte has now been informed in writing, (see

Decl. of Forte, ¶18, 19, 39), that although Mr. Lapcevic is not handling another case directly

in conflict for the Pleasanton defendants, Pleasanton does belong to a pool of municipalities

covered by the insurance firm which hires Mr. Lapcevic’s firm’s, Arata, Swingle, Sodhi &

Van Egmond on various cases for other municipalities.

7. Forte believes in Mr. Lapcevic and that he will do his best for Forte according to the Rules

of Professional Conduct and the State Bar expectations of ethical conduct, and thereby

submitted an informed written consent of all plaintiff clients of Mr. Lapcevic to continue

representation. (See Decl. of Forte, ¶40, 41, 42).

8. Forte submits that the attorney-client relationship has not broken down, that he currently has

no ill will towards Mr. Lapcevic for overlooking a potential conflict (which actually is not a

direct conflict as defined by the California Rules of Professional Conduct Rule 3-310,

Avoiding the Representation of Adverse Interests), and that he has tried to explain that his

filing of the original Eastern District complaint, which was never served, was a safeguard to

be used if needed only after Mr. Lapcevic determined what his course of action was going to


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be regarding defendants and causes of action in this subject case. Forte never meant to

upset Mr. Lapcevic, and in fact, thought that once this subject complaint was filed and

served, and he amended his Eastern District complaint, that it would make no difference.

Forte has always respected Mr. Lapcevic in his role as Forte’s counsel, and did not want to

make any demands on what Mr. Lapcevic should include in the complaint. Forte gave Mr.

Lapcevic his opinion, but always was careful to clarify that Mr. Lapcevic was the attorney

and he was to do what he thought was best. (See Decl. of Forte, ¶43 - 46).

9. When Forte was informed of the discovery of the potential conflict, Forte asked Mr.

Lapcevic and told him to dismiss the Pleasanton defendants from this subject complaint

unless Mr. Lapcevic was aware of some gross prejudice to Forte. Mr. Lapcevic said he

could not dismiss them because it would prejudice the case. (See Decl. of Forte, ¶47).

10. Forte made attempts to communicate with Mr. Lapcevic and work out a resolution, there

was no arguing, anger, or “breakdown” of the attorney-client relationship. (See Decl. of

Forte, ¶20 – 28, and attached communications).

11. Forte is loathe to believe if Mr. Lapcevic continues to insist that he can no longer represent

plaintiffs in this matter, despite Forte’s written waiver of the potential conflict and

amendment of the Eastern District complaint removing all Hyatt and Pleasanton defendants,

that Mr. Lapcevic has intentionally created a “breakdown” of the supposed attorney-client

relationship. Forte does not want to believe that Mr. Lapecevic is withdrawing as a tactic on

behalf of the insurance company that represents a “pool” of municipalities his law firm may

be contracted to represent, which includes the City of Los Banos, in order to disrupt both

Forte’s cases (to help Mr. Lapcevic’s firm’s clients). Forte hopes this is not true, but

requests the court to adhere to the Civil Local Rules of 11-6, Discipline if this court finds it

must relieve Mr. Lapcevic based on an alleged breakdown of attorney-client relationship,

which Forte submits is manufactured on the part of Mr. Lapcevic, and constitutes unethical

conduct for an attorney.


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12. Forte objects to this motion to withdraw and submits that there is no valid legal reason for

Mr. Lapcevic to withdraw pursuant to California Rules of Professional Conduct, Rule 3-

700.

B. POINTS AND AUTHORITIES

Northern District Court of California, Local Rule 11-5 states:

“11-5. Withdrawal from Case.

(a) Order Permitting Withdrawal. Counsel may not withdraw from an

action until relieved by order of Court after written notice has been given reasonably

in advance to the client and to all other parties who have appeared in the case.

a. This is not a mandatory withdrawal.

Mandatory withdrawal is spelled out in the California Rules of Professional Conduct Rule 3-

700(B):

“(B) Mandatory Withdrawal.

A member representing a client before a tribunal shall withdraw from employment

with the permission of the tribunal, if required by its rules, and a member

representing a client in other matters shall withdraw from employment, if:

(1) The member knows or should know that the client is bringing an action,

conducting a defense, asserting a position in litigation, or taking an appeal, without

probable cause and for the purpose of harassing or maliciously injuring any person;

or

(2) The member knows or should know that continued employment will result in

violation of these rules or of the State Bar Act; or

(3) The member's mental or physical condition renders it unreasonably difficult to

carry out the employment effectively.”

None of these reasons apply. There is certainly probable cause for bringing the Eastern

Division complaint, and Mr. Lapcevic never said there was not.

b. There is no good cause for permissive withdrawal.

The California Rules of Professional Conduct, Rule 3-700(C):


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“(C) Permissive Withdrawal.

If rule 3-700(B) is not applicable, a member may not request permission to

withdraw in matters pending before a tribunal, and may not withdraw in other

matters, unless such request or such withdrawal is because:

(1) The client

(a) insists upon presenting a claim or defense that is not warranted under existing

law and cannot be supported by good faith argument for an extension,

modification, or reversal of existing law, or

(b) seeks to pursue an illegal course of conduct, or

(c) insists that the member pursue a course of conduct that is illegal or that is

prohibited under these rules or the State Bar Act, or

(d) by other conduct renders it unreasonably difficult for the member to carry out

the employment effectively, or

(e) insists, in a matter not pending before a tribunal, that the member engage in

conduct that is contrary to the judgment and advice of the member but not

prohibited under these rules or the State Bar Act, or

(f) breaches an agreement or obligation to the member as to expenses or fees.

(2) The continued employment is likely to result in a violation of these rules or of the

State Bar Act; or

(3) The inability to work with co-counsel indicates that the best interests of the client

likely will be served by withdrawal; or

(4) The member's mental or physical condition renders it difficult for the member to

carry out the employment effectively; or

(5) The client knowingly and freely assents to termination of the employment; or

(6) The member believes in good faith, in a proceeding pending before a tribunal,

that the tribunal will find the existence of other good cause for withdrawal.”

[Emphasis added]

None of the above apply. Forte acknowledges that it is possible that Mr. Lapcevic may

believe in good faith that this court will find that his discovery of a potential conflict is good cause

for withdrawal, however, he is incorrect that it is good cause for withdrawal if Forte and the other

plaintiffs provides an informed written consent to his representation after being provided with a

written disclosure by Mr. Lapcevic. Forte believes that even if other members of his law firm may

be handling or have handled cases for other municipalities in the same pool, Mr. Lapcevic is not

involved directly with those other cases, (which Mr. Lapcevic has not specified what they are) and


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Mr. Lapcevic will follow his ethical duties to provide his best services to Forte according to the

Rules of Professional Conduct and State Bar rules.

c. Rules governing conflicts or adverse interests.

The California Rules of Professional Conduct Rule 3-310 states:

“Rule 3-310 Avoiding the Representation of Adverse Interests

(A) For purposes of this rule:

(1) "Disclosure" means informing the client or former client of the relevant

circumstances and of the actual and reasonably foreseeable adverse consequences to the

client or former client;

(2) "Informed written consent" means the client's or former client's written agreement to

the representation following written disclosure;

(3) "Written" means any writing as defined in Evidence Code section 250.

(B) A member shall not accept or continue representation of a client without providing written

disclosure to the client …….

(C) A member shall not, without the informed written consent of each client…..:

(3) Represent a client in a matter and at the same time in a separate matter accept as a client

a person or entity whose interest in the first matter is adverse to the client in the first

matter.”

Mr. Lapcevic informed Forte in writing of the discovery of the potential conflict he has in

suing the Pleasanton defendants although he did not specify the actual and reasonably foreseeable

adverse consequences as mentioned in the rule 3-310(a)(1). Forte and other plaintiffs have

provided an informed written consent via email with the original letter to follow by mail.

Therefore, no violation of the Rules of Professional Conduct or of the State Bar Act will occur by

Mr. Lapcevic’s continued representation of plaintiffs in this lawsuit.

As to the City of Los Banos, a member of the same risk pool, being a defendant in Forte’s

Eastern District complaint, they are represented by James D. Emerson of the Emerson, Corey,

Sorensen, Church & Libke law firm in Fresno, California. (See Decl. of Forte, ¶50).


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IV.

SUMMARY

The original Eastern District complaint was never served upon the Pleasanton and Hyatt

defendants. The amended complaint removed the Pleasanton and Hyatt defendants, and all

defendants have been served by June 24, 2011, the deadline to serve the defendants pursuant to

Federal Rules of Civil Procedure Rule 4(m).

Mr. Lapcevic never provided any advice regarding the lawsuit filed by Forte in the Eastern

District Court which was filed solely by Eugene Forte, not the other plaintiffs herein. Mr. Lapcevic

was aware that Forte intended to file a complaint against the City of Los Banos, but informed Forte

he could not handle that case. Mr. Lapcevic in fact, recommended Mr. Graham Lopez for potential

legal counsel on the case against the City of Los Banos.

Forte has not been informed of any cases in which Mr. Lapcevic’s firm represents the

Pleasanton defendants in ongoing litigation. Mr. Lapcevic admits that even if Forte had not named

Pleasanton defendants in his Eastern District complaint, he still could not or would not represent

Forte in this complaint because of the potential conflict created by the recently discovered fact that

the Pleasanton defendants belong to a pool of municipalities that Mr. Lapcevic’s firm would

possibly represent in the event of actual litigation. (See Decl. of Forte, ¶48, 49).

Forte and the other plaintiffs have provided an informed written consent to Mr. Lapcevic so

that he may continue representing them in this subject litigation. Due to Forte’s conscious effort to

always respect Mr. Lapcevic’s decisions as his legal counsel and be cooperative, Forte did not

demand any action or non-action by Mr. Lapcevic. Forte allowed Mr. Lapcevic all decision making

power concerning this subject litigation. However, Mr. Lapcevic was not firm nor committal

regarding who was going to be named in the subject complaint, therefore Forte was not sure if the

Pleasanton defendants would be named. If Mr. Lapcevic had decided that not suing the Pleasanton

defendants was best, then Forte determined that he wanted to preserve that right as an option as well

as he could and include them in his other complaint, which is why he included them in the original

Eastern District complaint.


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Forte apologizes to Mr. Lapcevic for any unintentional embarrassment caused to Mr.

Lapcevic in front of opposing counsel due to the fact that Forte had not discuss the filing of the

Eastern District complaint with Mr. Lapcevic after Lapcevic had informed Forte that he could not

be involved with that case due to the City of Los Banos being a part of the pool of municipalities

his firm may represent. It was not intentional, but only done in an attempt to protect Forte’s rights

(although not the rest of his family’s rights) to pursue redress of a grievance against the Pleasanton

defendants in the event Mr. Lapcevic decided it would be best for this subject litigation to omit

them as defendants.

Forte and the other plaintiffs will be prejudiced if Mr. Lapcevic is allowed to withdraw.

Forte has not been able to find other counsel to substitute in, and his children would not be able to

represent themselves, nor have Forte represent them. (See Decl. of Forte, ¶38).

Forte submits that it is not reasonable good cause for Mr. Lapcevic to claim irreconcilable

differences based upon what has occurred here to be allowed to withdraw from this case. Forte

certainly does not want to accept or believe that there is an ulterior motive underlying the Arata,

Swingle, Sodhi & Van Egmond law firm in attempting to abandon plaintiffs herein under the guise

of a purported conflict in order for Forte’s adversaries and their insurer to gain an advantage.

If Mr. Lapcevic continues to claim irreconcilable differences, Forte submits that this is

unprofessional conduct and therefore, should this be the case, requests that this court adhere to the

Northern District’s Civil Rules 11-6, on Discipline.

V.

CONCLUSION: THE REAL FLY IN THE OINTMENT

Forte respectfully apologizes to the court for any repetitiveness in his papers but submits

that he is not an attorney and only wants to emphasize and articulate in as many ways possible to

convey to the court his position. Forte is no way feels there is a “breakdown of communication

with Mr. Lapcevic” that would require, or permit the court to grant Mr. Lapcevic’s withdrawal.

The communications from Forte to Mr. Lapcevic have always conveyed a willingness to discuss

this matter and resolve any issues.


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Forte should not be punished by the denial of legal representation afforded him in his

contract with Mr. Lapcevic by the Machiavellian machinations of the real fly in the ointment…the

insurance company providing the defense to the City of Los Banos and the Los Banos PD in the

Eastern District complaint that also controls major revenues going to Mr. Lapcevic’s firm. It is not

unreasonable to surmise that more than likely the insurance carrier is threatening Mr. Lapcevic and

his law firm that they will no longer receive income from them if they continue in their

representation of Forte.

Forte asserts that it is a stacking of the deck against Forte by the insurance provider who is

now defending the City of Los Banos and the Los Banos Police Department in the Eastern District

complaint. The motive of such is to cut off any income that may be generated by Forte from

damages in a meritorious suit against the Pleasanton PD and Hyatt. The insurance provider’s other

ulterior motive is to undermine Forte’s legal representation and anything which may come out in

the subject complaint that would be detrimental to the Los Banos Police Department they are

defending. Forte feels no ill will toward Mr. Lapcevic or his firm and feels that the insurance

carrier is basically extorting Lapcevic to throw Forte overboard for their benefit.

The court can put a stop to this by requiring Mr. Lapcevic and his firm to continue in their

representation of Forte and let the chips fall as they may for the insurance carrier. If Mr. Lapcevic

and his firm suffer financial repercussions from such, then they should take that up directly with

their insurance carrier.

Dated: July 8, 2011 Respectfully Submitted:

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Eugene Forte, In Propria Persona

Documents

Opposition to Counsel Lapcevic's Motion to Withdraw - CII ...€¦ · Special appearance in propria persona to oppose counsel's motion to withdraw . ... There is no good cause for