Judge Andrew E. Cooper, Case Number: 20STCV39389, Date: 2024-09-19 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

SEPTEMBER 18, 2024

RELIEF REQUESTED: An order disqualifying Vanderford & Ruiz, LLP and its partners and associates from representing Defendant in the instant action.

This action arises out of Plaintiff’s claim that on 2/3/12, when Plaintiff was a 10-year old student at Germain Elementary School in Los Angeles Unified School District (LAUSD), Plaintiff was sexually battered by Defendant, a buildings and grounds worker employed by LAUSD, during school hours.

On 5/11/21, Plaintiff filed the operative Second Amended Complaint (SAC), alleging against Defendant and LAUSD the following causes of action: (1) Sexual Battery; (2) Intentional Infliction of Emotional Distress; and (3) Negligence. On 12/1/21, the Court entered a judgment of dismissal in favor of LAUSD after sustaining its demurrer to Plaintiff’s third cause of action without leave to amend. On 10/6/22, the Court of Appeal affirmed the ruling.

On 6/26/24, Plaintiff filed the instant motion to disqualify Defendant’s counsel. On 9/6/24, Defendant filed his opposition. On 9/12/24, Plaintiff filed her reply.

“A lawyer shall not enter into an agreement for, charge, or accept compensation for representing a client from one other than the client unless: (a) there is no interference with the lawyer’s independent professional judgment or with the lawyer-client relationship.” (Cal. Rules Prof. Conduct, rule 1.8.6.) Here, Plaintiff asserts that Defendant’s counsel is being paid by LAUSD pursuant to an indemnification agreement. (Ex. 1 to Decl. of Sebastian M. Medvei.) Plaintiff argues that Defendant’s counsel must be disqualified because LAUSD’s refusal to pay for any proposed settlement between Plaintiff and Defendant creates an unwaivable conflict of interest in violation of rule 1.7 of the California Rules of Professional Conduct. (Cal. Rules Prof. Conduct, rule 1.7, subd. (d)(1) [“Representation is permitted under this rule only if the lawyer … reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”].)

As a preliminary matter, Defendant argues that Plaintiff lacks the requisite standing to bring the instant motion to disqualify. A standing requirement is implicit in a motion to disqualify an attorney, i.e., the moving party generally must have or must have had an attorney-client relationship with the attorney. (Jarvis v. Jarvis (2019) 33 Cal.App.5th 113, 131; Conservatorship of Lee C. (2017) 18 Cal.App.5th 1072, 1084.) A judge may grant a non-client’s motion for disqualification when the opposing attorney’s continued representation threatens the moving party with a cognizable injury or would undermine the integrity of the judicial process. (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1205.)

Here, Defendant argues that “Plaintiff has no relationship with Vanderford & Ruiz, LLP. She also does not allege concrete, particularized harm to a legally cognizable interest. Instead, Plaintiff speculates that the School District would rather pay to defend the case, than to have Mr. Adame accept a settlement offer. There is no basis, whatsoever, for Plaintiff’s speculation and it does not constitute a concrete and particularized cognizable interest to support Plaintiff’s disqualification motion.” (Def.’s Opp. 8:22–26.)

Plaintiff argues in reply that she “has suffered economic loss and even emotional harm by virtue of LAUSD’s control of the litigation.” (Pl.’s Reply 7:15–16.) Specifically, Plaintiff asserts that “Present Defense Counsel’s lack of independence from LAUSD has caused Present Defense Counsel to refuse to use LAUSD’s defense funds to accept Plaintiff’s offer to settle the case for $10,000, which offer, made in recognition of LAUSD’s refusal to pay settlements via its control of Present Defense Counsel and Defendant’s indigence and inability to pay any liability outside of his relationship with LAUSD as his indemnitor, does not even remotely approximate any realistic risk of liability in this case.” (Id. at 7:21–46.) “Had that offer been accepted, as it should have been, and as it would have been by independent counsel advising Defendant, Plaintiff would not have suffered economic loss in the form of additional attorney’s fees and costs litigating this case.” (Id. at 8:3–5.) Plaintiff further argues that “here, LAUSD’s interference with Present Defense Counsel’s independence and Present Defense Counsel’s conflict poses an injury to the judicial process. … But for Present Defense Counsel’s payment relationship with LAUSD, this matter would have settled long ago, because, as explained above, the liability exposure is so great and the demands to settle have been so small that no party, let alone actual independent counsel, or the Defendant, would take on the risk of trying this case over $10,000 (and Plaintiff’s other past offers).” (Id. at 10:5–14.)

The Court agrees with Defendant that Plaintiff’s purported monetary harm in incurring continued legal fees, due to Defendant’s refusal of Plaintiff’s settlement offer, is speculative and therefore, alone, insufficient to establish standing to bring the instant motion. However, the Court observes that where a third-party guarantor’s payment of a party’s legal fees interferes with counsel’s independent legal judgment, the integrity of the judicial process is unquestionably threatened, such that a non-client may bring a motion to disqualify counsel. Accordingly, the Court finds that here, Plaintiff has the requisite standing to bring the instant motion because her claims against Defendant’s counsel, if meritorious, would undermine the integrity of the judicial process. (Kennedy, 201 Cal.App.4th at 1205.) Nevertheless, as further discussed below, the Court finds that Plaintiff has not sufficiently shown that a conflict of interest exists such that Defendant’s counsel must be disqualified.

Here, the indemnification agreement between LAUSD and Defendant provides that “The school district reserves all rights to stop paying for your defense at any time and also to not pay any judgment, compromise, or settlement on your behalf if plaintiff’s alleged injuries arose from your act or omission outside the scope of your school district employment; or because you acted or failed to act because of actual fraud, corruption, or actual malice; or because a conflict of interest would prevent the school district from defending you.” (Ex. 1 to Medvei Decl. [emphasis added].)

Plaintiff argues that a conflict of interest exists here because “even if settlement were independently advisable in this case, LAUSD’s refusal to pay a settlement and its willingness to pay for continued litigation, and Present Defense Counsel’s incentive to receive payment from LAUSD for continued litigation and their lack of any incentive to consider a reasonable settlement, inexorably will prevent Present Defense Counsel from appropriately advising the Defendant to accept a settlement.” (Pl.’s Mot. 4:7–12.) Plaintiff argues that “in a traditional insurance relationship, the refusal to settle a case in the face of risk of a substantially greater liability would be called ‘bad faith’ because a competent person would accept a settlement that is cheaper than the cost to defend and/or the likely verdict.” (Id. at 5:6–9, citing Johansen v. California State Auto. Ass’n Inter-Ins. Bureau (1975) 15 Cal.3d 9, 16.)

In general, a public entity must provide its employee with a defense in any action against the employee arising out of conduct within the scope of their employment, and it must indemnify an employee for any judgment or settlement paid by the employee in such an action. (Gov. Code § 825 et seq. [indemnification]; Gov. Code § 995 et seq. [defense].) Defendant argues in opposition that “contrary to unsupported assertions in motion, there is no evidence that the School District ‘is paying Defendant’s lawyers not to settle Defendant’s case.’” (Def.’s Opp. 5:20–21.) “Here, the School District is operating precisely in accordance with Gov. Code §§ 825 and 995, because it has provided Defendant Adame with a defense, but reserved its right not to pay any judgment or settlement unless there is a finding that Defendant Adame acted within the scope of his employment.” (Id. at 6:14–18.)

In reply, Plaintiff argues that “because LAUSD has determined, as did the Court and the Court of Appeal,[1] that Defendant’s conduct was not within the scope of Defendant’s employment by LAUSD, such that LAUSD ‘will have no liability’ for a judgment against Defendant, LAUSD has set a blanket policy for this case of refusing to pay any settlement or verdict on Defendant’s behalf.” (Pl.’s Reply 4:26–5:3.) “LAUSD is willing to risk great calamity to Defendant on the (slim) possibility that Defendant might be cleared by a jury of liability, altogether, which result would allow LAUSD to be able to conclusively deny the veracity of this incident altogether—an outcome to LAUSD that is well worth the payment of substantial attorney’s fees to Present Defense Counsel and the risk that defense poses to Defendant, whom, if Plaintiff prevails, LAUSD can thereafter simply distance itself from. And, if Defendant is found liable, LAUSD will have no responsibility to pay even a cent of the verdict against him and could even, itself, prosecute Defendant for the monies it expended on his defense.” (Id. at 5:6–14.)

The Court agrees with Plaintiff’s general argument that if Defendant’s counsel’s relationship with LAUSD prevented Defendant from agreeing to settle the case, against Defendant’s interests, such a conflict of interest may warrant disqualification. However, as previously mentioned, any such resulting harm to either party is speculative at this juncture. Plaintiff has not provided the Court with any evidence or calculations that the proposed settlement is substantially lesser than Plaintiff’s expected recovery upon a trial on the merits, nor any evidence that LAUSD directed or otherwise influenced Defendant’s counsel to reject Plaintiff’s settlement offer.

The Court also notes that trial is set for October 7, 2024 and this case is 1435 days old as of the writing of this tentative ruling.

Based on the foregoing, the Court finds insufficient cause to conclude that an unwaivable conflict of interest exists as to Defendant’s counsel’s representation of Defendant. Accordingly, the motion is denied.

[1] “Although the SAC alleges that Adame was at all times an employee acting within the scope of his employment, I.G. does not, and could not successfully contend that LAUSD is vicariously liable for Adame’s actions.” (I.G. v. Los Angeles Unified School District (July 19, 2022, B317181) [nonpub. opn.], n.4, citing C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868 [sexual battery is outside the scope of employment.].)

SEPTEMBER 18, 2024

RELIEF REQUESTED: Orders compelling both Plaintiff and non-party deponent Anita King to appear to be deposed. Defendant also requests monetary sanctions to be imposed against the deponents and their counsel in the combined amount of $3,836.05.

On 3/21/23, Plaintiff appeared for her first deposition. (Ex. A to Decl. of Ramon Quintana.) On 2/1/24, Defendant served Plaintiff with a Notice of Second Session Deposition and Request for Production of Documents, with her second deposition set for 2/23/24. (Ex. B to Quintana Decl.) On 2/16/24, Plaintiff served her objections thereto. (Ex. C to Quintana Decl.) Plaintiff did not appear for her scheduled 2/23/24 deposition.

On 4/12/24, nonparty deponent Anita King, Plaintiff’s mother and guardian ad litem, was served with a subpoena to appear for her deposition on 5/20/24. (Ex. D to Quintana Decl.) Counsel for the parties agreed to reschedule Ms. King’s remote deposition to 6/24/24. (Exs. E–F to Quintana Decl.) On 6/20/24, Ms. King served her objections to the deposition notice. (Ex. H to Quintana Decl.) Ms. King did not appear for her scheduled 6/24/24 deposition. (Ex. L to Quintana Decl.)

On 5/21/24, Defendant filed the instant motion to compel the deposition of Plaintiff. On 6/27/24, Defendant filed the instant motion to compel the deposition of Ms. King. On 9/6/24, Plaintiff filed her oppositions thereto. On 9/12/24, Defendant filed his replies.

A party may, upon proper written notice, obtain discovery by taking the oral deposition of any natural person, organization, partnership, association, or governmental agency. (Code Civ. Proc. §§ 2025.010, 2025.220.) A party deponent can be required to attend a deposition by service of a deposition notice on the party’s attorney. (Code Civ. Proc. § 2025.280, subd. (a).) When a nonparty is served with a deposition subpoena but fails to attend the deposition or refuses to be sworn as a witness, the party that served the subpoena may move for an order directing compliance with the subpoena and imposing other terms or conditions as the judge considers appropriate. (Code Civ. Proc. § 1987.1, subd. (a).)

“If, after service of a deposition notice, a party to the action … without having served a valid objection …, fails to appear for examination, … the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc. § 2025.450, subd. (a).) “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc. § 2025.480, subd. (a).)

A motion to compel a deposition must (1) “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice;” and (2) “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc. § 2025.450, subd. (b).)

Here, Defendant’s counsel declares that on 2/23/24, he sent Plaintiff’s counsel a meet and confer letter inquiring about the second deposition of Plaintiff but received no substantive response. (Quintana Decl. ¶ 6; Ex. D to Quintana Decl.) Accordingly, the Court finds that counsel has satisfied the meet and confer requirements under Code of Civil Procedure section 2025.450, subdivision (b).

All discovery proceedings under the Discovery Act must be completed 30 days before the date initially set for the trial, irrespective of continuances or postponements of that trial date. (Code Civ. Proc. § 2024.020.) Once the discovery cutoff date has run and discovery has closed, the only means provided in the Discovery Act for reopening discovery is a motion for leave of court. (Code Civ. Proc. § 2024.050.)

A motion for leave to complete discovery proceedings requires the Court to consider such factors as: “(1)¿The necessity and the reasons for the discovery; (2)¿The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3)¿Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4)¿The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.” (Id. at subd. (b).)

Here, while the Court continued the trial date to 10/7/24, the parties originally stipulated for trial to begin on 7/22/24, with all related discovery dates corresponding to that date. Accordingly, the discovery cut-off date was 6/24/24, and no party has since moved to reopen the discovery period. In Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, the Court of Appeal found that the trial court abused its discretion in hearing the plaintiff’s belated motion to compel discovery without first deciding whether to reopen discovery, and this abuse of discretion was prejudicial to defendant because it was reasonably probable the trial court would have denied any motion to reopen discovery.

Here, the Court notes that the granting of the instant motions would inevitably require the deponents to appear for their depositions past the 6/24/24 discovery cut-off date, and Defendant has not moved for leave to extend or reopen the discovery period. Even as such, the Court notes that here, as in Pelton, it is “reasonably probable” that the Court would have denied any such motion, based on its concerns with Defendant’s lack of diligence in seeking the depositions at an earlier stage of the case, as well has the likelihood that permitting the discovery would delay the case from going to trial as planned on 10/7/24. (165 Cal.App.4th at 1589; Code Civ. Proc. § 2024.050, subd. (b).)