Judge: Anne Richardson, Case: 20STCV20770, Date: 2024-06-21 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 20STCV20770    Hearing Date: June 21, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

On June 10, 2024, Tabitha De La Torre (hereafter, Defendant De La Torre) filed a motion to disqualify counsel for Harriet Fleming and Peter K. Robbins (hereafter, Plaintiffs) based on their alleged possession and non-disclosure of possession of privileged documents purportedly belonging to Defendant De La Torre.

On June 11, 2024, the Court granted an ex parte application by Defendant De La Torre to advance the hearing on the motion to disqualify from September 30, 2024, to June 21, 2024. The Court ordered Plaintiffs to file an opposition no later than June 14, 2024, and Defendant De La Torre to file a reply no later than June 18, 2024.

On June 14, 2024, Plaintiffs filed an opposition to Defendant De La Torre’s motion with declarations.

On June 18, 2024, Defendants filed a reply brief with declarations. A sur-reply was filed and served on June 20, 2024.

Defendant De La Torre’s motion is now before the Court.

II. Motion to Disqualify Counsel: DENIED.

A. Legal Standard

Code of Civil Procedure section 128, subdivision (a)(5) authorizes the Court to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto. (Code Civ. Proc., § 126, subd. (a)(5).) This authority necessarily includes disqualifying an attorney. (Metro-Goldwyn Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1837-38.) The issue of disqualification ultimately involves a conflict between the client’s right to counsel of their choice and the need to maintain ethical standards of professional responsibility. (Ibid.)

In ruling on a motion to disqualify, the court should weigh: (1) the party’s right to counsel of choice; (2) the attorney’s interest in representing a client; (3) the financial burden on a client of change of counsel; (4) any tactical abuse underlying a disqualification motion; and (5) the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel. (William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 1042, 1048.)

Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. (Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113.) In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. (Ibid.) The paramount concern must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar and the recognized and important right to counsel of one’s choosing must yield to considerations of ethics that run to the very integrity of our judicial process. (Metro-Goldwyn Mayer, Inc., supra, 36 Cal.App.4th at pp. 1837-38.)

B. Analysis

The Court finds in favor of Plaintiffs on two grounds.

First, the emails at issue do not appear to be privileged, undermining relief to disqualify counsel based on use of those emails as evidence in this action without disclosure to Defendant De La Torre.

An “electronic communication is [not] privileged (1) when the electronic means used belongs to the defendant[,] (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purpose[,] and (3) the plaintiff is aware of and agrees to these conditions” because “within the meaning of section 952[,] … it is not transmitted ‘by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation ….’ [Citation.]” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1068 (Holmes).)

Here, under a special shareholders agreement for Bird Design, Inc., all creative and infrastructural data that was documented digitally or otherwise relating to Bird prior to the dissolution of the company (shared assets) was to be managed and stored by Plaintiff Robbins, with Robbins to make the data available to Defendant De La Torre upon request, and with the shared assets becoming the joint property of Plaintiff Robbins and Defendant De La Torre. (Opp’n, Robbins Decl., Ex. B.) The Court reads these clauses as satisfying Holmes. These clauses identify Bird electronic creative and infrastructural data as belonging to Plaintiff Robbins in part. The clause advises Defendant De La Torre of this fact, with De La Torre signing the agreement at page five. And Defendant De La Torre must have been aware of these conditions based on her signature on the shareholders agreement, which, based on the dates appearing on the agreement, appears to have been executed on or before January 31, 2017. (Opp’n, Robbins Decl., Ex. B.)

Defendant De La Torre argues that trial exhibits 17, 77, 78, and 112 are privileged and were obtained but not properly disclosed by counsel. (See, e.g., Mot., pp. 5-6.) However, as argued in the opposition, the emails at issue appear to have been sent from (Ex. 112) or received at (Exs. 17, 77, 78) a Bird Design, Inc. inbox. (Opp’n, pp. 9-10; see Opp’n, Katzoff Decl., Ex. D [Trial exhibit 77].) At least one of the emails is to an attorney, Mr. Ross, who at a previous time had actually represented Bird and Robbins at a deposition. Neither are other emails sent to a bookkeeper of Bird and Lucas King presumptively covered by attorney-client privilege. Nothing in the reply alters this Court’s conclusion, thus the sur-reply need not be considered. Under these circumstances the emails at issue are not privileged under Holmes.

Second, Defendant De La Torre has unduly delayed in bringing this motion, which she could have brought in 2022.

Attorney disqualification can be impliedly waived by failing to bring the motion in a timely manner. (Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 844.) To result in a waiver, the delay and the prejudice to the opponent must be extreme. (Id. at p. 845.) Factors relevant to the reasonableness of a delay include the stage of litigation at which the disqualification motion is made and the complexity of the case. (Id. at p. 846.) Delay can also be an indication that the alleged breach of confidentiality was not seen as serious or substantial by the moving party, and can suggest the possibility that the party brought the motion as a tactical device to delay litigation. (Id. at p. 847.)

Here, a mere few days before trial, Defendant De La Torre filed a motion to disqualify counsel. However, Plaintiffs have filed evidence showing that the four trial exhibits at issue (Ex. 112, since withdrawn) were disclosed by Plaintiffs to Defendant De La Torre in December 2021, with defense counsel acknowledging receipt and review of the discovery production. (Opp’n, Katzoff Decl., ¶¶ 3-11, Ex. C.) This motion thus comes before the Court nearly two-and-a-half years after disclosure. The Court finds that such a delay, at this late stage of proceedings, either connotes delay supporting a waiver or connotes a tactical device used on the eve of trial to delay litigation. Moreover, the prejudice is extreme to Plaintiffs where the motion was brought two weeks before trial and is set to be heard three days before trial is scheduled to begin.

Based on the above, the Court DENIES Defendant De La Torre’s motion. 

III. Conclusion

Defendant Tabitha De La Torre’s Motion to Disqualify The Law Firm of Katzoff & Riggs LLP as Plaintiffs’ Counsel [Res ID # 6769] is DENIED.