Judge: Armen Tamzarian, Case: 24STCV16465, Date: 2025-02-28 Tentative Ruling

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Case Number: 24STCV16465    Hearing Date: February 28, 2025    Dept: 52

Defendant/Cross-Complainant Lothian Road WRX, Inc.’s Motion to Disqualify Counsel and Motion for Protective Order

Motion to Disqualify Counsel

Defendant/cross-complainant Lothian Road WRX, Inc. (Lothian) moves to disqualify plaintiff Swenson He, LLC’s counsel, attorney Bradford Hughes and his firm Clark Hill LLP.

Summary of Pleadings

            Plaintiff’s first amended complaint brings six causes of action against defendants Lothian Road WRX, Inc., and Grover Henry Colin Nix, IV.  The gravamen of the first amended complaint is that the parties had a dispute over unpaid invoices for plaintiff’s services.  The parties executed a settlement agreement under which defendants would pay plaintiff $350,000.  The first amended complaint alleges defendants breached that agreement.

            Lothian’s first amended cross-complaint brings two causes of action against plaintiff.  Lothian asserts plaintiff and plaintiff’s attorney Bradford Hughes made material misrepresentations and fraudulently induced the settlement agreement.

Discussion

Lothian contends plaintiff’s counsel should be disqualified under the advocate-witness rule.  California Rules of Professional Conduct, rule 3.7 provides: “(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: (1) the lawyer’s testimony relates to an uncontested issue or matter; (2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or (3) the lawyer has obtained informed written consent [fn.] from the client.  …  [¶] (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm [fn.] is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.”

Courts have “discretion to disqualify a likely advocate-witness as counsel, notwithstanding client consent, where there is ‘a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.’ ”  (Doe v. Yim (2020) 55 Cal.App.5th 573, 582.)  In doing so, “a court must consider: (1) whether counsel’s testimony is, in fact, genuinely needed (2) the possibility [opposing] counsel is using the motion to disqualify for purely tactical reasons; and (3) the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.”  (Id. at p. 583, internal quotes omitted.)

First, Lothian does not make a strong showing that Hughes’s testimony is necessary.  Lothian contends Hughes is a material witness because he personally negotiated the settlement.  Plaintiff, however, presents evidence that the parties negotiated mostly or exclusively in writing.  (Hughes Decl., ¶¶ 2-20, Exs. A-J.)  This evidence undermines the need for Hughes’s oral testimony at trial. 

Even if Hughes’s testimony would be necessary at trial, Lothian fails to justify disqualifying Hughes now, before the trial date has even been set.  The advocate-witness rule is generally limited to the trial itself and should not be applied to “behind-the-scenes activities unlikely to pose any risk of fact finder confusion.”  (Lopez v. Lopez (2022) 81 Cal.App.5th 412, 425.)

Lothian also gives no reason to disqualify the entire law firm Clark Hill LLP.  Lothian’s papers do not address part (b) of rule 3.7 of the Rules of Professional Conduct: “A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm [fn.] is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.”  Rules 1.7 and 1.9 pertain to conflicts of interest with current and former clients, respectively.  Lothian does not show those rules prohibit Clark Hill LLP from representing plaintiff.

Second, the record indicates a significant possibility that defendant made this motion for purely tactical reasons.  Attorney Hughes is only a material witness because Lothian made him one.  But for Lothian’s cross-complaint, Hughes would likely not be a witness.  That defendant seeks to disqualify Hughes long before trial and seeks to disqualify his entire firm, not just the lone attorney who might be a witness, further supports the conclusion that Lothian’s motion is strategic. 

Third, the record does not show that protecting the integrity of the judicial process warrants denying plaintiff the right to counsel of its choice. 

After considering all relevant factors, the court finds that Bradford Hughes serving as both witness and advocate would not prejudice Lothian or injure this proceeding’s integrity.

Motion for Protective Order

            Defendant/cross-complainant Lothian Road WRX, Inc. moves for a protective order delaying depositions and other discovery until after disqualification of plaintiff’s counsel.  The court will not disqualify plaintiff’s counsel.  Lothian’s motion for protective order is moot. 

Disposition

Defendant/cross-complainant Lothian Road WRX, Inc.’s motion to disqualify plaintiff’s counsel is denied. Defendant/cross-complainant Lothian Road WRX, Inc.’s motion for protective order plaintiff’s counsel is denied.