Judge Barbara M. Scheper, Case Number: 23STCV24958, Date: 2024-08-08 Tentative Ruling

Judge: Barbara M. Scheper, Case: 23STCV24958, Date: 2024-08-08 Tentative Ruling

Case Number: 23STCV24958 Hearing Date: August 8, 2024 Dept: 30

Dept. 30

Calendar No.

Wuxi Brisk Trading Co., LTD v. Nasimi, et. al., Case No. 23STCV24958

Tentative Ruling re: Defendants’ Motion to Disqualify Counsel

Defendants Adrian Nasimi aka AJ Sadian and A&Y International Global Inc. move to disqualify Plaintiff’s counsel, Andrew Ritholz, and the Law Offices of Andrew Ritholz Inc., from participating in this case. The motion is denied.

A trial court is empowered to disqualify counsel through its inherent power to control the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it. (M’Guinness v. Johnson (2015) 243 Cal.App.4th 602, 613.)

“Before an attorney may be disqualified from representing a party in litigation because his representation of that party is adverse to the interest of a current or former client, it must first be established that the party seeking the attorney's disqualification was or is ‘represented’ by the attorney in a manner giving rise to an attorney-client relationship. [Citation.] The burden is on the party seeking disqualification to establish the attorney-client relationship.” (Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729.)

“[W]here a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client, the governing test requires that the client demonstrate a ‘substantial relationship’ between the subjects of the antecedent and current representations.” (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283 [emphasis in original].) “[W]here the former attorney-client relationship was peripheral or attenuated, rather than direct and personal . . . the court will not presume the attorney received confidential information absent a showing ‘the attorney was in a position vis-[à]-vis the client to likely have acquired confidential information material to the current representation.’ ” (Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465, 479.) “ ‘Mere prior professional association with the former client is not enough’[Citation]. The focus is upon the nature and extent of the former attorney's involvement, as well as the factual and legal similarity of the cases. [Citations.] ‘As part of its review, the court should examine the time spent by the attorney on the earlier cases, the type of work performed, and the attorney's possible exposure to formulation of policy or strategy.’ [Citation].” (In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 564.)

“ ‘The fiduciary relationship existing between lawyer and client extends to preliminary consultations by a prospective client with a view to retention of the lawyer, although actual employment does not result.’ [Citation].” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1147–1148.) In assessing whether a legal consultation has ripened into an attorney-client relationship warranting disqualification, “[t]he primary concern is whether and to what extent the attorney acquired confidential information. [Citation.] That question is not necessarily answered by the amount of time involved. ‘Even the briefest conversation between a lawyer and a client can result in the disclosure of confidences.’ [Citation.] Consequently, a formal retainer agreement is not required before attorneys acquire fiduciary obligations of loyalty and confidentiality, which begin when attorney-client discussions proceed beyond initial or peripheral contacts. An attorney represents a client—for purposes of a conflict of interest analysis—when the attorney knowingly obtains material confidential information from the client and renders legal advice or services as a result.” (Ibid.)

Defendants argue that attorney Ritholz was retained by Nasimi and A&Y to represent them as counsel in a case brought against them in Yang Rim Co Ltd v. A & Y International Global Inc., et al., Case No. 23STCV04534. (Defendants’ motion to disqualify counsel, Lines 10-16, p. 3.) The former matter involved a breach of contract claim related to the purchase of textiles from Yang Rim. (Id., Lines 17-20, p.3) The current case is a breach of contract case stemming from the purchase of textiles from Wuxi Brisk Trading Co. Ltd by Nasimi and A&Y. (Id.) Defendants argue that it is presumed that attorney Ritholz became privy to confidential information in the course of their relationship and that attorney Ritholz’s prior representation is substantially related to the current matter. (Id., Lines 24-28, p. 6 and Lines1-3, p. 7.) Specifically, attorney Ritholz learned of the ownership interest, operation of Nasami’s business structure, operating practices, the financial condition of the Defendants and their ability to maintain an action. (Id.) Additionally, attorney Ritholz had multiple meetings with Nasimi and entered into a stipulation with Yang Rim’s counsel to set aside default against Nasimi and A&Y. (Nasami Decl. ¶ 3.)

Here, the Court finds that there is not a substantial relationship between attorney Ritholz’s prior representation and the current matter. First, the cases relate to separate contract disputes involving different contracts and parties. The fact that attorney Ritholz represented Nasimi and A&Y in an unrelated matter is not sufficient to show that a substantial relationship existed between the two matters. Rather, it must be shown that the attorney acquired confidential information “material to the current representation. ” (Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465, 479.) Acquiring confidential information that is unrelated to the current matter is not sufficient to meet this burden.