Judge Bruce G. Iwasaki, Case 22STCV23647 2023-04-27 Tentative Ruling

Case Name: People & Logistics America, Inc. v. The Continental Insurance Company aka CAN, et al.

Motions: (1) Defendant Interstate Mutual Insurance Brokerage, Inc.’s Motion to Disqualify Plaintiff’s Counsel JKLAWUSA, APC;

(2) Defendant Interstate Mutual Insurance Brokerage, Inc.’s Motion to Disqualify Plaintiff’s Counsel BOKSOON CHRISTINE PARK; and

(3) Plaintiff’s Motion to Disqualify Defense Counsel CHRIS KOES of McCarthy & Kroes.

Moving Party: (1) Defendant Interstate Mutual Insurance Brokerage, Inc.; (2) Plaintiff Interstate Mutual Insurance Brokerage, Inc.; and (3) Plaintiff People & Logistics America, Inc.

Tentative Ruling: (1) GRANTED; (2) DENIED as moot; and (3) DENIED.

This is an insurance dispute. Plaintiff People & Logistics America. Inc. (“Plaintiff”). On July 21, 2022, Plaintiff filed a complaint against Defendants The Continental Insurance Company aka CNA (“CNA”) Interstate Mutual Insurance Brokerage, Inc. (“Interstate”) (collectively, “Defendants”), alleging causes of action for declaratory relief, breach of written contract, breach of implied covenant of good faith and fair dealing, failure to comply with insurance laws (bad faith insurance claim), fraud, negligence, and violations of business and professions code sections 17200 et seq.

On February 9, 2023, Defendant Interstate filed a motion to disqualify Plaintiff’s counsel BOKSOON CHRISTINE PARK of the law firm JKLAWUSA, APC. Plaintiff opposed this motion on April 3, 2023. Interstate did not file a reply. The motion was originally scheduled for hearing on April 20, 2023, but was later continued to April 27, 2023.

On April 4, 2023, Defendant Interstate filed an ex parte application to disqualify the entire law firm of JKLAWUSA, APC. On April 5, 2023, Plaintiff opposed the ex parte application. On April 6, 2023, Interstate filed a reply. On April 6, 2023, the Court denied the ex parte application but permitted the underlying request to proceed as a regularly scheduled motion and reset the hearing on the motion for April 27, 2023.

On April 4, 2023, Plaintiff filed a motion to disqualify Interstate’s counsel, CHRIS KROES. Interstate has not opposed the motion.

Due to the overlap between Defendant Interstate’s motions to disqualify counsel, both of them will be treated as one motion.

Motions #1 and #2 – Defendant Interstate’s Motions to Disqualify Plaintiff’s Counsel

“A party may move to recuse (disqualify) counsel for the opposing party on grounds recognized by law, including mandatory disqualification for conflict of interest based on a prior (successive) or current representation.” (G. Motions Regulating Counsel, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-G, citing Lynn v. George (2017) 15 Cal.App.5th 630, 637.) The Court has the power “[t]o 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.” (CCP § 128(a)(5).)

Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages. The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.

A party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum. The application must state reasons why the argument cannot be made within the stated limit.

A memorandum that exceeds 10 pages must include a table of contents and a table of authorities. A memorandum that exceeds 15 pages must also include an opening summary of argument.

A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.”

Generally, new evidence is not permitted on reply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38.)

Plaintiff’s opposition fails to comply with California Rules of Court, Rule 3.1113. First, it is 26 pages long, which exceeds the 15-page limit for memorandums unless the Court expressly authorizes a longer memorandum and Plaintiff obtained no such authorization. Second, Plaintiff’s opposition contains no table of contents or table of authorities. Third, because Plaintiff’s opposition exceeds the permissible page limit, it is the same as if it was filed late. The Court has reviewed the opposition, but will disregard it due to its failure to comply with Rule 3.1113. (CRC Rule 3.1113.)

Additionally, Defendant Interstate attached a new declaration to its reply. To the extent this additional declaration constitutes new evidence, the Court declines to consider it.

An attorney owes a duty of confidentiality to his or her client. (Bus. Prof. Code § 6068(e)(1). An attorney also owes a duty of loyalty to a client, such that disqualification is necessary even if there is no risk of a client’s confidences being transmitted to the client’s litigation adversary in an unrelated matter. (Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 84, citing Flatt v. Superior Court (1994) 9 Cal.4th 275, 284-85.) Unless there is informed written consent by each client, disqualification is automatic in cases of simultaneous representation of clients. (Sheppard, at p. 80.) Disqualification is necessary in cases of successive representation where there is a substantial relationship between the subjects of the prior and current representations. (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847, citing Flatt, at p. 283.) A conflict of interest that requires an attorney’s disqualification from a matter normally extends to the entire firm to safeguard the clients’ legitimate expectations that their attorneys will protect their confidences. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1139, citing Flatt v. Superior Court (1994) 9 Cal.4th 275, 283-84; City and County of San Francisco, at pp. 847-48.) Such conflict of interest imputations apply to attorneys who are of counsel. (SpeeDee, at pp. 1139 [“Conflicting representations that would disqualify all of a law firm’s attorneys are not more acceptable when an attorney of counsel to the firm creates the conflict.”)

Defendant Interstate seeks to disqualify Plaintiff’s law firm JKLAWUSA, APC on the grounds of simultaneous representation. Interstate contends that attorney Jin Ho Lee was of counsel to JKLAWUSA, APC at the same time that Jin Ho Lee was representing Interstate. Jin Ho Lee prepared and filed an answer to Plaintiff’s complaint on behalf of Interstate on September 26, 2022. (Answer (9/26/2022).[1]) Interstate further contends that Jin Ho Lee’s website indicated he was of counsel to JKLAWUSA, APC on September 23, 2022, when Ronny Song, the principal for Defendant Interstate, met with Jin Ho Lee for the first time at JKLAWUSA, APC’s office to discuss the case. Plaintiff’s counsel, Christine Park, was also physically present during this meeting at Jin Ho Lee’s invitation, and had conversations with Ronny Song strategizing about the case.

The Court agrees with Defendant Interstate and finds that JKLAWUSA, APC is disqualified from continuing to represent Plaintiff in this action on the grounds of simultaneous representation of Plaintiff and Defendant Interstate. Jin Ho Lee prepared and filed Interstate’s answer to the complaint on September 26, 2022. The first meeting with Ronny Song on September 23, 2022 was not only held with both Jin Ho Lee and Christine Park wherein both advised Ronny Song on case strategy, but it was also held at JKLAWUSA, APC’s office. The conflict present here cannot be resolved by simply walling off Jin Ho Lee or Christine Park. This requires JKLAWUSA, APC to be altogether disqualified from any further participation in this action.

The Court also notes that, even if Plaintiff’s opposition had complied with California Rules of Court, Rule 3.1113, it would have failed to persuade the Court to rule otherwise. Much of Plaintiff’s arguments appear to be based on counsel for Interstate violating various rules of the California Rules of Professional Conduct, any of which at most might merit the imposition of a sanction or a report to the State Bar, but none of which would necessitate a disqualification. Plaintiff has not presented any arguments or evidence that counsel for Interstate have any sort of conflict of interest. Plaintiff’s other arguments about Jin Ho Lee not having been of counsel during the case are unpersuasive in light of the foregoing analysis and for the reasons set forth in Interstate’s reply.

The Court further finds that Interstate’s earlier motion to disqualify Christine Park filed on February 9, 2023 is moot in light of the Court’s decision to disqualify the entire firm of JKLAWUSA, APC from any further participation in this action.

Therefore, the Court will grant Defendant Interstate’s motion to disqualify JKLAWUSA, APC from any further representation or participation in this action. The Court will deny Defendant Interstate’s motion to disqualify Plaintiff’s counsel, Christine Park, as moot. Of course, if Ms. Park disassociates herself from the JKLAWUSA firm, she would remain disqualified from serving as an attorney in this matter.

The Court disregards Plaintiff’s motion to disqualify because it too, like Plaintiff’s opposition discussed above, fails to comply with California Rules of Court, Rule 3.1113. The memorandum is 16 pages long, which exceeds the 15-page limit for memorandums unless the Court expressly authorizes a longer memorandum and Plaintiff obtained no such authorization. It also fails to contain a table of contents and a table of authorities. The motion is also considered late by virtue of it exceeding the appropriate page limit. Therefore, the Court disregards Plaintiff’s moving papers and will deny the motion.

Also, even if Plaintiff had complied with Rule 3.1113, it would still not persuade the Court. There appears to have been a significant amount of cutting and pasting between Plaintiff’s opposition to Interstate’s motion to disqualify JKLAWUSA, APC and Plaintiff’s moving papers to disqualify Chris Kroes. Thus, Plaintiff has repeated the same failing arguments. Again, Plaintiff’s arguments, if true, at most might merit the imposition of a sanction or a report to the State Bar, but none of them would necessitate a disqualification. Plaintiff has not presented any evidence of a conflict of interest between counsel for Interstate and any other party to this action.

The Court GRANTS Defendant Interstate Mutual Insurance Brokerage, Inc.’s Motion to Disqualify Plaintiff’s Counsel JKLAWUSA, APC;

The Court DENIES Defendant Interstate Mutual Insurance Brokerage, Inc.’s Motion to Disqualify Plaintiff’s Counsel BOKSOON CHRISTINE PARK as moot.

The Court DENIES Plaintiff’s Motion to Disqualify Defense Counsel CHRIS KOES of McCarthy & Kroes.

[1] Interstate requested the Court take judicial notice of this document, but only made the request in a footnote of its moving papers, which is generally not proper form for a request for judicial notice. Nevertheless, the Court can and does take judicial notice of Interstate’s Answer sua sponte under Evidence Code section 452.

Department 58