Judge: Carolyn M. Caietti, Case: 37-2022-00000449-CU-WT-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2022-00000449-CU-WT-CTL HILL VS ST VINCENT DE PAUL VILLAGE INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants St. Vincent DePaul Village, Inc. and SVDP Management, Inc.'s Motion to Disqualify and/or Recuse Aaron Markowitz, Esq. and Markowitz Law Group, APLC from Representing Plaintiff Johanna Hill is GRANTED.

Defendants' reply objections are overruled as to No. 3 and sustained as to Nos. 1, 2 and 4.

In this motion, Defendants seek an order disqualifying Attorney Aaron Markowitz and his firm from representing Plaintiff. When Plaintiff filed her Complaint, Attorney Markowitz was an attorney at Markowitz Law Group. He now is employed by the City Attorney's office. In his opposition declaration, he explains when the City Attorney's Office offered him his current position, he was told that pursuant to the San Diego City Charter, he could 'carry to a conclusion any matters for which I have been retained prior to taking office,' but could not engage in any new private legal matters while working for the City Attorney's Office. (ROA 185 – Declaration of Aaron Markowitz, at ¶ 6.) Defendants maintain they 'and the City have a substantial ongoing relationship in an effort to help curb the homelessness epidemic in San Diego, where Defendants exchange confidential and sensitive information about Defendants, their litigation strategies, their business strategy and objectives, their pending lawsuit and their financials, including their strategy for handling, settling and/or litigating complaints.' (ROA 182 – Declaration of Thomas Lovell, at ¶ 4.) Currently, Defendants are defending and indemnifying the City in a separate civil matter in this department. (Ibid.) A 'standing' requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney. (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356-57 (Great Lakes).) Here, it is undisputed that Defendants neither have nor had an attorney-client relationship with Attorney Markowitz.

But 'no California case has held that only a client or former client may bring a disqualification motion.' (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204.) Kennedy explained a trial court's authority to disqualify an attorney derives from the power inherent in every 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. (Ibid.) The 'paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one's choice must yield to ethical considerations that affect the fundamental principles of our judicial process.' (Ibid., citing Great Lakes, supra, at p. 1355.) Kennedy concluded, 'where an attorney's continued representation threatens an opposing litigant with cognizable injury or would undermine the Calendar No.: Event ID:  TENTATIVE RULINGS

3083018  36 CASE NUMBER: CASE TITLE:  HILL VS ST VINCENT DE PAUL VILLAGE INC [IMAGED]  37-2022-00000449-CU-WT-CTL integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel.' (Kennedy, supra, at p. 1205 (emphasis added).) Here, under these facts, Attorney Markowitz's continued representation of Plaintiff while a deputy city attorney when the City Attorney's office receives confidential and sensitive information and communications from Defendants would result in a strong appearance of impropriety and undermine the integrity of the judicial process, requiring the Court to find standing.

Beyond standing, there are several bases for disqualification. First, under Rules of Professional Conduct 1.11(d), a lawyer currently serving as a public official or employee 'shall not' participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate governmental agency gives its informed written consent.' (See also, Comment 9 to Rule 1.11.) Here, while the City may have allowed Attorney Markowitz to carry to conclusion any matters for which he had been retained prior to taking office when it offered him employment, there is no evidence the City gave informed written consent for him to work on this case knowing the facts and Defendants' involvement.

Further, Attorney Markowitz's representation of Plaintiff and his position as a deputy city attorney creates a situation where he has available opposing party's confidential information. This has served as a basis for disqualification. (See, O'Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1126-27 (citing cases finding disqualification is proper 'as a prophylactic measure to prevent future prejudice to the opposing party from information the attorney should not have possessed,' and where 'there is a reasonable probability counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation').) Defendants and the City have a substantial ongoing relationship. Not only do Defendants conduct business with the City, but they are also involved in litigation together. As a deputy city attorney, Attorney Markowitz has access to the exchange of confidential and sensitive information Defendants provide to the City that could improperly aid Attorney Markowitz in his representation of Plaintiff. It is of no import that the organizational structure of the City Attorney's office has Attorney Markowitz working in the Civil Litigation Division and not the Criminal & Community Justice Division or the Advisory Division. His client remains the City, a governmental entity. (Prof. Conduct Rule 1.13 ['A lawyer employed or retained by an organization shall conform his or her representation to the concepts that the client is the organization itself...'].) Attorney Markowitz also remains subject to Rule 1.7 (Rule 1.11(d)) and his representation could impact his duty of loyalty to both Plaintiff and the City. (Prof. Conduct Rule 1.7 – Comment 1 ['Loyalty and independent judgment are essential elements in the lawyer's relationship to a client...Similarly, direct adversity can arise when a lawyer cross-examines a non-party witness who is the lawyer's client in another matter, if the examination is likely to harm or embarrass the witness.'].) The Court takes Defendants at their word that the City employees recently disclosed in amended discovery responses are witnesses in this case. With the City as a third-party witness and Attorney Markowitz's current client, and Plaintiff as a current client, his representation creates clear adversity. Considering this, Defendants demonstrated injury to the integrity of the judicial process if Attorney Markowitz were to serve both as counsel for the City and for Plaintiff.

Plaintiff's right to be represented by counsel of her choice and the challenges she may face to find new counsel weigh heavily on the Court. The Court also weighed the potential financial burden on Plaintiff of changing counsel and any tactical abuse underlying the motion. But the fundamental principle of fair resolution of disputes within the adversary system outweighs these other considerations under these facts. And Plaintiff's right to be represented by counsel of her choice must yield to considerations of ethics that affect the integrity of the judicial process.

Accordingly, and not lightly, the Court GRANTS the motion disqualify counsel.

Concluding Orders Calendar No.: Event ID:  TENTATIVE RULINGS

3083018  36 CASE NUMBER: CASE TITLE:  HILL VS ST VINCENT DE PAUL VILLAGE INC [IMAGED]  37-2022-00000449-CU-WT-CTL Aaron Markowitz and Markowitz Law Firm are disqualified from representing Plaintiff Johanna Hill.

The Court will discuss whether to continue the two motions to compel discovery set for May 3, 2024, with the parties.

The Court sets a status conference on May 3, 2024, at 9:15 a.m. in Department 70 to determine whether Plaintiff obtained new counsel. The Defense did not objection to a stay on the case until it is determined whether new counsel will be retained. Thus, any further discovery is stayed in the matter until the May 3, 2024 status conference.

In the motion, Defendants did not object to a trial continuance. The trial dates will be discussed at the status conference.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendants are ordered to serve written notice of the Court's final ruling on all appearing parties by April 3, 2024.

Calendar No.: Event ID:  TENTATIVE RULINGS

3083018  36