Judge: Cherol J. Nellon, Case: 23STCV17972, Date: 2024-05-28 Tentative Ruling

Case Number: 23STCV17972    Hearing Date: May 28, 2024    Dept: 14

Amirtalesh v. Beverly Hills

Case Background

Plaintiff alleges she rents a residential property located at 240 North Crescent Drive, Apt. 107, Beverly Hills CA (the Property). (FAC, ¶ 1.) Plaintiff has sued eight individuals and four business entities, alleging they wronged her in various ways during her tenancy at the Property. Among the defendants are her landlord(s), certain neighbors, and attorneys and law firms who have represented the same.

Plaintiff sued on July 31, 2023 and filed her operative first amended complaint (FAC) on September 20, 2023. Her FAC names defendants Beverly Hills Properties, LLC (BHP), the Sterling Family Trust (SFT), Rochelle H. Sterling, Douglas Walton, Gregory Garbacz, David Lenhardt, Fred S. Peters, Stacey Friedman, Klinedinst PC, Pyka Lenhardt Schnaider Dawkins LLP, the Law Office of Robert Shiri, APC, Humberto Gonzalez, Arianne Newman, and Does 1 through 25. Plaintiff’s FAC claims to state causes of action for:

1.         Fraud

2.         Violation of Business and Professions Code § 6106;

3.         Violation of Business and Professions Code § 17200;

4.         Defamation;

5.         False Light;

6.         Harassment;

7.         Intentional or Negligent Infliction of Emotional Distress;

8.         Elder Abuse;

9.         Breach of COVID-19 Rent Relief Assistance (80/20) Program;

10.       Retaliation;

11.       Intrusion on Solitude; and

12.       Public Disclosure of Private Facts.

            On November 1, 2023, defendants BHP, Walton, Peters, Pyka Lenhardt, SFT, Sterling, Garbacz, Lenhardt, Klinedinst, and Newman specially moved to strike Plaintiff’s FAC under Code of Civil Procedure section 425.16 (the “anti-SLAPP” law).

            On January 29, 2024, defendants Friedman and the Law Office of Robert Shiri demurred to Plaintiff’s FAC.

            On February 20, 2024, defendant Gonzalez demurred to Plaintiff’s FAC.           

             
            On May 22, 2024, anti-SLAPP Motion was denied.

            No trial date has been set.

Instant Motion

            Plaintiff now moves the Court for an order disqualifying Gregory Garbacz as counsel. (Garbacz, also a named defendant, represents himself, his firm, and several of his co-defendants in this litigation, as he did during some of the incidents underlying the FAC.)

            On May 14, 2024, Garbacz and the defendants he represents opposed Plaintiff’s motion.

            On May 20, 2024, Plaintiff replied.

Decision

            The motion is DENIED.

Governing Standard/Statute

Under Code of Civil Procedure section 128, the trial court has the inherent authority 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., § 128, subd. (a)(5).) “A court’s authority to disqualify a lawyer in a pending proceeding derives from its inherent power to regulate the conduct of court officers, including attorneys, in furtherance of the sound administration of justice.” (City of San Diego v. Superior Court (2018) 30 Cal.App.5th 457, 469-470 (San Diego); see also People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.)

Evidentiary Matters

            The parties each request judicial notice of various matters. The Court denies all requests. None is material to the instant ruling.

Discussion

“Disqualification may be ordered as a prophylactic measure against a prospective ethical violation likely to have a substantial continuing effect on future proceedings.” (Doe v. Yim (2020) 55 Cal.App.5th 573, 581.) Not every instance of unprofessional conduct or bad judgment by an attorney warrants disqualification (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 309 (Gregori)); disqualification is preventative, not punitive (Neal v. Health Net, Inc. (2002) 100 Cal.App.4th 831, 844). The decision to disqualify requires a “delicate balancing of competing policy considerations” (San Diego, supra, 30 Cal.App.5th at p. 470) that requires the court to weigh the effect of an attorney’s misconduct on the proceedings with the “substantial hardship [imposed] on the disqualified attorney’s innocent client .... “ (Gregori, supra, 207 Cal.App.3d at p. 300; Lyle v. Superior Court (1981) 122 Cal.App.3d 470, 481 (Lyle) [“[T]he client has an interest in competent representation by an attorney of his or her choice.”].)

“Since the purpose of a disqualification order must be prophylactic, not punitive, the significant question is whether there exists a genuine likelihood that the status or misconduct of the attorney in question will affect the outcome of the proceedings before the court.” (Gregori, supra, at pp. 308-309.) “ ‘[T]he trial court can disqualify counsel only where it is confronted with manifest interests which it must protect from palpable prejudice.’ [Citation.]” (Geringer v. Blue Rider Finance (2023) 94 Cal.App.5th 813, 822.)

In the authoritative cases where counsel has been disqualified for misconduct, the courts took that drastic action because counsel’s conduct vested his client with an unfair, continuing advantage. In San Diego and Gregori, supra, the Court of Appeal demanded an opposing party show “a ‘reasonable probability’ and ‘genuine likelihood’ that opposing counsel ha[d] ‘obtained information the court believe[d] would likely be used advantageously against an adverse party ... .’ ” (San Diego, supra, at p. 462, emphasis added, quoting Gregori, supra, at p. 309.) “Disqualification is inappropriate .. simply to punish a dereliction that will likely have no substantial continuing effect on future judicial proceedings.” (Chronometric, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 607.)

            In support of her motion, Plaintiff submits a declaration that largely re-argues the merits of her underlying case or accuses various parties of misconduct in a related small claims proceeding. To the extent Plaintiff’s declaration is relevant to the matter of disqualification, she attests only that “Gregory Garbacz by representing [other] defendants in plaintiff’s habitability case unlawfully gained unauthorized confidential information”, and that Garbacz’s “representation of himself, his law firm and representation of other defendants in the same case will cause conflict[s] of interest”. (Amirtalesh Decl., ¶¶ 47-48.) Plaintiff asserts that “his dual role will be prejudicial to [her] and misleading to [the] tribunal.” (Id., 13:1-2.)

            Plaintiff does not argue Garbacz has ever represented her or obtained confidential information from her, such that he has obtained information that could be used to her disadvantage. She accuses him of a litany of unprofessional practices, and she accuses him of assisting his clients with their own misconduct. But she does not identify any reason any of that misconduct – even assuming it occurred – will corrupt these proceedings going forward. Justice requires that the Court protect all parties’ choice of counsel from challenges by opposing parties except in the most extreme circumstances. Plaintiff has not shown such circumstances exist here.

Conclusion

Plaintiff has not shown that any improper conduct by Garbacz creates a genuine likelihood that he has obtained an advantage that will substantially affect the judicial proceedings, or that he has obtained confidential information or suffers from any conflict of interest that would warrant disqualification.

The motion is DENIED.