Judge: Christian R. Gullon, Case: 21PSCV00734, Date: 2023-10-18 Tentative Ruling

Case Number: 21PSCV00734    Hearing Date: October 18, 2023    Dept: O

Tentative Ruling

MOTION FOR ORDER DISQUALIFYING COUNSEL RONALD T. VERA, ESQ., AND THE LAW FIRM OF THE VERA LAW GROUP FROM REPRESENTING PLAINTIFF HECTOR KISTEMANN IN THIS ACTION is DENIED.

Background

This case arises from purported employment harassment. Plaintiff HECTOR KISTEMANN alleges the following: Plaintiff was employed as the Director of Parks and Recreation for the City of San Dimas (“City of San Dimas” or “City”). During the time of employment, Plaintiff received “only positive reviews.” On October 14, 2020, Plaintiff, without notice, was placed on administrative leave due to alleged misconduct. Plaintiff had no choice but to involuntarily submit his resignation, effective February 9, 2021.

On September 3, 2021, Plaintiff filed suit against the City of San Dimas and Does 1 through 10 for:

1.      Constructive Discharge,

2.      Negligent Infliction of Emotional Distress, and

3.      Invasion of Privacy

On October 7, 2021 Plaintiff filed his First Amended Complaint re-alleging the same causes of action. Plaintiff’s prayer for relief is for damages, including attorney’s fees and cost.

On December 2, 2021, the City filed a Demurrer, which was sustained with leave to amend.

On March 3, 2022, Plaintiff filed a second amended complaint (SAC) for:

1.     Constructive discharge

2.     Invasion of Privacy

On April 1, 2022, the City filed its answer.

On June 20, 2022, the City filed a substitution of attorney, replacing Declues, Burkett & Thompson, APC with Wesierski & Zurek LLP.

On August 22, 2023, the City filed multiple motions in limine.

On August 25, 2023, the City filed the instant motion.

On September 13, 2023, Plaintiff filed its opposition.

On October 11, 2023, the City filed its Reply.

Legal Standard

Code of Civil Procedure section 128(a)(5) authorizes the 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 pertaining thereto.  (Code Civ. Proc., § 128, subd. (a)(5).)  This authority necessarily includes disqualifying an attorney.  (Metro-Goldwyn Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1837–1838.)  The issue of disqualification ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.  (Id.)   

However, the paramount concern must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar and the recognized and important right to counsel of one’s choosing must yield to considerations of ethics that run to the very integrity of our judicial process.  (Id.)  Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court.  (Henriksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th 109, 113.)  In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand.  (Id.)   

Discussion

The City moves for an order disqualifying Ronald T. Vera, Esq. and the law firm of The Vera Law Group from representing Plaintiff because of a conflict of interest. More specifically, a familial conflict exists because Plaintiff’s attorney Ronald (Ron) Vera’s niece, Genevieve Amaro (“Amaro”), has worked at the city for about eleven years. (Motion pp. 3-4.)[1] Not only is there a familial relationship between Plaintiff’s Counsel and a City employee, but Plaintiff was Amaro’s direct supervisor. (Motion p. 4:6-9.) The potential conflict was discovered during the August 14, 2023 deposition of the City’s City Manager. On the record, Attorney Vera stated that he would feel best to withdraw as counsel of record “to avoid any potential conflicts of interests” and that he “hoped no one would ever discovery his family member worked for the City of San Dimas.” (Motion p. 4, citing Counts Decl., ¶9, Ex. A.)

In opposition, Plaintiff maintains that the City has offered “no evidence” that Amaro has information that she received from her employer. (Opp. pp. 2-3.)

Here, the court agrees with Plaintiff in that the mere hypothetical possibility that Amaro could divulge information is insufficient to create a conflict of interest, notably when there is no evidence that Amaro has any (immaterial or material) information.

The City (without an analysis) cites to Oaks Management Corporation v. Superior Court (2006) 145 Cal.App.4th 453 (Oaks), but the case is not instructive because it does not potential conflicts of interest based upon a familial relationship, and even assuming it is instructive, the case undermines the City’s argument. In Oaks, the issue on appeal was whether the trial court erred by disqualifying a law firm from representing the plaintiffs at trial, based on lender-borrower relationships between two of the firm's attorneys and a defendant that ended several years before this litigation commenced. The defendant argued the attorneys received his confidential financial information in conjunction with making loans, and the plaintiffs could use it against him here, e.g., in making settlement demands. The appellate court determined that the trial court erred because even if the plaintiff’s attorneys did receive the defendant's financial information in making loans, the plaintiff did not meet his burden of showing the information could give the plaintiffs an unfair advantage or affect the outcome of this litigation. (Id. at p. 457.) In determining so, the court reasoned that there was no direct conflict because none of the plaintiff’s attorneys sat on the board of directors of the defendant’s business and that the borrower-lender relationships with the private investors amounted to an arms-length relation such that there was no fiduciary relationship between the borrower (defendant) and the lender (the investors, one of whom was on the board of the plaintiff’s law firm). And when no attorney-client relationship exists “[m]ere exposure to the confidences of an adversary does not, standing alone, warrant disqualification.” (Id, quoting In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 589, emphasis added.)

Here, similarly, Amaro’s “mere exposure,” if any, to the confidences of the adversary (i.e., the City) standing alone does not warrant disqualification. The City has set forth no evidence that Amaro was privy to confidential discussions regarding Plaintiff’s termination or information regarding Plaintiff’s employment (e.g., his performance). Rather, the City bases its position based upon possibilities and hypotheticals. (See e.g., Motion p. 6:11-13 [Amaro “could have, and likely was privy to conversations or documents may be shared with Attorney Vera, which could be used advantageously against Defendant in the course of litigation.”], italics added; see also Reply p. 3:18-20 [“Any information Ms. Amaro could have, and likely was privy to, including conversations or documents, may be shared with Attorney Vera, which could be used advantageously against Defendant in the course of litigation.”], italics added.) Even assuming that Amaro is privy to information regarding the litigation, her superiors have extolled her work ethic and abilities and she enjoys her job, suggesting she has no incentive, reason, nor desire to jeopardize her job. (Id. at ¶6.)

Additionally, there are no illuminating facts as to the relationship between Plaintiff and Amaro. For example, did they work closely together? If so, how often? If so, for how long? In fact, based upon Counsel Vera’s declaration, Amaro may have only worked under Plaintiff for a short period of time because Amaro, who now works in the Public Works Department, previously worked in the Parks and Recreation Department, beginning as a student intern while she was in college, perhaps suggesting that Amaro’s tenure at the Parks Department was short-lived. (Vera Decl., ¶6.)[2]

Thus, in sum, the only evidence given is that Plaintiff and the niece worked together; nothing more, nothing less. Under the circumstances, disqualification would serve no legitimate purpose and would unfairly deprive Plaintiff of trial counsel of his choice, an attorney who is skilled in the relevant area of the law.[3] To the extent authority exists to support a holding otherwise, it was the City’s burden, not Plaintiff’s burden, to produce it. (Reply pp 3-4 [“Plaintiff's Opposition provides no supporting legal authority for his position.”].)

Conclusion

Based on the foregoing, as there is no suggestion that Plaintiff has acquired an unfair advantage that undermines the integrity of the judicial process, the court DENIES the motion.