Judge Curtis A. Kin, Case 21STCV33568 2023-02-02 Tentative Ruling

Judge: Curtis A. Kin, Case: 21STCV33568, Date: 2023-02-02 Tentative Ruling

Case Number: 21STCV33568 Hearing Date: February 2, 2023 Dept: 72

MOTION TO DISQUALIFY COUNSEL

Date: 2/2/23 (8:30 AM)

Case: Lizabeth Gralnik v. DXC Technology, Inc. et al. (21STCV33568)

TENTATIVE RULING:

Defendants DXC Technology, Inc. and Mary Finch’s Motion to Disqualify Counsel is DENIED.

All evidentiary objections are OVERRULED.

Defendants DXC Technology, Inc. (“DXC”) and Mary Finch move to disqualify Employee Law Group and Barrera & Associates as counsel for plaintiff Lizabeth Gralnik.

“A trial court has the authority to disqualify attorneys who violate professional ethical rules because every court has the power to control, ‘in furtherance of justice,’ the conduct of persons connected with its proceedings.” (Jackson v. Ingersoll-Rand Co. (1996) 42 Cal.App.4th 1163, 1166, citing CCP § 128(a)(5).) At issue in the instant motion is California Rule of Professional Conduct 4.2(a), which provides: “In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.” “Contact with represented parties is proscribed to preserve the attorney-client relationship from an opposing attorney's intrusion and interference.” (Jackson, 42 Cal.App.4th at 1167 [discussing precursor to Rule 4.2].)

Defendants argue that counsel for plaintiff, Debra Lauzon, communicated with John Rassieur, plaintiff’s former supervisor, while he was employed by defendant DXC Technology, Inc. During his deposition on September 21, 2022, Rassieur was asked: “Were you still employed with DXC when you talked to her [Lauzon]?” (Matta Decl. ¶ 4 & Ex. 2 at 129:6-7.) Rassieur responded: “I think early on I was, yes. And to be clear, there was this whole ‘who's representing me’ thing that went on.” (Id. at 129:8-10.)

However, Rassieur later corrected his testimony to state that his first contact with Lauzon was by email on February 16, 2022. (Barrera Decl. ¶ 3 & Ex. 1 [errata sheet].) This assertion is consistent with Lauzon’s recollection that she first contacted Rassieur on February 11, 2022. (Lauzon Decl. ¶¶ 4, 12 & Ex. 3 [redacted notes taken by Lauzon containing date of 2/11/22].)

It is undisputed that Rassieur’s employment with DXC ended on October 1, 2021. (Barrera Decl. ¶¶ 3, 4 & Ex. 1 at 12:20-21; see also Matta Decl. ¶ 7 & Ex. 5 [LinkedIn profile with last day of employment as October 2021].) Rule 4.2, governing communications with represented corporations, states: “In the case of a represented corporation…this rule prohibits communications with: [¶] (1) A current officer, director, partner, or managing agent of the organization; or (2) A current employee, member, agent, or other constituent of the organization, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.” (Rule 4.2(b).) With respect to represented corporations like DXC, Rule 4.2(b) proscribes communications with current employees or managing agents, but not with individuals who were formerly employed or affiliated with the corporation.

On February 25, 2022, defense counsel sent an email to Rassieur indicating that they would represent him. (Matta Decl. ¶ 2 & Ex. 1.) On April 9, 2022, Rassieur sent an email to defense counsel declining their representation, stating that he was a “witness, not a litigant.” (Matta Decl. ¶ 6 & Ex. 4.) Both Lauzon and Rassieur maintain that Lauzon immediately ended her communication with him on March 11, 2022 upon learning that defense counsel would represent him. (Lauzon Decl. ¶ 5; Matta Decl. ¶ 4 & Ex. 2 at 129:8-11, ¶ 5 & Ex. 3 [email from Lauzon on 3/11/22 stating that Rassieur just informed her that defense counsel would represent him during deposition].)

Defendants present no evidence to demonstrate meaningfully that Lauzon spoke with Rassieur either while he was employed with DXC or between February 25 and April 9 of 2022 (when defense counsel represented him). Accordingly, Lauzon’s communications were not prohibited by Rule 4.2.

In Reply, defendants intimate that they will file a motion to strike the errata sheet in which Rassieur changed some of his answers at deposition, because it was purportedly untimely submitted to the court reporter or allegedly a sham to avoid disqualification. No such motion has been filed, and defendants present no cause for a continuance of the instant motion for such.

With respect to timeliness, under CCP § 2025.520(b), Rassieur had 30 days from receiving notice that the deposition transcript is available for reading to review and make changes to his answers. The transcript was sent to Rassieur on November 16, 2022. (Yossefi Decl. ¶ 5 & Ex. 2.) Rassieur sent the errata sheet to the reporter on December 14, 2022, within 30 days of November 16, 2022. (Yossefi Decl. ¶ 6 & Ex. 3.)

With respect to defendants’ assertion that the errata sheet is a sham, while an attorney from Barrera & Associates, APC, co-counsel for plaintiff, provided Rassieur a form to change answers to the deposition (Yossefi Decl. ¶ 6 & Ex. 3 [email dated 11/16/22], defendants present no evidence conclusively establishing that Rassieur misrepresented the date of his first contact with Lauzon in the errata sheet. Indeed, Rassieur notified the court reporter, with counsel for plaintiff cc’ed, that he read the deposition transcript and requested help on how to clarify his deposition answers. (Ibid.) Rassieur signed the deposition transcript, attesting to the accuracy of the transcript except as to items noted in the errata sheet. Under these circumstances, the Court declines to interfere in plaintiff’s right to counsel of her choice. (See Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 425 [disqualification motions involve conflict between right of client to choose counsel and need to maintain ethical standards of professional responsibility].)

In the alternative, invoking California Rule of Professional Conduct 8.5, defendants maintain that Lauzon’s communications with Rassieur are governed by the Minnesota Rules of Professional Conduct, which may prohibit an attorney from contacting former managers of a corporate defendant when the communication will likely elicit privileged or confidential information. The parties do not dispute that Rassieur resides in Minnesota. Notably, however, California Rule of Professional Conduct 8.5(b), explicitly states in relevant part: “In any exercise of the disciplinary authority of California, the rules of professional conduct to be applied shall be as follows: [¶] (2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct.”

By its explicit terms, the provisions of Rule 8.5(b) do not apply here. This is not a disciplinary proceeding of the State Bar Court. (See Comment to Rule 8.5, citing Bus. & Prof. Code § 6077 [“The conduct of a lawyer admitted to practice in California is subject to the disciplinary authority of California”]; Bus. & Prof. Code § 6077 [State Bar Court of California disciplines attorneys for willful breach of rules of professional conduct].) Because Rule 8.5(b) is inapplicable, defendants fail to demonstrate that the Minnesota Rules of Professional Conduct have any bearing analysis or relief sought here.

For the foregoing reasons, the motion is DENIED.

Citing CCP § 2023.030(a), which pertains to a misuse of the discovery process, plaintiff requests the imposition of monetary sanctions. CCP § 2023.030 provides for sanctions “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” This is not a motion to compel any type of discovery. It is a motion for disqualification. Plaintiff cites no statute in the Civil Discovery Act providing for monetary sanctions on a motion for disqualification, no matter how improvident it may have been to bring such a motion. In any event, based on Rassieur’s original deposition testimony, defendants’ motion was not so patently frivolous as to merit sanctions here.