Judge: Daniel S. Murphy, Case: 22STCV00186, Date: 2024-12-02 Tentative Ruling

Case Number: 22STCV00186    Hearing Date: December 2, 2024    Dept: 32

BACKGROUND

            This action was initiated on January 3, 2022 by multiple individual Plaintiffs seeking injunctive relief and damages for allegedly uninhabitable conditions in rental units maintained by Defendants. The Defendants each allegedly owned or managed the property at various times throughout Plaintiffs’ tenancy. The operative Fourth Amended Complaint was filed on November 15, 2023.

            The Fourth Amended Complaint adds defendants Baks Investments LLC, Michael Bakhshi, AMA Flora LLC, and Goodland Holding (collectively, Moving Parties) as the latest owners of the property. In August 2023, Moving Parties brought unlawful detainer actions (UD case) against various tenants and were represented by the Law Office of Dennis P. Block (Block). The tenants were represented by Kenneth Chiate (Chiate), who also represents Plaintiffs in this action. Moving Parties claim that on October 2, 2023, Chiate spoke with Defendant Michael Bakhshi (Bakhshi) for thirty-nine minutes on the phone without an attorney present. Moving Parties contend that Chiate obtained facts and admissions from Bakhshi during the phone call which were used to file the Fourth Amended Complaint in this case.

On November 4, 2024, Moving Parties filed the instant motion to disqualify Chiate and his law firm, Quinn Emanuel. Plaintiffs filed their opposition on November 15, 2024. Moving Parties filed their reply on November 19, 2024.       

LEGAL STANDARD

“A trial court's authority to disqualify an attorney derives from its inherent power 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.’” (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 47, quoting Code Civ. Proc., § 128(a)(5).) “The power is frequently exercised on a showing that disqualification is required under professional standards governing … potential adverse use of confidential information.” (Ibid.) “When ruling on a disqualification motion, 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.” (Id. at pp. 47-48.)

DISCUSSION

I. Prejudice to the Proceedings

“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.” (Cal. Rules of Prof’l Conduct, Rule 4.2(a).) Moving Parties contend that Chiate violated Rule 4.2 by communicating directly with Bakhshi without attorney consent.

            However, even if Rule 4.2 has been violated, a court may refuse to disqualify counsel if “there is no evidence that any confidential information was disclosed to . . . counsel, and disqualification is not otherwise necessary to preserve the integrity of the judicial process.” (La Jolla Cove Motel & Hotel Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773, 790.) “The purpose of disqualification is not to punish a transgression of professional ethics.” (Baugh v. Garl (2006) 137 Cal.App.4th 737, 744.) “Disqualification is only justified where the misconduct will have a continuing effect on judicial proceedings.” (Ibid.) 

            Here, Moving Parties present no evidence of the substance of the alleged conversation between Chiate and Bakhshi. Bakhshi avers that “[d]uring the phone call, Mr. Chiate elicited facts and admissions from me regarding the issues raised in the Plaintiffs’ Operative Complaint under the guise of preventing the existing litigation.” (Bakhshi Decl. ¶ 10.) However, Chiate denies that he obtained information from any conversation with Bakhshi that was not already disclosed in other depositions or discussions with counsel present. (Chiate Decl. ¶ 16.) Moving Parties do not specify which facts from the Fourth Amended Complaint were obtained from the alleged October 2, 2023 conversation, much less demonstrate that those facts were confidential or not obtained through other discussions with counsel present.  

Thus, assuming Chiate violated Rule 4.2 by communicating directly with Bakhshi, there is no indication that Chiate obtained any confidential information leading to an unfair advantage in this action. Nor is there any indication that the violation will have a continuing effect on the judicial proceedings.    

II. Unreasonable Delay        

Additionally, “a disqualification motion can be waived if not timely filed.” (City and County of San Francisco v. Cobra Solutions, Inc. (2014) 232 Cal.App.4th 468, 473.) “The delay has to be extreme or unreasonable before it operates as a waiver. It has been held that when the party opposing the motion has made a prima facie showing of unreasonable delay causing prejudice, disqualification should not be ordered, and the burden shifts to the moving party to justify the delay.” (Id. at pp. 473-74.)

Here, Moving Parties waited one year after the filing of the Fourth Amended Complaint to file this motion. Moving Parties have known of the alleged phone call with Chiate from the outset, and have known since November 2023 what allegations are contained in the operative complaint. Waiting one year to file this motion is unreasonable. The delay is “an indication that the alleged breach of confidentiality was not seen as serious or substantial by the moving party.” (See Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 847.) The fact that Bakhshi did not inform Moving Parties’ counsel about the phone call until October 25, 2024 is not an excuse. (See Ryan Decl. ¶ 3.) Bakshi, the moving party, had knowledge of the phone call, and his knowledge is imputed to counsel. Bakhshi cannot avoid waiver by simply withholding information from his attorney. It would be prejudicial to Plaintiffs to have their attorney disqualified mere months away from trial, on grounds that have been apparent for at least a year.

            In sum, disqualification is unwarranted because there is no threat of ongoing harm to the proceedings, and Moving Parties have waived their right to move for disqualification.

CONCLUSION

            The motion to disqualify Kenneth Chiate and Quinn Emanuel is DENIED.