Judge: David Sotelo, Case: 22STCV05934, Date: 2022-08-31 Tentative Ruling
Case Number: 22STCV05934 Hearing Date: August 31, 2022 Dept: 40
MOVING PARTY: Defendant Testan Law,
APC (Motion to Disqualify; Motion to Seal).
JOINDER: Plaintiff
Lesley F. Testan [Estate Representative or Alternative] (Motion to Seal).
Plaintiff Lesley F.
Testan, sues Defendants Susan Novell, Patricia Beyer, Testan Law, and Does
1-50, as well as Nominal Defendants Jeffrey Adelson, Lilly Shiu, Kathleen L.
Brundo, and Testan Corporate Center (“TCC”), on grounds that Defendants have
engaged in Breaches of Fiduciary Duty by not allowing Plaintiff her management
rights of TCC and by engaging fraudulent conduct concerning TCC property. Plaintiff
alleges Breach of Fiduciary Duty, Dissolution, Appointment of Receiver,
Violations of Business and Professions Code, and Declaratory Relief.
Today, Defendants Novell, Beyer, and Testan Law bring (1) an
Opposed Motion to Disqualify Plaintiff’s Attorney Stubbs Alderton &
Markiles (“SAM”) on the grounds that SAM represented Testan Law in similar
matters between September 2016 and May 2021 and (2) an Unopposed Motion to Seal
the Declarations and Compendium of Evidence in support of the Motion to Disqualify.
Plaintiff supports the seal request through Joinder.
The Court: (1) GRANTS the Motion to Seal the Declarations of
Susan Novell and Sa’id Vakili and the Defendants’ Compendium of Evidence, but (2)
DENIES the Motion to Disqualify Plaintiff’s Attorney because the Defendants’
evidence fail to show that SAM represented Testan Law or, that if SAM previously
represented Testan Law, SAM is now representing Plaintiff in matters
substantially similar to those alleged in SAM’s prior representation (of Testan
Law)--between September 2016 and May 2021.
Testan Law
(initially named Adelson, Testan, Brundo, Novell & Jimenez, a Professional
Corporation), is a civil litigation law firm that primarily handles defense
matters involving workers compensation, insurance, and general liability. The law
form was founded in 1996 by former (now deceased) President, CEO, and Senior
Managing Partner, Steven Testan.
In November 2013, with
other attorneys and directors/officers of Testan Law, Steven Testan formed TCC to
acquire, co-own, and co-manage 31330 Oak Crest Drive, Westlake Village,
California 91361 (the “TCC Building”). In December 2013, TCC purchased the TCC
Building.
In January 2014,
Testan Law leased approximately 60% of the TCC Building, conducting most of its
business operations from there pursuant to a Written Lease (“Lease”). The
remaining 40% of the TCC Building was occupied by other tenants pursuant to
leases in the exclusive possession of the Defendants.
Also, in January
2014 (specifically on January 1, 2014), TCC’s original Operating Agreement was
amended (“the “First Amendment”), establishing that Steven Testan held a 62%
majority interest in TCC. (Exhibit 1 to the Second Amended Complaint or “SAC.”)
On April 21, 2021, pursuant
to a jointly executed written assignment (the “Assignment”), Steven Testan
assigned his 62% membership interest in TCC to himself and his wife, Plaintiff
Lesley F. Testan, as Trustees of the S. and L. Testan Family Living Trust (the
“Testan Family Trust” or simply “Trust”). (Exhibit C to the SAC.) This
Assignment was made pursuant to Section 6.2(a) of the First Amendment to the
TCC Operating Agreement.
Steven Testan died
on May 8, 2021. Upon his passing, Lesley F. Testan became the sole Trustee of
the Testan Family Trust, under which authority she claims a 62% membership
interest in TCC.
Despite the
Assignment from Steven Testan to his Family Trust and her husband death, Susan
Novell, Patricia Beyer, Testan Law (particularly Novell) have refused to
provide Lesley Testan documents/information concerning the TCC Building, recognize
Lesley Testan’s interest in TCC or her position as Manager of TCC (a position
Steven Testan held until his death).
Lesley Testan also
alleges that: Defendants have failed to timely make the mortgage payment for
April 2022, resulting in a late fee of $1,346.11; even though the tax returns
for
TCC were due in
March 2022, Plaintiff Lesley Testan—who holds a 62% interest in TCC, with the
right to participate to protect her majority interest—was unable to complete
the tax returns because Defendant Novell refuses to furnish the financial and
related information concerning TCC and the Building; Defendant Novell is
putting TCC at risk of default on its loan, at risk of lapse in insurance
coverage, and at risk of tax issues with the Internal Revenue Service, the
California Franchise
Tax Board and/or other relevant taxing authorities; and, following Steven
Testan’s death, Novell instructed Defendant Patricia Beyer to sign an undated
and retroactive Addendum purporting to extend Testan Law’s Lease in the TCC
Building through December 31, 2023, subject to a confidentiality provision
holding that “Tenant acknowledges that the contents of this addendum and any
related documents are confidential information” and that “Tenant shall keep
such confidential information strictly confidential and shall not disclose such
confidential information to any person or entity other than Tenant’s financial,
legal and space planning consultants and any Proposed Transferee.”
Based on these
allegations, on February 16, 2022, Plaintiff sued Defendants Susan Novell,
Patricia Beyer, Testan Law, and Does 1-50, as well as Nominal Defendants
Jeffrey Adelson, Lilly Shiu, Kathleen L. Brundo, and TCC. The operative Second
Amended Complaint (“SAC”) alleges five causes of action:
(1) Breach of Fiduciary Duty, against (i) Defendants
Testan Law and Susan Novell, on the grounds that these defendants owed a
fiduciary duty to Plaintiff Lesley F.
Testan pursuant to Testan Law’s and Novell’s actions as property
managers of the TCC Building and that these defendants breached their duty by
failing to provide Lesley Testan with the rent roll, leases, and other
information and documents regarding the Building (and her 62% interest in TCC),
failing to relinquish control and management to TCC, collecting rent belonging
to TCC, denying Plaintiff’s right to access and control TCC’s bank accounts as
the rightful signatory, and failing to timely pay vendors and insurance and
(ii) against Defendants Susan Novell and Patricia Beyer on the grounds that these
defendants entered into the invalid purported Addendum to Testan Law’s Lease at
the TCC Building, without authority.
(2) Judicial Dissolution, Involuntary, of TCC,
against Defendants and Nominal Defendants, based on the impracticability of
running TCC in conformity with its Operating Agreement, the need to protect the
rights and interests of Lesley Testan, the deadlock in management of TCC, and
Defendant Novell’s unilateral control of TCC, which has permitted fraud,
mismanagement, abuse of authority, and unfairness toward Plaintiff Lesley
Testan.
(3) Appointment of Receiver, against Defendants and
Nominal Defendants, based on facts supporting a finding that Defendants failed
and neglected to carry on the business of TCC in a proper manner, necessitating
the need for the appointment of a receiver to take possession of the TCC, its
assets (including the Building), and wind down TCC’s dissolution;
(4) Violation of Business and Professions Code,
against Testan Law, on the grounds that Testan Law, without a proper real
estate broker or sales license from the California Department of Real Estate,
has acted as property manager for the TCC building by managing projects,
collecting rent, negotiating leases, and working with tenants, brokers,
contractors, accountants, and insurance brokers, while giving or intending to
give Testan Law reduced rent or other lease concessions.
(5) Declaratory Relief, against all Defendants,
seeking to resolve Plaintiff Lesley Testan’s right to participate in the
management of TCC, access information and documents, otherwise protect her
alleged 62% interest in TCC, and right to serve as Manager of TCC, among
others.
Beginning in April 2022 and through June 2022, Testan Law
corresponded with Plaintiff Lesley Testan’s counsel—Stubbs Alderton &
Markiles, LLP (“SAM”)—arguing that SAM was disqualified from representing
Plaintiff in this action due to SAM’s alleged prior representation of Testan
Law between September 2016 and May 2021. SAM addressed these questions by
responding that SAM only ever represented Steven Testan and that SAM had no
conflicts of interest based on any prior work with Testan Law.
In this Motion to Disqualify, Testan Law argues that SAM’s current
representation of Lesley F. Testan, considering SAM’s alleged prior
representation of Testan Law, is in clear violation of the California Rules of
Professional Conduct and other applicable law absent Testan Law’s informed
written consent, which the law firm has not provided.
The Court TAKES JUDICIAL NOTICE of the documents filed for
judicial notice in support of the Defendants’ Motion to Disqualify Plaintiff’s
Attorney, including the Complaint and FAC in this action, the Motion for Leave
to Amend Complaint by Plaintiff Lesley Testan and the papers and minute order
for a pending Motion to Appoint Receiver (filed by Plaintiff).
Plaintiffs’ Evidentiary Objections
Susan Novell Decl. OVERRULED.
Defendants’ Evidentiary Objections
Lesley F.
Testan Decl. OVERRULED
Jonathan
Testan Decl. Nos. 1-2: SUSTAINED
Juan
Antonio Estevez Decl. OVERRULED
Jonathon
Hodes Decl. No. 1: SUSTAINED
Motion to Seal – Moving Papers: “A party requesting
that a record be filed under seal must file a motion or an application for an
order sealing the record. The motion or application must be accompanied by a
memorandum and a declaration containing facts sufficient to justify the
sealing.” (Cal. Rules of Court, Rule 2.551, subd. (b)(1).)
Novell, Beyer, and Testan Law have made a motion, supported
by memorandum and declaration, to seal the Susan Novell Declaration, Sa’id
Vakili Declaration, and Compendium of Evidence filed by the Defendants in
support of their Motion to Disqualify SAM as counsel for Lesley Testan. (See
Seal Mot.) Plaintiff Lesley Testan has filed a Non-Opposition & Joinder to
the Motion to Seal. (See Aug. 18, 2022 Notice of Non-Opposition & Joinder.)
Motion to Seal – Service: “A copy of the motion or
application must be served on all parties that have appeared in the case. Unless
the court orders otherwise, any party that already possesses copies of the
records to be placed under seal must be served with a complete, unredacted
version of all papers as well as a redacted version.” (Cal. Rules of Court,
rule 2.551, subd. (b)(2).)
Here, the Proof of Service accompanying the Motion to Seal
shows service by overnight delivery and electronic transmission to Counsel for
Plaintiff Lesley Testan, SAM (i.e., Stubbs Alderton & Markiles, LLP.)
Motion to Seal – Lodging: Unless good cause exists, a
record to be filed under seal must be put in an envelope or other appropriate
container labeled ‘CONDITIONALLY UNDER SEAL,’ have a cover sheet affixed
thereto with an appropriate caption page stating the envelope contains a motion
to file a record under seal and be lodged in the sealed envelope with the Court.
(Cal. Rules of Court, rule 2.551, subds. (b)(4), (d)(2), (d)(4).)
Here, on or about June 28, 2022, the Defendants filed with
the Court, in sealed manila envelopes, the pertinent Susan Novell Declaration,
Sa’id Vakili Declaration, and Compendium of Evidence in support of Motion to
Disqualify Plaintiff’s Attorney.
Motion to Seal – Redacted and Unredacted Versions: If
necessary to prevent disclosure, any motion to seal and any supporting
documents must be filed in a public redacted version and lodged in a complete,
unredacted version conditionally under seal.¿ The cover of the redacted version
must identify it as “Public-Redacts materials from conditionally sealed record”
while the cover of the unredacted version must identify it as “May Not Be
Examined Without Court Order-Contains material from conditionally sealed
record.” (Cal. Rules of Court, rule 2.551, subd. (b)(5).)
Here, the Defendants filed a unredacted version of the
documents to be sealed with the Court on or about June 28, 2022 but failed to
similarly upload public redacted versions of the same documents onto the
Court’s electronic filing system or other public record. (See Seal Mot.
generally.) The Court, however, finds this deficiency insufficient to deny the
Motion to Seal, particularly where Plaintiff Lesley Testan through Joinder
supports the Defendants’ requested sealing of the record and where the
Defendants themselves recognize the deficiency, but advocate for its
forgiveness considering the heavy burden of sealing a record several hundreds
of pages long, most of which relates to evidence of attorney-client
communications (as detailed below). (See Seal Mot., 6:13-7:4.)
Motion to Seal – Findings: “The public has a First
Amendment right of access to civil litigation documents filed in court and used
at trial or submitted as a basis for adjudication.” (Savaglio v. Wal-Mart
Stores, Inc. (2007) 149 Cal.App.4th 588, 596 [citing NBC Subsidiary
(KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208-1209, fn.
25].) Therefore, before a trial court orders a record sealed, it must hold a
hearing and make express findings set forth in California Rules of Court, rule
2.550, subdivision (d):
(1) There exists an overriding interest
that overcomes the right of public access to the record;
(2) The overriding interest supports
sealing the record;
(3) A substantial probability exists
that the overriding interest will be prejudiced if the record is not
sealed;
(4) The proposed sealing is narrowly
tailored; and
(5) No less restrictive means exist to
achieve the overriding interest.
(Id.; Cal. Rules of Court, rule 2.550, subd. (d).)
A court’s order allowing documents to be filed under seal
must contain express factual findings establishing these five factors. (Cal.
Rules of Court, rule 2.550, subd. (d).)
Here, after examining the Defendant’s Motion to Seal the
Susan Novell Declaration, Sa’id Vakili Declaration, and Compendium of Evidence
in support of Motion to Disqualify Plaintiff’s Attorney (with Plaintiff Lesley
Testan supporting the Motion to Seal through Joinder), the Court first finds
that the five necessary elements of sealing a record have been established for
the Compendium of Evidence filed by the Defendants.
First, the Compendium of Evidence in support of Motion to
Disqualify Plaintiff’s Attorney involves an overriding interest overcoming the
right of the public to access the record. To the Defendants, these documents
“involve communications between SAM and its attorneys, on the one hand, and
Testan Law and its officers, directors, employees, and agents, on the other
hand, which include detailed billing invoices from SAM to Testan Law.” (Seal
Mot., 4:14-17; see Seal Mot., 4:9-7:19.) Defendants thus argue that the
documents to be sealed implicate the attorney-client privilege because they
show numerous communications between SAM’s staff and Testan Law’s staff
imputing and divulging an attorney-client relationship. (See Seal Mot.,
4:18-6:2.) Plaintiff Lesley Testan joins the Motion to Seal on the grounds that
the documents to be sealed implicate Steven Testan’s attorney-client privilege
with SAM. (Seal Opp’n, 1:12-2:3.) Either way, all the parties agree that
attorney-client privilege is invoked by the Defendants’ evidence. A review of
the Compendium of Evidence leads this Court to agree.
Second, the overriding interest supports sealing the record
because the records to be sealed touch upon the overriding interest of
confidentiality in attorney-client communications directly, which would be made
public if not sealed (provided a public copy is first provided). (See Seal
Mot., 6:3-7.)
Third, substantial prejudice would result if the Compendium
of Evidence is not sealed and confidential attorney-client communications
between SAM and either Testan Law or Steven Testan (as clients) are divulged to
the public through the record of this action because the Court will not be able
to “un-ring” the bell of disclosure if this information is first released to
the public and retracted only thereafter. (See Seal Mot., 6:7-12.)
Fourth, the proposed sealing of the Compendium of
Evidence—even if wholesale—is sufficiently narrowly tailored insofar as it
seeks the redaction of the communications between SAM and Testan Law or Steven
Testan.
Last, there is no less restrictive means of protecting the
attorney-client interest implicated in these documents (see discussion infra
re: nature of attorney-client interest) because any disclosure of the
Compendium of Exhibits could lead to public disclosure of the email
communications at issue.
The Motion to Seal is thus GRANTED as to the Compendium of
Evidence filed by the Defendants in support of their Motion to Disqualify
Plaintiff’s Attorney.
To the extent that the Defendants seek to seal the
Declarations of Susan Novell and Sa’id Vakili, the Court notes that sealing the
entirety of these documents would further the object of protecting
attorney-client communications as described in the foregoing discussion (and
described in more detail infra), for which reason(s) the Court GRANTS the
Motion to Seal as to these documents as well.
The Court briefly notes that Plaintiff Lesley Testan must
file a separate Motion to Seal her Opposition and supporting documents rather
than tack on her request for sealing to her Non-Opposition / Joinder to the
Motion to Seal (See Aug. 18, 2022 Non-Opposition, 1:26-2-3) and any such
requested made pursuant to the August 18, 2022 Non-Opposition notice is DENIED.
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., § 126, subd. (a)(5).) This authority necessarily includes
disqualifying an attorney.¿(Metro-Goldwyn Mayer, Inc. v. Tracinda Corp.
(1995) 36 Cal.App.4th 1832, 1837-38.) The issue of disqualification ultimately
involves a conflict between the client’s right to counsel of their choice and
the need to maintain ethical standards of professional responsibility. (Ibid.)
In ruling on a motion to disqualify, the court should weigh:
(1) the party’s right to counsel of choice; (2) the attorney’s interest in
representing a client; (3) the financial burden on a client of change of
counsel; (4) any tactical abuse underlying a disqualification motion; and (5)
the principal that the fair resolution of disputes requires vigorous
representation of parties by independent counsel. (William H. Raley Co. v.
Superior Court (1983) 149 Cal.App.3d 1042, 1048.)
Whether an attorney should be disqualified is a matter
addressed to the sound discretion of the trial court. (Henriksen v. Great
American Savings & 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. (Ibid.) 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. (Metro-Goldwyn Mayer, Inc., supra, 36 Cal.App.4th at pp.
1837-38.)
Successive Representation: Defendants argue that SAM
should not be allowed to represent Plaintiff because SAM previously represented
Testan Law between September 2016 and May 2021.
“[W]here a former client seeks to have a previous attorney
disqualified from serving as counsel to a successive client in litigation
adverse to the interests of the first client, the governing test requires that
the client demonstrate a ‘substantial relationship’ between the subjects
of the antecedent and current representations.” (Flatt v. Superior Court
(1994) 9 Cal.4th 275, 283 [emphasis in original].)
“Where the requisite substantial relationship between the subjects of
the prior and the current representations can be demonstrated, access to
confidential information by the attorney in the course of the first
representation (relevant, by definition, to the second representation) is presumed
and disqualification of the attorney’s representation of the second client is
mandatory; indeed, the disqualification extends vicariously to the entire firm.”
(Id. [emphasis in original].) “The former client need not
establish that the attorney actually possesses confidential information.” (In
re Marriage of Zimmerman, supra, 16 Cal.App.4th at 563.) “It is the
possibility of the breach of confidence, not the fact of an actual breach that
triggers disqualification.” (Ibid.)
Rule 1.9 of the Rules of Professional Conduct, incorporates
the substantial relationship test and provides that “[a] lawyer who has
formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the former client
unless the former client gives informed written consent.” (Cal. Rules of Prof.
Conduct, rule 1.9, subd. (a).)
Comment 3 to Rule 1.9 provides that “[t]wo matters are ‘the
same or substantially related’ for purposes of this rule if they involve a
substantial risk of a violation of one of the two duties to a former client
described … in Comment [1],” e.g., when “(i) … the matters involve the same
transaction or legal dispute or other work performed by the lawyer for the
former client; or (ii) the lawyer normally would have obtained information in
the prior representation that is protected by Business and Professional Code
section 6068, subdivision (e) and rule 1.6, and the lawyer would be expected to
use or disclose that information in the subsequent representation because it is
material to the subsequent representation.” (Id., rule 1.9,
comment 3.) Comment 1 provides, in relevant part that “[t]he lawyer may not (i)
do anything that will injuriously affect the former client in any matter in
which the lawyer represented the former client, or (ii) at any time use against
the former client knowledge or information acquired by virtue of the previous
relationship.” (Id., rule 1.9, comment 1.)
The Court considers three (3) factors in applying the
substantial relationship test: “(1) factual similarities between the two
representations, (2) similarities in legal issues, and (3) the nature and
extent of the attorney’s involvement with the case and whether he was in a
position to learn of the client’s policy and strategy.” (Adams v.
Aerojet-General Corp. (2001) 86 Cal.App.4thh 1324, 1332.) The subject of a
current representation is substantially related to the subject of a prior
representation only if the issues are sufficiently similar to support a
reasonable inference that the attorney during the prior representation was
likely to have obtained confidential information material to the current
representation. (Fremont Indemnity Co. v. Fremont General Corp. (2006)
143 Cal.App.4th 50, 67.) The evidence must show that the attorney acquired
confidential information and not merely general information about the former
client. (Khani v. Ford Motor Co. (2013) 215 Cal.App.4th 916, 921-922.) The
substantial relationship test requires comparison not only of the legal issues
involved in successive representations, but also of evidence bearing on the
materiality of the information the attorney received during the earlier
representation. (Id.)
The Court determines there is insufficient evidence demonstrating
that an attorney-client relationship actually existed between SAM and Testan
Law.
The Factual Background of the Motion to Disqualify provides
most of the facts supporting the attorney-client relationship alleged by Testan
Law. (See Disqualify Mot., 8:10-11:24.) However, Defendants’ Legal Argument
section of the Motion to Disqualify only cursorily applies these facts to the
law, i.e., Defendants spend little to no time explaining with sufficient
clarity how the facts supporting an attorney-client relationship actually
relate to Rule 1.9. (See Disqualify Mot., 14:1-17; see also Disqualify Opp’n, 7:1-10:7.)
Instead, Defendants simply lightly brush over apparently self-evident reasons why
this Court should recognize an attorney-client relationship between SAM And
Testan Law. (See Disqualify Mot., 14:1-17.)
The remainder of Defendants’ argument focuses on why
Plaintiff’s evidence does not show that an attorney-client relationship did not
exist between SAM and Testan Law or reasons why SAM is now working on a matter
substantially related to “prior representation” of Testan Law by SAM. (See
Disqualify Mot., 14:18-21:19.)
A review of Exhibits filed in Defendants’ Compendium of
Evidence does not support the Motion to Disqualify. While the Compendium show--as
in Exhibits G--numerous emails between SAM and Testan Law employees, nowhere do
the emails clearly show an attorney-client relationship other than that SAM
occasionally billed Testan Law for legal work, perhaps indirectly involving Testan
Law, but for the main purpose of advancing the interest of Steven Testan
himself, rather than the Testan Law firm. Exhibits H fall within the same
ambit.
Further, to the extent that any attorney-client relationship
existed between SAM and Testan Law existed, it does not appear to bear a
substantial relationship with SAM’s representation of Lesley Testan.
Here, the SAC’s Second through Fifth Causes of Action seek
to dissolve TCC (including the sale of the TCC Building) or seek to clarify the
relationship between the parties as to the management of TCC. (See SAC, ¶¶
28-43.) Only the First Cause of Action for Breach of Fiduciary Duty brings volitional
allegations against the Defendants, including that Testan Law and Susan Novell
have wrongfully taken over TCC’s operations to the exclusion of Plaintiff
Lesley F. Testan or that Susan Novell and Patricia Beyer created a fraudulent
addendum to Testan Law’s Lease in the TCC Building (including the disputed
confidentiality provision therein). (SAC, ¶¶ 24-27.)
Within this framework, only Exhibits J in Defendants’
Compendium of Evidence bear a relationship to the allegations in this lawsuit: an
email from a SAM attorney to Defendant Beyer providing a PDF copy of a lease
agreement for a different tenant in the TCC Building, from which the
confidentiality provision at issue was drawn. (See Complaint, ¶¶ 22-23.)
However, Defendants’ own Reply provides clarity as to why
this piece of evidence is irrelevant: Patricia Beyer herself declares that she
drafted the Lease Addendum’s confidentiality provision by copying and pasting a
similar confidentiality provision drafted by SAM as part of the lease agreement
for a different tenant in the TCC Building. (See Reply, Beyer Decl., ¶¶ 5-6.) Such
an argument by Defendants misses the point. The thrust of the SAC’s First Cause
of Action for Breach of Fiduciary Duty against Novell and Beyer rests on the
allegations that Novell and Beyer drafted the Addendum to the Lease without
authorization rather than in drafting the confidentiality provision.
To the extent that Defendants argue that Exhibits G show
that SAM directly represented Testan Law in the past, the Court notes that the
Declarations and evidence provided by Jonathan Hodes (the primary attorney
listed in the billing records at Exhibits G) and by CPA Juan Antonio Esteves,
convince the Court that the work undertaken in the billing records at Exhibit G
was performed on behalf of Steven Testan, even if the work was paid for by
Testan Law.
The Court determines insufficient grounds exist to find that
an attorney-client relationship between SAM and Testan Law or if it existed, is
substantially related to matters in this lawsuit.
Defendant Testan Law, APC’s Motion to Conditionally File
Records Under Seal in Connection with Motion to Disqualify is GRANTED because a
substantial interest in attorney-client communications supporting a seal order overrides
the public interest in access to the Susan Novell Declaration, Sa’id Vakili
Declaration, or Compendium of Evidence, substantial prejudice will be
occasioned by the release of this information, and the request for sealing is
sufficiently narrowly tailored in circumstances where no less restrictive means
of achieving the interest of protecting privileged communications exists.
Defendant Testan Law, APC’s Motion to Disqualify Plaintiff’s
Attorneys Stubbs Alderton & Markiles, LLP is DENIED because the Defendants’
briefing and evidence failed to show that an attorney-client relationship was
established between SAM and Testan Law any time between September 2016 and May
2021, and because, even if such a relationship existed, the nature of
representation is not substantially similar to the issues presently before the
Court.