Judge: Frank M. Tavelman, Case: 23BBCV01032, Date: 2025-04-11 Tentative Ruling

Case Number: 23BBCV01032    Hearing Date: April 11, 2025    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO DISQUALIFY COUNSEL

ALLEGATIONS: 

Elizabeth Folk (Folk) and Mark Blanchard (Blanchard) (collectively Plaintiffs) bring this action against Cabrini Villas Homeowners Association (Defendant). Plaintiffs allege that, on November 17, 2022, Folk suffered a fall at 9773 Via Nola Ln. Burbank, California 91504 (the Subject Premises). Plaintiffs further allege that the Subject Premises is owned and maintained by Defendant and that Defendant’s failure to maintain the premises resulted in a dangerous condition. Plaintiffs state three causes of action for (1) Negligence, (2) Premises Liability, and (3) Loss of Consortium.

Before the Court is Defendant’s motion to disqualify Plaintiffs’ counsel. Defendant’s counsel argues that Plaintiffs’ counsel improperly communicated directly with Defendant without permission. Plaintiffs’ counsel responds that there was no such communication, and that Defendant has brought this motion as a way to disadvantage Plaintiffs in the upcoming trial by leaving them without counsel.

ANALYSIS: 

Facts

On January 22, 2025, the parties participated in mediation of this matter. (Booth Decl. ¶ 3.) Unfortunately, the parties did not reach a resolution.

On January 27, 2025, Plaintiff’s counsel Hripsime Martirosyan (Martirosyan) sent an email entitled “Final Global Policy Limits Demand in the Matter Of Elizabeth Folk and Mark Blanchard v. Cabrini Villas HOA” (Booth Decl. Exh. A.) The recipients of this email were Defendant’s Counsel Eileen Booth (Booth), insurance adjuster Jessica Hawkins, and the President of Cabrini Villas HOA Andranik Aslanyan (Aslanyan). (Id.) This letter contains the following language:

This demand is issued to avoid exposing Cabrini Villas HOA to the substantial and avoidable consequences of a jury verdict in excess of policy limits. These consequences include but are not limited to: bankruptcy, public record of judgment, wage garnishment, levies on bank accounts and other assets. Defense counsel has a duty to educate their insured client regarding these risks and to ensure the Defendant is informed of the independent counsel rights under California Law. Failure to do so may give rise to a valid claim against the insurer and defends counsel for negligent representation or bad faith conduct. 

Mr. Aslanyan, given the history of this case, we have significant concerns about whether you or any representative of the HOA were ever informed of the multiple opportunities to settle this case. If the answer is no, then it is highly likely critical duties were violated. In such a scenario, you and/or the HOA may have valid grounds to retain independent counsel to represent the HOA’s interests against your insurance company.

Although the damages in this case far exceed the [redacted] policy limits…it is critical for you and/or other representatives of the HOA to seek advice from independent counsel.

(Booth Decl. Exh. A, p. 2.)

The letter then goes on to recommend three attorneys which Aslanyan could contact to serve as independent counsel. (Id.)

Defendant’s counsel contends this letter was an improper communication with her client, in disregard of State Bar of California Rules of Professional Conduct Rule 4.2(a), which reads as follows:

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.

Defendant’s counsel asserts that Aslanyan is a representative for Defendant known to Plaintiff’s counsel and that she never provided consent for him to be contacted. (Booth Decl. ¶ 2, 8.)

Plaintiff’s counsel Ryan Block (Block) and Martirosyan both submit declarations in opposition to the motion. Block and Martirosyan both state that they believed they had authorization from Booth to contact Aslanyan directly. Block and Martirosyan both recount a phone call with Booth from August of 2024. (Block Decl. ¶ 2.) Plaintiff’s counsel states that Booth was frustrated with the insurance carrier’s lack of participation in mediation and settlement negotiations. (Block Decl.¶ 3.) Apparently, Martirosyan suggested that any future settlement demands, “should include both the HOA and the adjuster, so that the HOA would be aware of the litigation risks and perhaps help urge the adjuster to act.” (Block Decl. ¶ 10.) Plaintiff’s counsel states that Booth responded, “Yeah, I hear you,” from which Plaintiff’s counsel understood that it was okay to directly contact Defendant from that point forward. (Id.)

Discussion

As explained in detail below, the Court finds that Plaintiffs lack standing to bring this motion. Although trial courts have discretion to disqualify an attorney upon motion, case law makes clear that the moving party must have standing before such discretion is proper.

“A trial court's authority to disqualify an attorney derives from the power inherent in every 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.’” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 [internal citations omitted].) “Disqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. 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. [internal citations omitted].)

A “standing” requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney. (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.) In other words, the general rule is that motions to disqualify counsel by someone other than a client or former client are not permitted. Although they do not discuss the standing requirement, Defendant does cite to Great Lakes in support of their argument that this Court has the authority to disqualify Plaintiff’s counsel. The Court finds that a closer reading of Great Lakes belies Defendant’s argument that their disqualification motion is an appropriate mechanism by which the Court may exercise that authority in this case.

Great Lakes concerned an action by a contractor, Hampton Builders, against their client, the Burmans, concerning allegedly libelous statements the Burmans posted online about Hampton Builder’s work on a remodel of their home. (Great Lakes, supra, at 1350.) The Burmans cross-complained for breach of contract and Hampton Builders cross-complained against a subcontractor, Ted Kipers. (Id.) Throughout the litigation, the Burmans and Kipers were both represented by counsel Graham and Associates. (Id.) This is because Kipers had placed a lien on the Burman’s property when he had not received payment from Hampton. (Id. at 1352.) Of particular concern to the case was an indemnification provision in Kipers’ contract with Hampton Builders. (Id.) Under the contract, Kipers would be obligated to indemnify Hampton builders if the Burmans prevailed in their cross-complaint. (Id. at 1358.)

The issue on appeal in Great Lakes was the trial court’s granting of Hampton Builder’s motion to disqualify Graham and Associates as counsel for the Burmans and Kipers. (Id. at 1351.) Hampton Builder's counsel believed Kipers’ responses during his deposition revealed he had not been informed about the potential conflict arising from Graham's dual representation of Kipers and the Burmans. (Id. at 1352.) Hampton Builders conceded that they did not meet the general requirement for standing, as they had no former or current attorney/client relationship with Graham and Associates. (Id. at 1353.) Regardless, Hampton Builders successfully argued at that trial court level that they had standing to bring the motion pursuant to Colyer v. Smith (C.D.Cal.1999) 50 F.Supp.2d 966. (Id.)

Before analyzing the veracity of an exception to the general standing requirement, the Great Lakes court first addressed Hampton Builder’s argument that C.C.P. § 128(a)(5) granted a trial court the authority to dispense with the standing requirement all together. The court explicitly rejected this argument, finding that the code section only provided authority to grant disqualification motions brought by a party who meets the standing requirements. (Id. at 1357.)

Concerning whether the standing requirement was met, the Court of Appeal framed the question as, “…whether a legal exception permits Hampton and designers to disqualify Graham from jointly representing the Burmans and Kipers based upon a conflict that implicates the duty of loyalty owed to Graham's client.” (Id. at 1354.) The court concluded that, “no exception exists that permits a non-client without a legally cognizable interest to disqualify opposing counsel.” (Id.) The court found that while Colyer was not legally binding, it presented a “minority view” that a non-client might have standing to bring a disqualification motion where they could demonstrate a “personal stake” in the motion to disqualify opposing counsel that is sufficient to satisfy the standing requirements of Article III of the United States Constitution. (Id. at 1357.)

Colyer itself concerned a motion brought by a plaintiff to disqualify defense counsel on grounds that their current representation of the defendant created a conflict of interest with a former client. (Colyer, supra, 50 F.Supp.2d at 968.) The Colyer court ultimately found the moving party lacked standing under the minority view, as the moving party did not demonstrate “the invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” (Id. at 973.) The court further held that the, “broad interest in the administration of justice was insufficiently concrete and particularized to support a finding of standing.” (Id.) 

In examining the minority view in Colyer, the Great Lakes court discussed a variety of California cases in which an exception to the attorney/client standing requirement had been recognized. The court noted that, “…absent an attorney-client relationship, the moving party must have an expectation of confidentiality.” (Id. at 1356, citing DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829.) “Thus, some sort of confidential or fiduciary relationship must exist or have existed before a party may disqualify an attorney predicated on the actual or potential disclosure of confidential information. (Id., citing Dino v. Pelayo (2006) 145 Cal.App.4th 347.)

Ultimately the Great Lakes court concluded that Hampton had not demonstrated, “…any legally cognizable interest that [was] harmed by Graham's joint representation of their adversaries.” (Id. at 1358.) Any breach of the duty of loyalty by the Burman’s and Kipers counsel would have no effect on a legal interest held by Hampton. “If either party is getting bad advice in connection with their joint representation, then the issue is between Graham and his clients.” (Id. at 1359.)

Shortly after Great Lakes, the Third District Court of Appeal issued its decision in Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197. There, the Court of Appeal affirmed the trial court’s grant of a motion to disqualify a child’s grandfather from representing the child in an action for custody. Kennedy found that:

When no attorney-client relationship exists mere exposure to the confidences of an adversary does not, standing alone, warrant disqualification. However, disqualification may be considered where 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. Thus, disqualification is proper where, as a result of a prior representation or through improper means, there is a reasonable probability counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation.

(Kennedy, supra, 201 Cal.App.4^th at 1205, citing Oaks Management Corporation v. Superior Court (2006) 145 Cal.App.4th 453.)

Despite the fact that the moving party (the mother of the child) had no client relationship with the grandfather or his firm, Kennedy found standing appropriate. (Id. at 1206.) Kennedy found the fact that the grandfather and the firm likely had confidential information on the mother meant that their continued representation would materially prejudice the mother’s right to fair adjudication. (Id. at 1206.) The court also relied upon multiple and interconnected family entanglements that resulted in a strong appearance of impropriety and undermined the integrity of the judicial system. (Id. at 1211.)

At first blush, Kennedy appears to state that a new standard wherein a party has standing to disqualify an opposing party’s counsel in any instance where it is genuinely likely that the conduct would affect the outcome of the litigation. Kennedy appears to expand upon the general standing requirement to state that a disqualification motion is proper where the moving party demonstrates and ethical breach which is “manifest and glaring” such that it “infects the litigation in which disqualification is sought that it impacts the moving party's interest in a just and lawful determination of their claims, a nonclient might meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest or other ethical violation.” (Id. at 971-972, citing Colyer supra at 966.) However, subsequent appellate decisions have made clear that the rule has not been made so broad.

In Moreci v. Scaffold Solutions, Inc. (2021) 70 Cal.App.5th 425, the Court of Appeal found no standing existed where a moving party premised its motion to disqualify on opposing counsel revealing their client’s confidential information. The Moreci court rejected the idea that, “[S]tanding requires only that the moving party establish harm to the moving party by the continued participation of counsel.” (Moreci, supra, 70 Cal.App.5th at 434.) “[D]espite the broad language in Kennedy ... it was ultimately the attorney's possession of information the nonclient had shared confidentially, as well as the close relationship between the nonclient and the attorney's former client, that justified disqualification.” (Id. at 435.) As such, Kennedy is properly understood as a fact-specific application of the legal framework discussed in Great Lakes and Moreci, rather than as authority for a broad rule that “any injury …in litigation, regardless of the source, is sufficient to confer standing.” (Id.)

The Court further notes that cases which have employed the broader standard suggested in Kennedy have generally concerned the exposure of confidential information. (See Acacia Patent Acquisition, LLC v. Superior Court (2015) 234 Cal.App.4th 1091 [reversing a trial court order denying disqualification where the moving party demonstrated opposing counsel had represented owners' former attorney in prior attorney fee dispute and thus gained confidential information.].)

From the above cases, the Court understands there to be two competing standards governing the standing requirement for a motion to disqualify counsel. The first is that standing absolutely requires that an attorney/client relationship exist between the moving party and the counsel sought to be disqualified. The second is that standing may exist where the continued representation by the counsel sought disqualified would prejudice a concrete legal interest held by the moving party. This second standard is inherently more reliant on the facts of any given case. Kennedy demonstrates that some violations, especially those of a litigants right to confidential information, are of sufficient magnitude to support a finding of standing. At the same time, Great Lakes and Moreci demonstrate that there are limits to when the conduct of an attorney is of sufficient gravity to confer standing on a party seeking disqualification.

Here, the Court finds that Defendant has not demonstrated standing to bring this motion under either standard. Defendant does not contend that Plaintiff’s counsel previously represented them or any party in privity with Defendant in this or any prior litigation. Thus, there is no standing under the traditional standard.

The Court also finds insufficient facts have been demonstrated to show that the expanded standard under Kennedy should apply. Unlike in Kennedy, there is no conflict of interest or unfair litigation advantage created by the letter from Plaintiff’s counsel. Also unlike Kennedy, this case presents no risk that Plaintiff’s counsel has or may obtain confidential information prejudicial to Defendant. The harm upon which Defendant’s motion appears to be premised is that Aslanyan felt threatened by the direct communication and feared for his financial safety. (See Aslanyan Decl.) Even assuming that the email from Plaintiff’s counsel was an ethical violation, it was a singular occurrence over the course of litigation which has now spanned over two years. Defendant does not state that they have continued to receive direct communication from Plaintiff’s counsel, and it does not otherwise appear that there is a risk that such communication reoccurs. The facts upon which Defendant seeks disqualification are simply too inapposite to the situations presented in Kennedy and other cases. Defendant has not demonstrated a legally cognizable interest, either in their confidential information or otherwise, that is threatened by the continued representation of Plaintiff’s counsel.

Accordingly, the Court finds Defendant lacks standing to bring this motion, and their motion must be DENIED.

The Court notes that its denial of Defendant’s motion for lack of standing is not an endorsement of the actions by Plaintiff’s counsel. While the Court does not opine as to the existence of an ethical violation, it does not find the arguments of Plaintiff’s counsel on this front to be persuasive. The Court is skeptical that Plaintiff’s counsel reasonably interpreted Booth’s statement of “Yeah, I hear you,” as providing consent to contact Defendant directly. Booth’s statement was made several months before the email was ever sent and was in no way indicative of consent to speak directly with Defendant. Further, the email goes far beyond the claimed scope of including, “both the HOA and the adjuster so that everyone with a stake in the decision-making process would be directly aware of the litigation risks and the pressure would be appropriately distributed.” (Martirosyan Decl. ¶ 12.) The Court does not see how directly addressing Aslanyan and imploring him to seek outside counsel accomplishes the goal of facilitating settlement.

This Court takes the ethical obligations of the attorneys appearing before it very seriously. Plaintiff’s counsel is cautioned that any further issues as to communication with Defendant may result in escalation of the matter.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Elizabeth Folk and Mark Blanchard’s Motion to Disqualify Counsel came on regularly for hearing on April 11, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO DISQUALIFY COUNSEL IS DENIED.

DEFENDANT CABRINI VILLAS HOA TO GIVE NOTICE.

IT IS SO ORDERED.