Judge: Gail Killefer, Case: 20STCV17157, Date: 2024-11-20 Tentative Ruling
Case Number: 20STCV17157 Hearing Date: November 20, 2024 Dept: 37
HEARING DATE: November 20, 2024
CASE NUMBER: 20STCV17157
CASE NAME: Lucia C. Early v. John D.
Early
MOVING PARTY: John D. Early
OPPOSING PARTY: Lucia C. Early, Joseph Stroh, Elizabeth V. Early
TRIAL DATE: February 11, 2025
PROOF OF SERVICE: OK
MOTION: Motion to Disqualify
Counsel
OPPOSITION: November 6, 2024
REPLY: None as of November 15,
2024
TENTATIVE: John’s
motion is denied. Moving party to give notice.
Background
This is a fraud action for damages brought by Lucia C.
Early (“Lucia”) against John D. Early (“John”). According to the Complaint,
Lucia, John, and Elizabeth V. Early (“Elizabeth”) were the surviving children
of Mary C. Early (“Mary”). Lucia alleges that John wrongfully demanded that
Mary execute a deed whereby the Mary C. Early Trust (the “Trust”) conveyed
title to her home (“the Property”) to John and herself as joint tenants,
effectively removing title to the Property from the Trust and depriving
Elizabeth from any future interest in the Property. Thereafter, John allegedly
insisted that Mary amend the Trust so that John would receive the majority of
Mary’s estate upon her death, to the exclusion of Lucia, and that Mary execute
a power of attorney in John's favor. Despite John’s assurances that Mary would
remain in her home for the rest of her life, on or about April 22, 2020, John
allegedly removed Mary from her home and then listed the home for sale.
Lucia’s Complaint alleges the following causes of action:
(1) interference with expected inheritance; (2) fraud (for concealing material
facts related to the transfer of title in the home); (3) fraud (for making a
promise about a material matter without intention of performing it and with
intent to defraud); (4) constructive fraud; (5) injunction; and (6)
restitution.
On May 5, 2020, John filed a Complaint, naming Mary,
Lucia, and Elizabeth, alleging that his mother Mary is believed to be held in
Virginia against her wishes by Lucia and Elizabeth. According to John’s
Complaint, Mary became interested in the Property in early 2006 and purchased
the Property with financial assistance from John pursuant to a written
agreement between them. Thereafter, the Complaint alleges that Mary put several
hundred thousand dollars into an annuity for the benefit of Elizabeth, and that
around this time, Lucia started asking Mary to bequeath the Property to her
and/or her children. Further, the Complaint alleges that Elizabeth and/or Lucia
would visit Mary throughout the years and engaged in coordinated efforts to get
Mary to send them money and/or allegedly to steal from the Property. Elizabeth
and Lucia’s alleged coercion and abuse of Mary continued through 2020, and
allegedly culminated in Elizabeth and Lucia taking Mary from her home in
Missouri against her will and transporting her to an unknown location.
John’s Complaint alleges causes of action as follows: (1)
intentional interference with contractual relations against Lucia and
Elizabeth, (2) intentional interference with prospective economic relations
against Lucia and Elizabeth, (3) breach of contract (against Mary only), (4)
partition by appraisal of real property (against Mary only), (5) partition by
sale of real property (against Mary only), (6) specific performance (against
Mary only), (7) declaratory relief (against Mary only). The Complaint prays for
punitive damages on the first and second causes of action.
On August 19, 2020, the instant action was deemed related
to LASC Case No. 20GDCV00556, with the instant action being the lead case.
On October 8, 2020, Elizabeth and Lucia’s motion to
strike portions of John’s Complaint was denied.
On December 4, 2020, Lucia filed a First Amended
Complaint.
On March 23, 2021, Lucia filed a First Amended
Cross-Complaint.
On October 5, 2021, Mary filed a First Amended
Cross-Complaint.
On January 19, 2023, David Krohn filed a First Amended
Cross-Complaint.
On December 12, 2023, John filed a First Amended
Complaint.
On March 9, 2023, Joseph C. Stroh filed a Cross-Complaint
that was dismissed on May 18, 2023.
On October 1, 2024, the court ordered David A. Cordier,
counsel for Elizabeth, Lucia, and Joseph, to file a Status Report regarding his
role at trial, which he filed on October 16, 2024.
On October 17, 2024, the court set an Order to Show Cause
re: Status of Early’s Counsel for November 7, 2024.
On November 7, 2024, the court discharged the Order to
Show Cause re: Status of Early’s Counsel.
John now moves to disqualify counsel David A. Cordier
(“Cordier”) from representing Elizabeth, Lucia, and Joseph (“the Clients”) in
this matter. Elizabeth, Lucia, and Joseph oppose this motion.
Request for Judicial Notice
John requests judicial
notice of the following in support of his motion to disqualify Cordier:
1. First Amended Cross
Complaint filed by Lucia C. Early and Elizabeth Early on March 23, 2021, in the
LASC Case No. 20GDCV00556 (Exhibit 1).
2. First Amended Cross
Complaint filed by Mary Early on October 5, 2021, in the LASC Case No.
20STCV17157 (Exhibit 2).
3. A Petition for Protective
Order filed by Elizabeth V. Early on February 25, 2021, from the Circuit Court
of Fairfax County, Virginia, in Case No. JA433723-01-00 (Exhibit 3).
4. A Petition for Protective
Order filed by Lucia C. Early on March 18, 2021, from the Circuit Court of
Fairfax County, Virginia, in Case No. JA433723-02-00 (Exhibit 4).
5. Final Order regarding the
Protective Order Dismissal filed on January 23, 2022, in the Circuit Court of
Fairfax County, Virginia, in Case No. JA2021-90 (Exhibit 5).
6. Findings and Order to
Terminate Restraining Order After Hearing filed on February 25, 2022, in the
Los Angeles Superior Court in Case No. 22PDRO00229 (Exhibit 6).
7. February 25, 2022, Minute
Order in the Los Angeles Superior Court Case No. 21PDRO01147 (Exhibit 7).
8. Dismissal Order dated
October 28, 2021, in the Circuit Court of Fairfax County, Virginia, in Case No.
JA-21-82 (Exhibit 8).
9. April 6, 2022, Minute Order
in the Los Angeles Superior Court Case No. 21PDRO01147 (Exhibit 9).
10. Mary Early’s Answer to the
First Amended Complaint of John D. Early filed February 14, 2023, in the Los
Angeles Superior Court Case No. 20STCV17157 (Exhibit 10).
11. December 18, 2023, Minute
Order in the Los Angeles Superior Court Case No. 20STCV17157 (Exhibit 11).
12. March 27, 2024, Court
Ruling in the Los Angeles Superior Court Case No. 20STCV17157 (Exhibit 12).
13. October 11, 2024, Minute
Order in the Los Angeles Superior Court Case No. 23GDCV01410 (Exhibit 13).
14. January 7, 2014, Ruling in
the Court of Appeal of the State of California Second Appellate District
(Exhibit 14).
John's Requests Nos. 1-13 are
granted. The existence and legal significance of these documents are proper
matters for judicial notice. (Evidence Code § 452, subd (d).) However, Request No.14
is denied as an opinion of a California Court of Appeal or superior court
appellate division that is not certified for publication or ordered published
must not be cited or relied on by a court or a party in any other action.
(California Rules of Court Rule 8.1115.)
Discussion
I.
Legal
Authority
“The trial court is vested with the power ‘[t]o
control in furtherance of justice, the conduct of its ministerial
officers.’ That power includes the disqualifying of an
attorney.” (Henricksen v. Great Am. Sav. & Loan (1992) 11
Cal.App.4th 109, 113 (“Henricksen”).) “Whether an attorney should
be disqualified is a matter addressed to the sound discretion of the trial court.
[Citations.] 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. [Citation.]” (Id.)
“[D]isqualification motions involve a conflict between the clients’ right
to counsel of their choice and the need to maintain ethical standards of
professional responsibility. [Citation.] 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.
[Citations.]” (Kennedy v. Eldridge (2011) 201
Cal.App.4th 1197, 1204 (“Kennedy”), internal quotation marks
omitted.)
The “paramount
concern” in evaluating a motion to disqualify counsel “must be to preserve
public trust in the scrupulous administration of justice and the integrity of
the bar.” (Jarvis v. Jarvis (2019) 33
Cal.App.5th 113, 139.) The primary fiduciary values at stake in conflict-of-interest
cases are the client’s right to confidentiality and the attorney’s duty of
loyalty. (Id.)
Under California Rule of Professional Conduct 3.7(a)
(“CRPC”) a lawyer cannot “act as an advocate in a trial in which the lawyer is
likely to be a witness” unless one of the following exceptions applies:
(1) the
lawyer's testimony relates to an uncontested issue or matter;
(2) the
lawyer's testimony relates to the nature and value of legal services rendered
in the case; or
(3) the
lawyer has obtained informed written consent from the client. . . .
(CRPC 3.7(a).)
Under CRPC Rule
1.7:
(a) A lawyer shall not, without informed written consent*
from each client and compliance with paragraph (d), represent a client if the
representation is directly adverse to another client in the same or a separate
matter.
(b) A lawyer shall not, without informed written consent*
from each affected client and compliance with paragraph (d), represent a client
if there is a significant risk the lawyer’s representation of the client will
be materially limited by the lawyer’s responsibilities to or relationships with
another client, a former client or a third person,* or by the lawyer’s own
interests.
(c) Even when a significant risk requiring a lawyer to comply
with paragraph (b) is not present, a lawyer shall not represent a client
without written* disclosure of the relationship to the client and compliance
with paragraph (d) where:
(1) the lawyer has, or knows* that another lawyer in the
lawyer’s firm* has, a legal, business, financial, professional, or personal
relationship with or responsibility to a party or witness in the same matter;
or
(2) the lawyer knows* or reasonably should know* that
another party’s lawyer is a spouse, parent, child, or sibling of the lawyer,
lives with the lawyer, is a client of the lawyer or another lawyer in the
lawyer’s firm,* or has an intimate personal relationship with the lawyer.
(d) Representation is permitted under this rule only if the
lawyer complies with paragraphs (a), (b), and (c), and:
(1) the lawyer reasonably believes* that the lawyer will be
able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law; and
(3) the representation does not involve the assertion of a
claim by one client against another client represented by the lawyer in the
same litigation or other proceeding before a tribunal.
(e) For purposes of this rule, “matter” includes any judicial
or other proceeding, application, request for a ruling or other determination,
contract, transaction, claim, controversy, investigation, charge, accusation,
arrest, or other deliberation, decision, or action that is focused on the
interests of specific persons,* or a discrete and identifiable class of
persons.*
(CRPC 1.7.)
CCP § 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. (CCP § 128(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.)
There are various grounds for a court disqualifying
counsel. A motion to disqualify can be made on the ground that the
attorney should be disqualified because she/he is likely to be called as a
witness by his/her own client or by the opposing party in a trial before a
jury, judge, administrative-law judge, or arbitrator. (See CRPC
3.7(a); Smith, Smith & Kring v. Super. Ct., (1997) 60 Cal.App.4th
573, 578–79.) The court also has discretion, notwithstanding the client’s
consent, to disqualify counsel who seeks to both testify and serve as advocate
in order to protect the opposing party from being prejudiced. (CRPC 3.7,
Comment [3]; see Lyle v. Super. Ct. (City of Rancho
Cucamonga), (“Lyle”) (1981) 122 Cal.App.3d 470, 482 (decided under
prior rule—discretion to disqualify where there is “convincing demonstration of
detriment to the opposing party or injury to the integrity of the judicial
process”).)
California’s current version of the advocate-witness rule
provides: “A lawyer shall not act as an advocate in a trial in which the lawyer
is likely to be a witness unless: (1) the lawyer’s testimony relates to an
uncontested issue or matter; (2) the lawyer’s testimony relates to the nature
and value of legal services rendered in the case; or (3) the lawyer has
obtained informed written consent from the client.” (CRPC 3.7(a).) This
rule applies to a “trial” before a jury, judge, administrative law judge or arbitrator.
(CRPC 3.7 Comment [1].)
One purpose of the advocate-witness rule is to prevent
factfinder confusion regarding whether an advocate-witness’s statement is to be
considered proof or argument. (See, e.g., People v. Donaldson,
(“Donaldson”) (2001) 93 Cal.App.4th 916, 928-29; People ex rel.
Younger v. Super. Ct., (1978) 86 Cal.App.3d 180, 196 (“the jury may have
difficulty keeping properly segregated the arguments of the attorney acting as
advocate and his testimony as a witness”).) Additionally, where a lawyer
representing a party is also a witness during the trial, his or her
effectiveness, both as a lawyer and as a witness, may be impaired in the eyes
of the fact finder. (Id.)
II.
Analysis
John contends that Cordier must be disqualified as the Clients’ Counsel pursuant to CRPC Rules 1.7, 1.9, and 3.7 because Cordier, acting as counsel for the
Clients in this matter, will likely be called as a witness in this litigation
and has multiple and interconnected family entanglements that result in a
strong appearance of impropriety. (Motion, 1:2-10; 8:4-14.) John argues
that Cordier unnecessarily injected himself into this matter as a material
witness from the beginning, resulting in a conflict among and with his Clients,
as well as between his duties as an advocate and his role as a witness. (Motion, 13.) John points to Doe v. Yim
(2020) 55 Cal.App.5th 573 (“Doe”) for further support. (Motion, 10-11.)
In Doe, an ex-wife and mother who represented her
daughter in filing a sexual abuse action against her ex-husband, the daughter’s
stepfather, was disqualified. (Doe v. Yim (2020) 55 Cal.App.5th 573, 589.) The ex-wife/mother was to be a key witness at trial, as
well as trial counsel. (Id.) The court determined disqualification was necessary due to the
ex-wife/mother’s dual role as advocate-witness and to prevent her potential
misuse of 17 years of confidential information that the ex-wife/mother had
obtained, which would prejudice the ex-husband. (Id.)
First, John contends that the advocate as witness CRPC Rule
3.7 and Doe mandate that Cordier be disqualified, arguing the following:
Applying the applicable law to the case at bar it is
clear that Cordier must be disqualified from any further participation in the
matter:
First, the foregoing Statement of Facts overwhelmingly
demonstrates that Cordier’s testimony at trial is ‘genuinely needed’ on
numerous ‘contested issues and matters’ that go to the very heart of the case (Doe,
supra, p. 583, and Rule 3.7(a)(1)).
Second, there is “a convincing demonstration of
[substantial] detriment [and prejudice] to the opponent [John Early] or injury
to the integrity of the judicial process.” (Citation omitted). (Doe, supra,
p. 581-582, and Rule 3.7, Comment [3]).
Third, the informed written consent on the court record
by the Plaintiffs would “not cure the anticipated prejudice to [John] and the
integrity of the judicial process.” (Doe, supra, p. 573).
Fourth, Cordier’s dual role as both advocate and
witness would create problems when he inevitably argues his own credibility as
a witness. (Doe, supra, p. 578-579).
Fifth, Cordier’s dual role as both advocate and witness
would create “a conflict between [his] duty as a witness to tell the truth,
even where the truth might harm [his client’s] interests, and [Cordier’s] duty
as counsel to advocate for [his client’s] interests]. (Doe, supra, p.
578-579).
(Motion, 11.)
In opposition, the Clients contend:
California courts have agreed that one purpose of the
advocate-witness rule is to prevent factfinder confusion regarding whether an
advocate-witness's statement is to be considered proof or argument... The
instant case will not be tried to a jury. Thus, there is no possibility that a
jury may be confused as to the attorney’s role as a witness as opposed to that
same attorney’s role as an advocate. The court should be readily able to
distinguish the two separate roles....
John has provided no declarations to demonstrate which
facts Cordier is expected to testify about, or how any testimony would be
adverse to the integrity of the judicial process. Furthermore, there was no
factual showing as to why testimony from Cordier is necessary and unobtainable
from other witnesses. John has failed to provide an adequate evidentiary
showing as to why Cordier’s testimony is necessary, or how any such testimony
would be harmful to the integrity of the judicial process. "Speculative
contentions of conflict of interest cannot justify disqualification of
counsel.” Castro v. Los Angeles County Bd. of Supervisors (1991) 232
Cal. App.3d 1432, 1442. Failing "the smell test" is not enough to
deny parties representation by the attorney of their choice.
(Opposition, 3.)
Here, Cordier is litigation counsel for the Clients and was
both estate planning counsel and litigation counsel for Mary until her passing
on February 11, 2023. (Motion, 1:1-2.) John argues that Cordier is a material
witness whose testimony and credibility are central to the resolution of this
matter at trial because he twice prepared suspect estate sales for Mary and, while
doing so, Mary allegedly discussed contested facts and issues with Cordier
about her alleged agreements with John, her decision to disinherit John, and
the source of funds for the Property. (Id. at 1:3-7.) Further, Cordier
was allegedly materially involved in the efforts to isolate John from Mary for
the last few years of her life by filing serial Harassment Temporary
Restraining Orders (TROs) against John and by filing false proofs of service to
keep such TROs in place, with such isolation and other conduct by Cordier
likely to be considered elder abuse that will be at issue in the upcoming
trial. (Id. at 1:7-11.)
The court finds that Cordier’s testimony does not relate to
an uncontested issue, or to the nature and value of legal services rendered in
the case per Rule 3.7(a). However, Cordier has obtained written informed
consent from each client under Rule 3.7(a). Cordier’s Declaration filed
concurrently with the Clients’ Opposition also attaches as Exhibit 1 the
Declaration of Elizabeth V. Early, dated November 3, 2024, the Declaration of
Lucia C. Early, dated November 4, 2024, and the Declaration of Joseph Stroh,
dated November 4, 2024. In each declaration, the declarants state:
2. I have been made aware of the
provisions of California Rules of Professional Conduct, Rule 3.7(a) which
states among other things, that “a lawyer shall not act as an advocate in a
trial in which the lawyer is likely to be a witness unless: (3) the lawyer has
obtained informed written consent from the client.
3. I have also been made aware that
John D. Early intends to call my attorney, David A. Cordier as a witness at the
trial of this action.
4. I have been given ample
opportunity to consider whether or not to consent I should consent to David A.
Cordier serving as my attorney at the trial of this action, and further, I have
been given ample opportunity to seek independent legal advice regarding whether
I should or should not consent to David A. Cordier serving as my attorney at
the trial of this action.
5. Having been advised of Rule 3.7,
and after having had ample opportunity to consider the issue, I hereby consent
to David A. Cordier serving as my attorney at the trial of this action,
irrespective of whether he may be called as a witness at the trial.
(Cordier Decl., Exh. 1.)
John argues that it is “simply too late now” for Cordier to
obtain informed written consent from the Clients because one of his clients,
Mary, has now passed away, and it is insufficient to obtain consents and
waivers from only his remaining clients. (Motion, 13-14.) However, John offers
no legal authority to support this contention. Instead, John argues that he was
a third-party intended beneficiary whom Cordier also owed a fiduciary duty to,
which he clearly breached, and this creates a conflict. (Motion, 12:7-11.) John
cites generally three cases in support of this contention: Heyer v. Flaig
(1969) 70 Cal.2d 22, Lucas v. Hamm (1961) 56 Cal.2d 583, and Gordon
v. Ervin Cohen & Jessup, LLP (2023) 88 Cal.App.4th 543. The cases cited
support the contention that attorneys can incur duties in favor of intended
testamentary beneficiaries. This supports the argument that Cordier owed a
fiduciary duty to John, and this duty creates a conflict between the concurrent
duties owed to the Clients. However, Cordier obtained informed written consent
from the Clients, such that exception (3) to Rule 3.7(a) applies, which would
allow Cordier to continue serving as the Clients’ counsel.
However, the court has discretion, notwithstanding the Clients’
consent, to disqualify counsel who seeks to both testify and serve as advocate
in order to protect the opposing party from being prejudiced per Lyle. The
court must consider whether there is a convincing demonstration of detriment to
the opposing party or injury to the integrity of the judicial process. Further,
the trial court must deny the disqualification motion under the
advocate-witness rule, where (1) counsel’s testimony is not needed, (2)
opposing counsel files the motion for purely tactical reasons, and (3) when the
balance tips in favor of the party because the combined effects of the strong
interest parties have in representation by counsel of their choice, and in
avoiding the duplicate expense and time-consuming effort involved in replacing
counsel already familiar with the case. (Doe, supra, 55 Cal. App.
5th at 583.)
As an initial matter, there is no significant risk of
factfinder confusion here. “The very fact of a lawyer taking on both roles will
affect the way in which a jury evaluates the lawyer's testimony, the lawyer's
advocacy, and the fairness of the proceedings themselves.” (People v.
Donaldson, (2001) 93 Cal.App.4th 916, 928.) Given that the instant case
will not be tried to a jury, there is no significant risk of factfinder
confusion as to whether the advocate-witness's statements are to be considered
proof or argument. Accordingly, there is no possibility that a jury may be
confused regarding Cordier’s role as a witness as opposed to his role as an
advocate. The court agrees with the Clients that the court is readily able to
distinguish between the two separate roles, mitigating any confusion and
resulting unfairness that this joint role would have caused in a jury trial. Thus,
there is not a significant risk of harm to the integrity of the judicial
process based on factfinder confusion.
As to prejudice to John, John argues that
having Cordier as trial counsel and a material witness is prejudicial as John
was prohibited during discovery, and will be prohibited at trial, from
inquiring into Cordier’s communications with any of his four Clients that
relate to Mary’s estate plan, capacity, potential undue influence and/or any
other joint privileged communications relating to facts in dispute. (Motion,
14.) However, disqualifying Cordier as counsel here would not automatically
allow him to be called as a witness who can freely testify as to communications
with former clients. “After termination of a lawyer-client relationship, the
lawyer owes two duties to a former client. The 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. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811
[124 Cal.Rptr.3d 256]; Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564
[15 P.2d 505].)” (CRPC 1.9, Comment [1].) Thus, were
the instant motion to be granted, the duties Cordier owes to the Clients, which
would prevent him from injuriously affecting them in this matter or using
against them information acquired by virtue of the prior relationship, survive
the end of the representation. Therefore, disqualifying Cordier as counsel
would not cure the purported prejudice here.
As to the first Doe consideration, John has established
that Cordier’s testimony is necessary. As previously noted, Cordier was both
estate planning counsel and litigation counsel for Mary until her passing on
February 11, 2023. (Motion, 1:1-2.) John alleges that Cordier twice prepared
estate sales for Mary and, while doing so, Mary allegedly discussed contested
facts and issues with Cordier about her alleged agreements with John, her
decision to disinherit John, and the source of funds for the Property. (Id.
at 1:3-7.) Further, Cordier was allegedly materially involved in the efforts to
isolate John from Mary for the last few years of her life by filing serial
Harassment TRO’s against John and by filing false proofs of service to keep
such TROs in place, with such isolation and other conduct by Cordier likely to
be considered elder abuse that will be at issue in the upcoming trial. (Id.
at 1:7-11.) John also argues that Cordier has testified that he took no notes,
kept no copies of any communications he had with Mary or anyone else, and kept
no drafts of the two estate plans he prepared for Mary. (Motion, 14.) Thus,
Cordier’s testimony is necessary at trial on several contested issues.
As to the second Doe consideration, the Clients argue
that John makes this motion for tactical reasons and has waived the right to
seek disqualification of Cordier. The Clients argue that for tactical reasons, John
unreasonably delayed filing the instant motion until the eve of trial, when he
was aware of the facts giving rise to this motion four years ago. (Opposition,
3:15-27.) In deciding a motion for disqualification, a trial court may “consider
such things as the client's right to keep his or her chosen counsel, the
financial burden that would accompany requiring a client to replace a
disqualified counsel after the challenged counsel performed a substantial
amount of work, [and] whether the moving party unreasonably delayed in bringing
the motion ‘despite knowing the pertinent facts.’” (Antelope Valley
Groundwater Cases (2018) 30 Cal. App. 5th 602, 628, citing People ex
rel. Dep't of Corps. v. SpeeDee Oil Change Sys., Inc. (1999) 20 Cal. 4th
1135, 1144–1145 & fn. 2.)
“[T]o result in a waiver, the ‘delay [and] ... the prejudice
to the opponent must be extreme.’ [Citation.] Factors relevant to the
reasonableness of a delay include the ‘stage of litigation at which the
disqualification motion is made’ and the complexity of the case.
[Citation]...‘If the opposing party makes a prima facie showing of extreme
delay and prejudice, the burden then shifts to the moving party to justify the
delay.’” (Antelope Valley, supra, 30 Cal. App. 5th at 625.)
Here, the Clients allege that John was aware or should have
become aware that Cordier was serving as the Clients’ attorney on September 4, 2020,
when Cordier filed a motion to strike portions of John’s Complaint on behalf of
Lucia and Elizabeth, and again on October 28, 2020, when Cordier field an
answer and cross-complaint on behalf of Lucia and Elizabeth, and again on
August 8, 2021, when Cordier filed an answer to John’s complaint and a
cross-complaint on behalf of Mary Early. (Opposition, 3:21-27.) Four years would
constitute an extreme delay in bringing the motion, but the Clients do not
establish when John became aware of the need to call Cordier as a witness which
forms the basis for his “advocate as witness” argument. Although, Cordier
should have been aware of facts giving rise to his “conflict of interest”
argument on or around September 4, 2020, as John argues that Cordier owed him a
duty as a third-party beneficiary as early as 2019. Therefore, the Clients have
established extreme delay. However, the Clients fail to meet their burden to establish
how exactly this delay has prejudiced them as they make conclusory statements
that they are prejudiced by this delay, stating only that “the issue of John’s
undue delay underscores the prejudice that will occur to the Opposing
Parties...it is significant that John waited more than four years and close to
the eve of trial to file his motion to disqualify Cordier.” (Id. at 4:6-10.) Therefore,
the Clients fail to make a prima facie showing of both extreme delay and
resulting prejudice required to establish that John has waived the right to
seek disqualification under Rule 3.7(a).
As to the third Doe consideration, the balance tips
in favor of the Clients because of the combined effects of the strong interest
parties have in representation by counsel of their choice and in avoiding the
duplicate expense and time-consuming efforts to replace counsel already familiar
with this case. The Clients would surely face hardship upon the
disqualification of Cordier from advocating on their behalf this close to
trial, which is currently set for February 11, 2025, less than three months
away. Although a reasonable continuance may be sought for the Clients to secure
new counsel, this case commenced on May 5, 2020, over five years ago, and
further delay may potentially cause prejudice, duplicate expense, and
time-consuming efforts to replace counsel already familiar with this complicated
case. Further, the court does not take lightly the Clients’ waivers of the
conflicts which have arisen in this case.
In exercising its discretion to disqualify counsel under the
advocate-witness rule, the court finds that there is not a significant risk of
harm to the integrity of the judicial process if Cordier were to continue as the
Clients’ counsel under Rule 3.7 based on the Clients giving informed consent, the
balance of hardships tipping in favor of the Clients, and John’s failure to
establish that disqualification would cure any purported prejudice as Cordier
would continue to owe duties to the Clients while testifying at trial.
Thus, John's motion is denied.
Conclusion
John’s motion
is denied. Moving party to give notice.