Judge: Helen Zukin, Case: 22SMCV02702, Date: 2023-03-10 Tentative Ruling

Case Number: 22SMCV02702    Hearing Date: March 10, 2023    Dept: 207

Background

Plaintiff Ebby Shakib (“Plaintiff”) brings this action against Defendant Jamshid Goltche (“Defendant”) and several nominal defendants, centered around an alleged partnership formed between Plaintiff and Defendant. Plaintiff brings a motion to disqualify Defendant’s prior counsel, arguing they have a conflict of interest as they have previously represented the parties concerning ownership interests in business entities which are relevant to the instant dispute between the parties. Defendant argues Plaintiff’s motion is moot because he has substituted in new counsel to represent him in this action.

Legal Standard

“Disqualification of counsel may be ordered ‘when necessary in furtherance of justice. (Code Civ. Proc., § 128,¿subd. (a)(5).)’”¿(In re Marriage of Zimmerman¿(1993) 16 Cal.App.4th 556, 562 (quoting¿Elliott v. McFarland Unified School Dist.¿(1985) 165 Cal.App.3d 562, 567).)¿“It is well settled that an attorney is prohibited from doing either of two things after severing a relationship with a former client . . . He may not do anything which will injuriously affect his former client in any manner in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.” (Id. [quoting¿People ex rel. Deukmejian v. Brown¿(1981) 29 Cal.3d 150, 155] [internal quotation marks omitted].) “The purpose of the rule is to protect both confidential communications and the enduring confidential relationship between attorney and client.” (Id.)

“Before an attorney may be disqualified from representing a party in litigation because his representation of that party is adverse to the interest of a current or former client, it must first be established that the party seeking the attorney's disqualification was or is ‘represented’ by the attorney in a manner giving rise to an attorney-client relationship.” (Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729.) A non-client moving party’s generalized interest in ensuring “the integrity of the process and the fair administration of justice…[is] insufficiently concrete and particularized to support a finding of standing.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1358.) 

Analysis

On January 30, 2023, Plaintiff filed this motion to disqualify Defendant’s counsel in this action, specifically Saul Reiss and Fay Pugh of the Law Offices of Saul Reiss. Defendant responded by substituting new counsel on February 15, 2023. On February 27, 2023, Defendant filed an opposition to the motion for disqualification. Defendant’s opposition did not dispute the underlying merits of Plaintiff’s motion, but only stated the motion was mooted by the February 15, 2023, substitution of new counsel for Defendant. Plaintiff argues the Court should rule on the merits of the disqualification motion anyway.

The substitution of new counsel will ordinarily render a motion to disqualify moot. (La Jolla Cove Motel & Hotel Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773, 781 [holding substitution mooted appeal of disqualification order but appellate court nonetheless had the power to reach merits of dispute where the issues were likely to recur among the parties or were of public interest]; Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 390, fn. 1 [assuming substitution mooted disqualification order but nonetheless exercising discretion to consider merits of motion “under the public interest exception”]; Coldren v. Hart, King & Coldren, Inc. (2015) 239 Cal.App.4th 237, 252, fn. 10 [finding appeal of disqualification order not mooted by substitution of counsel because the prosecuting of the appeal indicated a preference to have disqualified attorney act as counsel in the litigation].)

The Court finds the February 15 substitution of new counsel renders the motion to disqualify moot. Plaintiff’s reliance on Coldren to claim the substitution did not moot this action is misplaced as here Defendant has given no indication that it prefers to have the Law Offices of Saul Reiss represent it in this action. Defendant has not contested the merits of Plaintiff’s motion or otherwise given the Court any reason to suspect the attorneys of the Law Offices of Saul Reiss will simply substitute back into this action if the Court were to find Plaintiff’s motion is moot. Plaintiff has also not shown any public interest exception would apply here. In the absence of such considerations, the substitution of new counsel renders Plaintiff’s motion to disqualify Defendant’s former counsel moot.

Conclusion

Plaintiff’s motion to disqualify Defendant’s former counsel is DENIED as moot.