Judge Holly J. Fujie, Case BC691512 2023-04-11 Tentative Ruling

Plaintiff’s complaint (the “Complaint”) alleges causes of action that arise out of an employment relationship. Although this matter originally went to trial on October 24, 2022, the Court declared a mistrial on November 7, 2022, after several jurors were unable to continue serving as jurors.

On March 9, 2023, Plaintiff filed a motion to disqualify Defendant’s counsel Ogletree, Deakins, Nash, Smoak & Stewart, PC (“Ogletree”) as counsel (the “Motion”) on the grounds that Ogletree improperly made ex parte contact with Plaintiff’s husband (“Husband”) under California Rules of Professional Conduct (“CRPC”), rules 4.2 and 4.3. The Motion argues that Defendant’s counsel’s improper contact with Husband allowed Defendant to obtain information that is the subject of the marital communications privilege.

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 all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto. (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 585.) A motion to disqualify a party’s counsel raises several important interests. (California Self-Insurers’ Security Fund v. Superior Court (2018) 19 Cal.App.5th 1065, 1071.) Thus, judges must examine these motions carefully to ensure that literalism does not deny the parties substantial justice. (Id.) Depending on the circumstances, a disqualification motion may involve such considerations as a client’s right to chosen counsel, an attorney’s interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion. (Id.)

A disqualification order must be prophylactic, not punitive. (Gregori v. Bank of America (19) 207 Cal.App.3d 201, 309.) Disqualification is inappropriate simply to punish a dereliction that will likely have no substantial continuing effect on future judicial proceedings. (Id.) There are other sanctions which in that situation must suffice, including ordering the payment of attorney’s fees and costs incurred by the other side as a result of the misconduct and reporting the misconduct to the State Bar of California so that it may determine whether disciplinary action is appropriate, in which case the attorney should be notified that this has been done. (Id.) Accordingly, disqualification should be ordered only where the violation of the privilege or other misconduct has a substantial continuing effect on future judicial proceedings. (See City of San Diego v. Superior Court (2018) 30 Cal.App.5th 457, 462.) Under this substantial continuing effect test, there must be a “genuine likelihood” that the attorney’s status or misconduct will affect the outcome of the proceedings before the court. (Id. at 472.)

In support of the Motion, Plaintiff provides evidence that: when Husband was deposed in March 2019, he was represented by Plaintiff’s counsel. (Declaration of Jane Doe (“Doe Decl.”) ¶ 3.) In November 2022, Husband presented Plaintiff with a document (the “Letter”) that appears to recite various promises regarding Husband’s continued participation (or lack thereof) in this action. (See Doe Decl. ¶ 4, Exhibit A.) The Letter is signed by Husband and dated November 21, 2022. (See id.) Plaintiff did not sign the portion of the Letter that appears to be reserved for her signature. (See id.) Around the time he gave Plaintiff the Letter, Husband had Plaintiff listen to a voicemail from a speaker who identified herself as Brittney Turner (“Turner”), whom Plaintiff recognized as one of Defendant’s attorneys. (Doe Decl. ¶ 5.) Plaintiff’s declaration does not specify what was said in the message, but Plaintiff interpreted Turner’s voicemail as an inquiry for Husband to provide information that would be damaging to her. (See id.)

Defendant provides evidence that its counsel did not have or attempt to have any direct contact with Husband between March 7, 2019, and October 24, 2022. (Declaration of Brittney L. Turner (“Turner Decl.”) ¶ 8.) Based on her perception of Plaintiff’s counsel’s antagonistic reaction to Husband when Husband appeared in the courtroom November 1, 2022, Turner assumed that Husband was no longer represented by Plaintiff’s counsel. (See Turner Decl. ¶ 9.) Turner called Husband on the phone later that day to confirm the status of his representation; during this conversation, Husband told her that he was not represented. (Turner Decl. ¶ 9.)

On November 8, 2022, during a status conference, Plaintiff raised the issue of Defendant’s counsel’s communications with Husband with the Court. (Turner Decl. ¶ 10.) Defendant’s counsel did not initiate contact with Husband after November 8, 2022, but Turner did respond to some of Husband’s later attempts to contact her. (Turner Decl. ¶ 12.) Turner declares that she did not ask Husband to share privileged information when they spoke. (Id.) Turner further declares that Husband has not shared any privileged information with her. (Id.)

CPRC, rule 4.2 states, in relevant part: 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. (CPRC, r. 4.2(a).) An attorney may be disqualified for communicating directly or indirectly with a person the attorney knows is represented by another attorney in the matter in violation of Rule 4.2. (Doe v. Superior Court (2019) 36 Cal.App.5th 199, 205.) It must also be shown the attorney had “actual knowledge” that the person contacted was represented by counsel. (Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1215.) Constructive knowledge is insufficient to establish a violation. (See Truitt v. Superior Court (1997) 59 Cal.App.4th 1183, 1188.)

CPRC, rule 4.3(b) prohibits a lawyer from seeking to obtain privileged or other confidential information from an unrepresented person which the lawyer knows or reasonably should know the unrepresented person may not reveal without violating a duty to another or which the lawyer is not otherwise entitled to receive. (CPRC, r. 4.3(b).)

Under Evidence Code section 980, a spouse, whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses. (See Evid. Code § 980.) The privilege against disclosure of privileged communications is vested in each spouse and consequently if a spouse is called as a witness he or she may not testify as to confidential communications without his or her consent and the consent of the other spouse. (People v. Dorsey (1975) 46 Cal.App.3d 706, 717.) The privilege survives the termination of the marriage and continues to exist even though the marriage has been terminated by divorce. (Id.)

Communications between spouses during their marriage are presumed to be confidential. (Evid. Code § 917, subd. (a).) If the party claiming that the privilege shows that that the evidence being objected to is a communication made during the marital relationship, the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential or otherwise excepted from the scope of the privilege. (See Doe v. Yim (2020) 55 Cal.App.5th 573.)

While the Court is sensitive to Plaintiff’s concerns about the possibility of Husband sharing privileged information (mistakenly or otherwise) with Defendant’s counsel, the Court finds that the Motion does not set forth sufficient facts to show that Defendant’s counsel improperly communicated with Husband or that Defendant obtained privileged information. Although the Court does not necessarily approve of Defendant’s counsel’s assumption that Husband was no longer represented by Plaintiff’s counsel due to Plaintiff’s counsel’s behavior at trial, and the better method for Defendant to clarify the current status of Husband’s representation would have been a direct question to Plaintiff’s counsel, Defendant’s evidence provides a basis for its belief that Husband stopped being represented by Plaintiff’s counsel during the approximately 3.5 years between his deposition and the trial’s start date. Defendant’s evidence also shows that Turner confirmed that Husband was not represented by counsel before she discussed the case further.

The Motion similarly does not establish that Defendant’s counsel sought to obtain privileged material from Husband. Further, while spousal communications are presumptively privileged, absent a preliminary showing of a spousal communication, the presumption is not triggered. Plaintiff’s suggestion that any information Husband may provide is presumptively privileged overstates the scope of the privilege and its accompanying presumption.[1] The Court therefore DENIES the Motion. Plaintiff is not precluded, however, from seeking a protective order to address concerns about Defendant’s eliciting or sharing privileged information. (See Jackson v. Ingersoll-Rand Co. (1996) 42 Cal.App.4th 1163, 1169.)

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] The cases cited to by Plaintiff that address disqualification due to improper acquisition of materials protected by the spousal communication privilege are distinct from the facts underlying the Motion because in those cases, it was not disputed that the disqualified attorneys had attained a communication made during a spousal relationship. Here, Plaintiff has no evidence that Husband provided information about a spousal communication.