Judge Holly J. Fujie, Case Number: BC691512, Date: 2023-05-15 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

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

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 subject to the spousal communications privilege.[1]

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.) Even in the absence of an official standard on point, counsel may be disqualified where counsel has obtained the secrets of an adverse party because the situation implicates the attorney's ethical duty to maintain the integrity of the judicial process. (Militello v. VFARM 1509 (2023) 89 Cal.App.5th 602 [306 Cal.Rptr.3d 200, 211].)

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 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.)

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 played Plaintiff audio of a voicemail he received from a speaker who identified herself as Brittney Turner (“Turner”), who 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.) Plaintiff provides supplemental evidence that Husband communicated with Turner on several occasions. (Supp. Doe Decl. 4.) Before Husband met with Turner, Plaintiff observed Husband’s notes for potential topics of discussion that included information stemming from confidential marital communications, including an incident in 2013 (See id.) Husband has continued to threaten to disclose privileged information to Defendant’s counsel in order to pressure Plaintiff to comply with his divorce demands. (See Supp. Doe Decl. ¶ 6.)

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, and when they spoke, she advised him that she was not seeking such information. (See Supp. Turner Decl. ¶¶ 10, 15.) Turner further declares that Husband did not share any privileged information with her or anyone else at Ogletree. (Id.) During one conversation, Husband asked Turner if she had seen the witness statements in the police report from the February 2013 incident. (Supp. Turner Decl. ¶ 11.) Turner thereafter issued subpoenas to the Los Angeles County Sheriff’s Department (“LASD”) and the arresting officers involved in the February 2013 incident for documents related to the February 2013 incident, which LASD ultimately produced pursuant to a 2018 court order. (See Supp. Turner Decl. ¶¶ 12-14.)

The Court finds that the Motion fails to demonstrate that Defendant’s counsel violated CPRC, rule 4.2. The Court understands that it is not a good idea for Defendant’s counsel to act in matters involving professional ethics based solely upon a perception of Plaintiff’s attorney’s conduct – not on a direct representation -- of the relationship between Husband and Plaintiff’s attorneys. The Court finds that it would have been better practice for Defendant’s counsel to affirmatively establish by contacting someone to whom they were clearly authorized to speak, i.e., Plaintiff’s counsel, to confirm that they were no longer representing Husband before contacting Husband directly. It has not, however, been definitively established that Defendant’s counsel did not have a good faith belief that Husband was no longer represented by Plaintiff’s counsel by the time they first contacted him.[2]

The Court finds that Plaintiff’s evidence also fails to establish that Defendant violated CPRC, rule 4.3(b).[3] While the Court is sensitive to Plaintiff’s concerns about the possibility of Husband’s sharing privileged information (mistakenly or otherwise) with Defendant’s counsel, the Motion does not set forth sufficient facts to show that Defendant’s counsel sought privileged information from Husband or that it actually acquired such information. Further, while spousal communications are presumptively privileged, absent a preliminary showing of a spousal communication, the presumption is not triggered.[4] Plaintiff’s suggestion that any information Husband provides is presumptively privileged overstates the scope of the privilege and its accompanying presumption. The Court therefore DENIES the Motion. Plaintiff is not precluded, however, from seeking a protective order to address concerns about Husband’s sharing privileged information or filing a Motion in Limine as to Husband’s testimony on privileged matters at trial. (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 Motion was initially heard on April 11, 2023. At the April 11, 2023 hearing, the Court requested supplemental briefing.

[2] The Court notes, however, that Defendant has not adequately explained why counsel originally contacted Husband when they did. While discovery deadlines were reset after the Court declared a mistrial, Turner first contacted Husband while the trial was ongoing and discovery deadlines were expired. (Hirano v. Hirano (2007) 158 Cal.App.4th 1, 6-7.)

[3] The Court is unpersuaded by Defendant’s argument that Plaintiff lacks standing to seek disqualification under CPRC, rule 4.3 because Plaintiff has demonstrated that a violation of the rule would impact her interest in a fair adjudication of her claims and undermine the integrity of the judicial process. (See Hassett v. Olson (2022) 78 Cal.App.5th 866, 872-73.)

[4] For this reason, the cases Plaintiff relies on, which all involve facts where it was not disputed that the disqualified attorneys had obtained privileged marital communications, are inapposite.