Judge: Joel R Wohlfeil, Case: 37-2022-00043919-CU-DF-CTL, Date: 2023-08-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 15, 2023

08/18/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Defamation Motion Hearing (Civil) 37-2022-00043919-CU-DF-CTL MARTINEZ VS CHAPLIN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/26/2023

1. The Motion (ROA # 102) of Defendant ALI'IKAI CHAPLIN ('Defendant') for an order correcting the order issued on Plaintiff's Motion to Strike (Code of Civil Procedure 425.16) and served by the clerk of court on May 26, 2023, is DENIED.

The ruling was simply summarizing and discussing the allegations in the pleading. An anti-SLAPP special Motion to strike is a motion that addresses the pleading and its allegations. As a result, the Court did not make 'a finding of fact' with respect to whether the accusation of a sexual assault was false.

The Court did not entertain or consider the late opposition.

_____ 2. The Motion (ROA # 109) of Plaintiff Carlos Martinez ('Plaintiff') for an order disqualifying Attorney Donald R. Holben and his law firm Donald R. Holben and Associates, APC, as counsel for Defendant ALI'IKAI CHAPLIN ('Defendant'), is GRANTED.

Plaintiff is ordered to file and serve a proposed order.

This ruling is based on the analysis set forth below.

Defendant's objection (ROA # 132) is OVERRULED. The Court has read and considered all moving and opposing papers filed by the parties.

Necessity of Disqualification The Court has the authority to disqualify attorneys who violate professional ethical rules because every court has the power to control, 'in furtherance of justice,' the conduct of persons connected with its proceedings. Jackson v. Ingersoll-Rand Co. (1996) 42 Cal. App. 4th 1163, 1166.

Disqualification is proper to assure fairness in judicial proceedings - its point is not to punish ethical transgressions, but to prevent continuing, detrimental effects upon the proceedings. Id. Calendar No.: Event ID:  TENTATIVE RULINGS

2995925 CASE NUMBER: CASE TITLE:  MARTINEZ VS CHAPLIN [IMAGED]  37-2022-00043919-CU-DF-CTL Even when no lawyer-client relationship ensues, a lawyer who has communicated with a prospective client shall not use or reveal confidential information that the lawyer learned as a result of the consultation. California Rules of Professional Conduct, Rule 1.18(b).

A lawyer subject to this prohibition 'shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received from the prospective client ... [confidential information] that is material to the matter ....' Id. at (c).

Protecting the confidentiality of communications between attorney and client is fundamental to our legal system. People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal. 4th 1135, 1146.

The attorney-client privilege is a hallmark of our jurisprudence that furthers the public policy of ensuring the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the client may have adequate advice. Id. Where an attorney successively represents clients with adverse interests, and where the subjects of the two representations are substantially related, the need to protect the first client's confidential information requires that the attorney be disqualified from the second representation. Id. For the same reason, a presumption that an attorney has access to privileged and confidential matters relevant to a subsequent representation extends the attorney's disqualification vicariously to the attorney's entire firm. Id. The former client need not establish that the attorney actually possesses confidential information. In re Marriage of Zimmerman (1993) 16 Cal. App. 4th 556, 563.

Possession of confidential information is presumed where a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation, or the relationship of the attorney to the former client, confidential information material to the current dispute would normally have been imparted to the attorney. Id. It is the possibility of the breach of confidence, not the fact of an actual breach that triggers disqualification. Id. Under the 'substantial relationship' test, subsequent representation is proscribed on the theory that its substantial relationship to the former representation places the attorney in a situation where he could breach the duty of confidentiality to the former client. Id. If the substantial relationship test is satisfied by the former client, the discussion should ordinarily end, and the rights and interests of the former client will prevail. Id. Conflict would be presumed; disqualification will be ordered. Id. The Marriage of Zimmerman case was a post-dissolution proceeding to adjudicate the former wife's community property share of a business asset not adjudicated in the original dissolution action. The wife filed a motion to disqualify her former husband's attorney (Bernheim), and his law firm, from the action based on her prior contact with her former husband's attorney. The motion for disqualification was based on her prior contact with another partner in Bernheim's law firm: Kenneth Gack. The former representation involved her seeking counsel to oppose the former husband's motion for summary judgment, which had been filed by attorney Bernheim. The former wife was referred to Gack by an acquaintance, and in November of 1989 consulted with him during a 20-minute telephone conversation.

According to the former wife, she outlined and explained her side of the case fully to him. She told him everything she thought was pertinent to the case. At the conclusion of their conversation, Gack provided Calendar No.: Event ID:  TENTATIVE RULINGS

2995925 CASE NUMBER: CASE TITLE:  MARTINEZ VS CHAPLIN [IMAGED]  37-2022-00043919-CU-DF-CTL appellant his initial impression and opinion about the case, and recommended that she seek representation by someone with domestic relations expertise. Attorney Gack had no recollection of ever speaking with the former wife in 1989, and contrary to his usual practice, he took no notes of any such conversation that may have occurred. The former husband's attorney (Bernheim) only joined Gack's law firm during the course of the litigation. The discovery of the relationship between Bernheim and Gack was not made until May 1992. Id. at 560, 561. The Court denied the motion and the former wife appealed. The opinion states as follows: 'There is no disputing the substantiality of the relationship between the former and current aspects of this litigation; Bernheim is representing respondent in the same case about which appellant previously consulted with Gack .... We therefore turn to the additional and separate requirement that the nature of the former representation or relationship of the attorney to his former client be such that confidential information material to the current dispute 'would normally have been imparted to the attorney.' (Dill v. Superior Court, supra, 158 Cal. App. 3d at p. 305 ....) The approach is a pragmatic one which considers the particular facts of each case .... ' 'Mere prior professional association with the former client is not enough.' ' (Ibid.) The focus is upon the nature and extent of the former attorney's involvement, as well as the factual and legal similarity of the cases .... ' '... As part of its review, the court should examine the time spent by the attorney on the earlier cases, the type of work performed, and the attorney's possible exposure to formulation of policy or strategy.' ' (Ibid.) Here, appellant was never represented by Gack in this action, she merely engaged in a preliminary consultation with him. While Gack may have offered appellant his initial impressions of the case, he obviously was not called upon to formulate a legal strategy and, by the very limited nature of his contact with appellant, could not have gained detailed knowledge of the pertinent facts and legal principles .... A distinction has been recognized ' '... for disqualification purposes between lawyers who become heavily involved in the facts of a particular matter and those who enter briefly on the periphery ....' [Citation.]' (H.

F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal. App. 3d at p. 1457.) If Gack provided representation to appellant at all, it was clearly of a preliminary and peripheral nature. (Ibid.) He did not even recall the brief conversation with appellant, and took no notes of it. He performed no work for appellant; rather, he referred her to an attorney with 'domestic relations expertise.' The record before us shows the most minimal involvement by Gack in the case ....

Appellant has also failed to show disclosure of confidential information during the preliminary consultation. Appellant has declared that she 'outlined' the case for Gack by providing him with all 'pertinent' information, but no confidential disclosures have been claimed. Nor does it appear from the nature of appellant's relationship with Gack, brief and insubstantial as it was, that confidential information material to the current dispute would normally have been imparted to the attorney. The trial court found that appellant's 'conclusory' declaration failed to establish a relationship with Gack 'from which it would be reasonable to infer' disclosure of confidential information. We cannot dispute the trial court's finding, based as it is upon substantial evidence ....

Further, Gack was apparently consulted on an issue - whether the milk diversion program proceeds were a 'missed asset' for purposes of entertaining appellant's postdissolution claim - which has been finally decided by this court. The remaining dispute in the case centers upon division and distribution of that asset, an issue which may have even less connection with Gack's 'representation' of appellant.

The nature of the issues presently in dispute does not persuade us that disclosure of material confidential information to Gack by appellant in November 1989 was likely. Finally, we observe that Bernheim has represented respondent during the entire course of this protracted case, even before Gack became a partner with him in the same law firm. To deprive respondent of the counsel of his choice at this late stage in the proceedings, where no unfair disadvantage to appellant is indicated, would, we believe, cause undue hardship to respondent without serving the purpose of the disqualification remedy ....

We therefore conclude from the record presented that appellant has failed to demonstrate that her preliminary consultation with Gack resulted or could reasonably have resulted in the latter's acquisition Calendar No.: Event ID:  TENTATIVE RULINGS

2995925 CASE NUMBER: CASE TITLE:  MARTINEZ VS CHAPLIN [IMAGED]  37-2022-00043919-CU-DF-CTL of confidential matters relating to these proceedings .... Accordingly, the trial court did not abuse its discretion by denying appellant's motion to disqualify respondent counsel ....' Id. at 563 - 565 (mot internal citations and footnote omitted).

In this case, the declaration of attorney Michael R. Hirman states that the San Diego County Bar Association initially referred Plaintiff's family to both his office and Donald R Holben's office. Plaintiff's family initially consulted with Mr. Holben. The declarations of Carlos Martinez and Raul Martinez state that they initially met with Mr. Holben on September 2, 2022. As requested, they gave him all of the documents they had gathered supporting the claim. They were told by Mr. Holben to leave the documents in his possession so that his team of attorneys could review everything. Two days later, they met with Mr. Holben a second time. Also present were three associates from his firm. They engaged in a detailed discussion of this action. Mr. Holben ultimately decided not to take the case and the documents were returned to Plaintiff. Specifically, the declaration of Raul Martinez adds that he told Mr.

Holben about social media postings her had personally 'received' in an attempt to 'ruin' his business.

The opposition includes the declaration of attorney Lorraine M. Nisbet. She states that she was not employed by the Holben law firm when the meetings occurred, and that she is 'the primary attorney working on the matter.' The declaration of attorney Holben confirms that two meetings occurred, and that he took notes of these conversations. He recalls meeting with Raul Martinez, but does not recall whether Carlos Martinez attended. He recalls Raul Martinez 'seeking representation with respect to business problems he blamed on Defendant Ali'ikai Chaplin.' He states that the three associates attending the second meeting are no longer employed by his law firm. Attorney Holben also states: '... I do not recall giving any legal advice or opinions about the particular issues discussed at this meeting or any other meeting thereafter, as I was operating on only a generalized, broad and basic understanding of the issues. The communications, therefore, were all of a preliminary nature designed to permit me to learn about the scope of Raul's problem and to permit myself to begin to evaluate my suitability as possible counsel.' Based on the evidence summarized above, the Court finds that disqualification is necessary pursuant to Rule 1.18 of the California Rules of Professional Conduct. The Court infers from the fact that two meetings took place with multiple attorneys, and that documents were provided and reviewed that Mr.

Holben actually possesses confidential information. Also, possession of confidential information is presumed because a substantial relationship exists between the former prospective representation and the current representation. Despite Mr. Holben's characterization of the meeting as involving Raul Martinez's business, both the former and current representation involve the identical controversy over statements made by Defendants. The evidence discloses a situation where serious discussion took place regarding representation such that confidential information material to the current dispute would normally have been imparted.

Although Defendant cites and relies on the Zimmerman case, the circumstances in this action differ such that the Zimmerman opinion is distinguishable. The successive representation in Zimmerman involved a discreet post-dissolution issue, and did not taint the entire proceeding. Zimmerman involved the client's contact with a partner who was not involved in the underlying dissolution litigation and was not employed with the law firm during the pendency of the underlying action. The telephone consultation lasted only 20 minutes, the attorney did not take notes and had no recollection of the conversation. This action involved a much more in-depth consultation. It is probable that Mr. Holben obtained detailed knowledge of the pertinent facts and legal principles surrounding Plaintiff's action. Disqualification is necessary to assure fairness in this judicial proceeding and to prevent the potential for any detrimental effects on this proceeding.

Delay / Prejudice Attorney disqualification can be impliedly waived by failing to bring the motion in a timely manner.

Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal. App. 4th 465, 490.

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2995925 CASE NUMBER: CASE TITLE:  MARTINEZ VS CHAPLIN [IMAGED]  37-2022-00043919-CU-DF-CTL It is not in the interests of justice to make the 'substantial relationship' rule so unyielding as to permit the former client to inexcusably postpone objections without penalty. Id. Therefore, a narrow exception should apply if the present client, by way of opposition, offers prima facie evidence of an unreasonable delay by the former client in making the motion and resulting prejudice to the current client. Id. To operate as a waiver, however, the delay and the prejudice to the opponent must be extreme. Id. 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. Id. 'In this case, we need not consider whether the trustees have made a prima facie showing of extreme delay because they have offered no evidence demonstrating that they suffered extreme prejudice as a result of that delay.' Id. This action was initiated on November 1, 2022. According to the submitted declarations, the successive representation issue was not discovered by Plaintiff's current attorney until mid-April of this year. Given that Plaintiff and his family are unsophisticated litigants, it is not unreasonable that they failed to alert their attorney until after the April deposition. Plaintiff waited an additional three months before filing this Motion, which could be considered minimal delay.

The opposition provides no proof of any prejudice resulting from disqualification. This is not an overly complicated case with an estimated trial length of only five days. Trial is currently scheduled for March 15, 2024 such that this Motion is not made on the eve of trial. If it becomes necessary, the Court will consider a request for a trial continuance to alleviate any potential prejudice.

Disqualification of the Entire Law Firm '... [A] presumption that an attorney has access to privileged and confidential matters relevant to a subsequent representation extends the attorney's disqualification vicariously to the attorney's entire firm.' People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra.

'In sum, we believe the rule to be quite clear cut in California: where an attorney is disqualified because he formerly represented and therefore possesses confidential information regarding the adverse party in the current litigation, vicarious disqualification of the entire firm is compelled as a matter of law.' Henriksen v. Great American Savings & Loan (1992) 11 Cal. App. 4th 109, 117.

The Court has not been presented with a compelling reason why it should deviate from this rule of vicarious disqualification. As Mr. Holben is the lead attorney in his firm, it is likely that any confidential information he has acquired will be passed along to his subordinate associate attorneys.

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