Judge: Kevin C. Brazile, Case: 22STCV23591, Date: 2023-10-11 Tentative Ruling

Hearing Date: October 30, 2023

Case Name: Pappas v. Namazikhah DMD, Inc., et al.

Case No.: 21STCV19741

Matter: Motion to Disqualify Counsel

Moving Party: Defendant Robert M. Hindin, joined by Defendants M.S. Namazikhah

D.M.D and Essential Endodontics, Inc. 

Responding Party: Plaintiff Tony Protopappas

Notice: OK

Ruling: The Motion is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is a fraudulent transfer action relating to a stipulated judgment in BC457138 (“underlying action”).  The underlying action was brought by Kosmas Pappas, with Kenneth J. Catanzarite as counsel. 

On January 10, 2023, the Court substituted Kosmas Pappas with Tony Protopappas as Kosmas passed away.

Defendant Robert M. Hindin, joined by Defendants M.S. Namazikhah D.M.D and Essential Endodontics, Inc., now seeks to disqualify counsel for Plaintiff, Catanzarite.  Defendant contends that Tony has no knowledge of the underlying action and will not be called as a witness; rather, Catanzarite has all knowledge regarding the underlying action and Defendant will call counsel as a witness, invoking the witness-advocate rule.  Defendant also contends there would be a conflict given that counsel is seeking fees from enforcing the stipulated judgment in the underlying action.  Defendant asserts that counsel had been litigating this case for his own interests for an extended period after Kosmas passed away.

Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court.  (Comden v. Superior Court (1978) 20 Cal.3d 906, 910-911, 915-916.)  The court’s authority to disqualify an attorney derives from the court’s inherent power to control the proceedings before it.  (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee Oil).)  

Motions to disqualify counsel generally concern a conflict between the client’s right to choose his or her legal representative and the need to maintain ethical standards of professional responsibility.  In assessing disqualification motions, the court’s primary concern is “to preserve public trust in the scrupulous administration of justice and the integrity of the bar,” and in certain circumstances, the client’s right to his or her counsel of choice “must yield to ethical consideration that affect the fundamental principles of our judicial process.”  (SpeeDee Oil, supra, 20 Cal.4th at pp. 1145-1146.)  The purpose of disqualification is not punitive but prophylactic, meaning that the primary issue on any such motion is whether there is a genuine likelihood that permitting the challenged attorney to remain will affect the outcome of the proceedings before the court.  (Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 815.)

Cal. Rules of Professional Conduct, Rule 3.7(a) 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. . . .”

Here, Tony has provided informed consent to allow Catanzarite to continue acting as counsel despite the potential for being called as a witness by Defendant.  “The court's discretion to disqualify a likely advocate-witness notwithstanding client consent-the exception to the exception-has been judicially interpreted to be permissible only upon ‘a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.’ ”  (Geringer v. Blue Rider Finance (2023) 94 Cal.App.5th 813, 625.)  The Court finds that Defendant has not convincingly established a detriment or injury so as to defeat Tony’s informed consent.  Therefore, the Motion to Disqualify is denied.  

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.