Judge: Lindsey E. Martinez, Case: 2019-01108310, Date: 2022-08-08 Tentative Ruling

Motion for Reconsideration

Defendants Western Express Lending and Jesse Feathers move for reconsideration of the Court’s 06/30/2022 ruling granting Defendants Abraham Pina and Gerardo Fernandez’s motion for disqualification of counsel. For the following reasons, the motion is DENIED.

On 01/31/2022, Defendants Pina and Fernandez moved to disqualify Forward Counsel LLP, counsel of record for Defendants Western Express Lending (“Western Express”) and Jesse Feathers. (ROA 367.) Defendants Western Express and Feathers, as well as Plaintiff, opposed the motion. The “Paliska Defendants” (Defendants Christopher Paliska, Stephen Paliksa, Aaron Vazquez, Rebecca Quarress, and Peter Maldonado) filed no brief in support of or in opposition to the motion.

Judge Oberholzer heard the motion on 06/30/2022. The court granted the motion to disqualify counsel, finding in relevant part that:

Forward Counsel’s own acknowledgments—one of which was signed under penalty of perjury—are sufficient to show the existence of a conflict of interest mandating disqualification. . . . Forward Counsel conceded the existence of [a] conflict required mandatory withdrawal in December 2021. Forward Counsel fails to submit evidence explaining or refuting that an “unwaiveable” conflict of interest mandating withdrawal existed in December 2021.

(ROA 452.)

One week later, on 07/06/2022, Plaintiff dismissed without prejudice all causes of action against Defendant Pina. (ROA 460.)

Thereafter, on 07/11/2022, Moving Defendants Western Express and Feathers filed the instant motion.

Forward Counsel Improperly Filed the Motion

On 06/30/2022, Forward Counsel was disqualified from representing Defendants Western Express and Feathers. As such, Forward Counsel cannot continue to perform work or file court documents on behalf of these defendants. (See Schimmel v. Levin (2011) 195 Cal.App.4th 81, 88 [finding trial court did not abuse its discretion in striking pleadings filed by disqualified counsel prior to the disqualification].)

A motion to disqualify “is an injunctive order” restraining opposing counsel from participating in the case. (Machado v. Super. Ct. (2007) 148 Cal.App.4th 875, 882; see also Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 9:406.15.) A prohibitory injunction “is self-executing and its operation is not stayed by the appeal.” (Rubin v. American Sportsmen Television Equity Soc. (1951) 102 Cal.App.2d 288, 290 [citing among others Ohaver v. Fenech (1928) 206 Cal. 118; Food and Grocery Bureau of Southern Cal. v. Garfield (1941) 18 Cal.2d 174]; see also Weil & Brown, supra, at ¶ 9:533.)

Even if the court considered the motion for reconsideration on the merits, the outcome remains the same.

Procedural Requirements

A motion for reconsideration must be filed within 10 days of service on him of notice of entry of the order in question. (Code Civ. Proc., § 1008(a).) The motion must be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code Civ. Proc., § 1008(a).) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times Co. v. Super. Ct. (2005) 135 Cal.App.4th 206, 213.)

The court finds Moving Defendants sufficiently complied with these procedural requirements.

Motion for Reconsideration

A motion for reconsideration made by a party must be based on new or different facts, circumstances, or law than those before the court at the time of the original ruling. (Code Civ. Proc., § 1008(a).) The burden under section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co., supra, 135 Cal.App.4th at pp. 212–213.) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)

Moving Defendants Fail to State New or Different Facts Warranting Reconsideration

Moving Defendants contend that Defendant Pina’s dismissal from the action cures the conflict of interest identified by the court in its 06/30/2022 ruling.

The court’s ruling, however, was based on the conflict of interest between Defendants Western and Feathers on the one hand, and Defendants Pina and Fernandez on the other. Defendant Fernandez remains a party in the action.

Defendant Pina to give notice.