Judge: Loren G. Freestone, Case: 37-2019-00040452-CU-BT-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Business Tort Motion Hearing (Civil) 37-2019-00040452-CU-BT-CTL HOOPER VS BARBER [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant/Cross-Complainant Patrick Barber's motion to disqualify Plaintiff/Cross-Defendant Amanda Hooper's attorney (Sergio Rodriguez) is DENIED.

Barber argues that Attorney Rodriguez must be disqualified 'because he is representing an interest adverse to a former potential client that may either injure the former potential client or be required to disclose confidential information obtained from the former potential client.' It is not entirely clear who Barber contends is/are the former client/clients (Barber personally, Peyton's Garage, or both).

'In evaluating alleged conflicts, a court first looks to whether the challenged representation is concurrent or successive.' (Lynn v. George (2017) 15 Cal.App.5th 630, 637.) Here, Barber's reference to 'a former potential client' makes clear the motion is premised on a purported successive representation.

'A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed written consent.' (Rules Prof.

Conduct, rule 1.9(a).) '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.' (Lynn, supra, 15 Cal.App.5th at p. 637.) 'The issue of successive representation of a former and a current client is not relevant, however, unless there is a former attorney-client relationship.' (Ibid.) 'The party seeking disqualification has the burden to establish the attorney-client relationship.' (Id. at p. 638.) A 'mere potential attorney-client relationship' is not sufficient. (Id. at pp. 641–642.) Moreover, the 'Rules of Professional Conduct do not bar an attorney from taking a matter adverse to a former client whenever there is any connection, no matter how tenuous, with matters previously handled for the client. Instead, Rule 1.9 prohibits an attorney from taking a case adverse to a former client, without that client's consent, only if it involves 'the same or a substantially related matter' as a prior representation of the client. Moreover, current and former matters are deemed substantially related only 'if they involve a substantial risk of violation' of a duty owed the former client.' (Vicaulic Co. v. American Home Assurance Co. (2022) 80 Cal.App.5th 485, 511–512.) The 'materiality requirement is not satisfied by mere relevance.' (Id. at p. 512.) Rather, the information acquired during the first representation must Calendar No.: Event ID:  TENTATIVE RULINGS

3012017  34 CASE NUMBER: CASE TITLE:  HOOPER VS BARBER [IMAGED]  37-2019-00040452-CU-BT-CTL be 'directly at issue in, or have some critical importance to, the second representation.' (Ibid.; see, e.g., Capra v Capra (2020) 58 Cal.App.5th 1072, 1097–1098 [attorney could represent corporation's president in dispute with his shareholder siblings over ownership in a cabin that was funded by the corporation, even assuming the attorney had also represented the corporation and the siblings in various matters over the years, because those other matters were not related to the ownership dispute]; Kirk Corp. v. First American Title Co. (1990) 220 Cal.App.3d 785, 812–813 [attorney who previously prepared CC&R's for developer was not disqualified from defending bank against developer's claims for alleged fraud in refinancing the property].) There must be sufficient evidence demonstrating that an attorney-client relationship existed. (See Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729–730.) There must also be sufficient evidence demonstrating how the prior representation is substantially related to the current representation. (See Elliott v. McFarland Unified School Dist. (1985) 165 Cal.App.3d 562, 572.) In ruling on the motion, the 'court must disregard 'facts' contained in an unverified statement.' (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578.) Here, in support of the motion, Barber submitted a declaration: (1) describing a phone call from Hooper introducing him to Attorney Rodriguez, who told Barber on the phone that 'he wanted to F@ck up Dan Kerr a former contract lawyer that Hooper was using'; (2) attaching a text message from Hooper that says 'Sergio Rodriguez is his name. We can sit down together and meet with him.'; (3) attaching a text message from Hooper that says 'Let's call Sergio tomorrow and see what he says. He can at least advise us on what to do'; and (4) attaching a text message from Hooper that says 'We need to call Sergio to look over this lease.' Barber's declaration is insufficient to meet his burden for several reasons. First, his declaration is not verified under penalty of perjury. It is therefore incompetent to establish any of the facts upon which his motion is based. Second, even assuming the declaration was competent, it at most shows that there were discussions about potentially retaining Attorney Rodriguez. There is no evidence Attorney Rodriguez ever performed the contemplated work. Indeed, Barber's motion is based on the premise that Attorney Rodriguez is representing Hooper, who is purportedly adverse to a 'former potential client.' (Emphasis added.) Third, to the extent Attorney Rodriguez did perform the work, there is no showing that the prior work had anything to do with the current dispute.

Moreover, even if Barber was correct that Attorney Rodriguez should not have brought this suit on behalf of Hooper, Barber waived his right to seek disqualification by not seeking relief earlier. '[A]ttorney disqualification can be impliedly waived by failing to bring the motion in a timely manner.' (Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 844–845.) Barber has known since the inception of the case that Attorney Rodriguez was representing Hooper. Yet he waited four years, and up to the time of trial, before bringing this motion. No explanation is given for this patently unreasonable delay. Waiting until the last minute is prejudicial to Hooper, as disqualification at this late stage would force her to find a new attorney who would need to scramble to get up to speed on years of litigation. Waiting until the last minute also indicates that the alleged breach of confidentiality was not seen as serious by Barber, and that the motion may have been brought for tactical reasons.

Finally, Barber asserts that Attorney Rodriguez should be disqualified because he has 'inserted himself as a witness in the above matter' and 'has acted unethically with psychical and verbal violence, tort, fraud, and perjury.' However, Barber fails to explain why Attorney Rodriguez is a witness in this case, fails to demonstrate that any of the purported misconduct occurred, and fails to show that disqualification is appropriate. (See Smith, Smith & Kring, supra, 60 Cal.App.4th at pp. 577–582 [error to disqualify attorney pursuant to advocate-witness rule where the moving party 'failed to provide an adequate evidentiary showing as to why [the attorney] must testify or how any testimony would be harmful to the integrity of the judicial process']; City of San Diego v. Superior Court (2018) 30 Cal.App.5th 457, 470–471 ['We do not disqualify a lawyer from representing a client to punish the lawyer's mistakes or even bad behavior'].) Calendar No.: Event ID:  TENTATIVE RULINGS

3012017  34 CASE NUMBER: CASE TITLE:  HOOPER VS BARBER [IMAGED]  37-2019-00040452-CU-BT-CTL The motion to disqualify is therefore denied.

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