Judge: Maurice A. Leiter, Case: 21STCV10395, Date: 2022-11-14 Tentative Ruling

Case Number: 21STCV10395    Hearing Date: November 14, 2022    Dept: 54

Hearing Date: November 14, 2022

Department 54, Judge Maurice A. Leiter

Motion to Disqualify Counsel

Moving Party: Defendant Sherry Mehdian

Responding Party: Plaintiff Wilfred Uy

T/R:    DEFENDANT’S MOTION TO DISQUALIFY COUNSEL IS DENIED.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On March 17, 2021, Plaintiff Willfred Uy sued Defendant Sherry Mehdian, asserting causes of action for Labor Code violations. Plaintiff alleges Defendant employed him as an in-home care giver for Defendant’s brother and mother.

On August 25, 2022, Mehdian filed a cross-complaint against Plaintiff and Plaintiff’s counsel for fraud and conversion. Mehdian alleges Plaintiff and his counsel “stole” a services logbook documenting the health conditions of Defendant’s brother and mother. Mehdian also alleges Plaintiff misrepresented his qualifications.

ANALYSIS

Defendant moves to disqualify Plaintiff’s counsel on the ground that counsel’s representation of Plaintiff is a conflict of interest and violates the advocate-witness rule. Defendant asserts that counsel will be required to testify about the alleged stolen logbook to defend against the cross-complaint. The Court of Appeal has discussed the advocate-witness rule as follows,

“The ‘advocate-witness rule,’ which prohibits an attorney from acting both as an advocate and a witness in the same proceeding, has long been a tenet of ethics in the American legal system, and traces its roots back to Roman Law.” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1208, 135 Cal.Rptr.3d 545 (Kennedy).) California's current version of the advocate-witness rule 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.” (Rules Prof. Conduct, rule 3.7(a), fn. omitted.) A comment to the rule clarifies that the informed-consent exception is not absolute: “Notwithstanding a client's informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or the opposing party from being prejudiced.” (Id., com. 3, asterisk omitted, citing Lyle v. Superior Court (1981) 122 Cal.App.3d 470, 175 Cal.Rptr. 918 (Lyle).) In other words, a court retains discretion to disqualify a likely advocate-witness as counsel, notwithstanding client consent, where there is “a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.” (Lyle, supra, at 482, 175 Cal.Rptr. 918.)

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California courts have agreed that one purpose of the advocate-witness rule is to prevent factfinder confusion regarding whether an advocate-witness's statement is to be considered proof or argument.

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In exercising its discretion to disqualify counsel under the advocate-witness rule, a court must consider: (1) “ ‘ “whether counsel's testimony is, in fact, genuinely needed” ’ ”; (2) “the possibility [opposing] counsel is using the motion to disqualify for purely tactical reasons”; and (3) “the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.” Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 580-581, 70 Cal.Rptr.2d 507 (Smith).)

(Doe v. Kim (2020) 55 Cal.App.5th 573, 581-4.)

            In opposition, Plaintiff argues that Plaintiff’s counsel is not likely to testify because any testimony would be barred by both the attorney-client privilege and litigation privilege. Plaintiff also asserts that this motion has been brought as a bad faith litigation tactic, claiming Defendant has filed the cross-complaint for the sole purpose of manufacturing a conflict.

            Disqualification is inappropriate here. Counsel’s testimony is unlikely and if it occurs, will be minimal. Plaintiff may waive any conflict arising from such testimony. Additionally, Plaintiff will be severely prejudiced if counsel is disqualified. Trial is rapidly approaching; the Court notes that Defendant was dilatory in seeking leave to file the cross-complaint.

            Defendant’s motion is DENIED.