Judge: Maurice A. Leiter, Case: 22STCV15060, Date: 2023-04-17 Tentative Ruling

Case Number: 22STCV15060    Hearing Date: April 17, 2023    Dept: 54

Hearing Date: April 17, 2023

Department 54, Judge Maurice A. Leiter

Motion to Disqualify Counsel

Moving Party: Plaintiffs Eileen Carry and Sylvia Merino

Responding Party: Defendants Boys’ & Girls’ Club of Santa Monica and Robert J. Sullivan

T/R:     PLAINTIFFS’ MOTION TO DISQUALIFY COUNSEL IS DENIED WITHOUT PREJUDICE.

            PLAINTIFFS 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 June 2, 2022, Plaintiffs Eileen Carry and Sylvia Merino filed the operative first amended complaint against Defendants Boys’ & Girls’ Club of Santa Monica and Robert J. Sullivan, Inc. for declaratory relief. Plaintiffs occupy a rental unit owned by Defendants. In 2018, Defendants filed an unlawful detainer action against Plaintiffs and judgment was entered in favor of Defendants in 2019. Plaintiffs appealed and the appellate court affirmed the judgment. Plaintiffs allege that Defendants did not seek possession of the unit after remittitur and continued to collect rent from Plaintiffs. Plaintiffs seek declaratory relief stating a new tenancy agreement has been formed.

ANALYSIS

Plaintiffs move to disqualify Defendants’ counsel, Harry Floyd, under the advocate-witness rule. The Court of Appeal has discussed this 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.)

            Plaintiffs assert that Floyd will be required to testify about his advice to Defendants regarding accepting rent from Plaintiffs. Plaintiffs represent that in a recent eviction proceeding, Defendants and Floyd stated that Defendants continued to accept rent from Plaintiffs because Floyd advised that acceptance of rent was merely consideration for delaying enforcement of possession judgment and that it would not create a new tenancy. Plaintiff contends that Floyd will have to testify about the advice given to Defendants, and the accuracy of this advice could open Defendants and Floyd up to greater liability.

In opposition, Defendants assert Floyd’s testimony will not be needed. Floyd also declares that he spoke with board members of the Boys’ and Girls’ Club and they agreed that Floyd may continue to represent them and that no conflict exists.

            Plaintiffs do not provide analysis of the law concerning the underlying issues in this action. As noted, the operative First Amended Complaint seeks a determination of whether the acceptance of rent created a new lease. Plaintiffs do not provide case or statutory authority on the question of whether this is a question of fact or law and, if it is a question of fact, whether Defendants’ intent in accepting rent is relevant. Without that information the Court cannot determine whether, and to what extent, Floyd’s testimony is necessary or relevant.

            As for Defendants, the opposition asserts (via a declaration from Floyd) that Defendants are aware of a potential conflict and waive it, but there are no declarations from the clients stating this.

            Plaintiffs’ motion is DENIED without prejudice.