Judge: Mel Red Recana, Case: 23STCV27439, Date: 2024-08-05 Tentative Ruling
Case Number: 23STCV27439 Hearing Date: August 5, 2024 Dept: 45
Hearing date: August 5, 2024
Moving Parties: Cross-Defendants
M. White and Jonathan N. White
Responding
Party: Defendant/Cross-Complainant
Michelle Pak
Motion
to Bifurcate Trial
The Court considered
the moving, opposition, and reply papers.
The
motion is DENIED.
Background
On November 8,
2023, Plaintiffs Baird Brown (referred to as “Mr. Brown” in the Complaint),
Baird Brown, a professional law corporation (“Brown Law”), and Ann Brown (collectively,
the “Plaintiffs”) filed this action against Defendants Donald G. Norris (“Norris”),
Donald G. Norris, a law corporation (“Norris Law”), Michelle Pak (“Pak”),
Taurin Robinson (“Robinson”), and Does 1 through 10, inclusive, asserting
causes of action for (1) elder financial abuse, (2) theft and conversion; (3) unfair
competition, (4) breach of fiduciary duty, and (5) conspiracy.
In their
Complaint, Plaintiffs allege the following, among other things. Mr. Brown is
the sole owner of Brown Law. (Compl., ¶ ¶ 1, 2.) “[Defendant]
Pak had been the office manager of Mr. Brown’s law practice for approximately
20+ years. In that capacity, Pak had overall responsibility for all the
day-to-day financial and business aspects of Mr. Brown’s law practice, and Mr.
Brown relied heavily on Pak to handle those non-legal affairs responsibly and
ethically.” (Compl., ¶ 12.) In or about 2017 to 2018, Pak
committed a series of ethical breaches by not timely sending two of the law
firm’s clients their shares of settlement funds. (Compl., ¶ 17.)
Since he was the sole attorney-owner of Brown Law, Mr. Brown was punished by
the State Bar for Pak’s malfeasance (or nonfeasance). (Compl., ¶ 17.)
The State Bar ordered Mr. Brown’s law license to be suspended from April
through June of 2020. (Compl., ¶ 17.) However, “Pak
deliberately – [and] secretly – refused to carry out Mr. Brown’s explicit
instructions in early 2020 to send notice letters to all his clients, over his
signature, advising that his ability to practice law would be suspended only
during April, May and June of 2020.” (Compl., ¶ 19
[emphasis in original].) “Plaintiffs are informed and believe, and thereon
allege, that Pak and Norris [an attorney] agreed, either before or shortly
after [Park’s] defalcation, on a strategy to exploit Pak’s failures to disburse
settlement funds promptly, in an effort to substitute Norris and [Norris Law]
as counsel of record for scores of Mr. Brown’s clients and cases.” (Compl., ¶
18.)
“Plaintiff is informed and believes that, through the web of lies, deception
and fraudulent, forged legal documents …, more than 200 of Plaintiff’s valuable
clients and cases have been stolen by Defendants.” (Comp., ¶ 25.)
“By engaging in the acts alleged in the Complaint, Norris, [Norris Law], Pak,
and Robinson [Brown Law’s former legal assistant and Pak’s son-in-law], took,
secreted, appropriated, and retained the property of Plaintiffs, who are both
elders, to a wrongful use and/or with intent to defraud within the meaning of
Welfare & Institutions Code Section 15610.30.” (Compl., ¶ 30.)
On January 12,
2024, Norris and Norris Law filed a Cross-Complaint (“Norris XC”) against
Plaintiffs, Andrew M. White, Jonathan N. White, and Roes 1-10 inclusive,
asserting five causes of action for (1) conversion, (2) violation of Penal Code
section 502, (3) violation of Unfair Practices Act (Bus. & Prof. Code s
17200 et seq.), (4) interference with prospective economic advantage, and (5)
breach of fiduciary.
The
Norris XC alleges the following, among other things. In 2019, Mr. Brown and
Brown Law maintained an office at 3055 Wilshire Boulevard in Los Angeles where
they practiced law. (Norris XC, ¶ 5.) Due to Mr.
Brown’s misconduct, the California Supreme Court adopted the State Bar’s
proposal to suspend his license as of April 1, 2020, and required Mr. Brown to
(among other things) (1) notify all clients in pending matters of his suspension
and (2) urge the clients to seek substitution of another attorney in pending
court cases. (Norris XC, ¶ 7.) Mr. Brown sent his clients
notices did not comply with those two requirements. (Norris XC, ¶ 7.)
As of April 1, 2020, Mr. Brown was barred from having clients or maintaining
client files in cases which he had represented clients. (Norris XC, ¶ 10.)
Before August 2019, Mr. Brown met with Norris and induced him to take over
representation of his clients and cases, which Norris did. (Norris XC, ¶
11.)
Mr. Brown promoted, knew of, and approved of Norris handling those cases at
Brown Law’s 3055 Wilshire Boulevard office, and also of Norris using Park as
the general manager of Norris Law at that location. (Norris XC, ¶ 11.)
“No agreement was ever entered into between Norris and Brown that provided for
Norris to pay Brown or Brown Law Corp. any portion of fees earned as to Brown’s
prior clients.” (Norris XC, ¶ 15.) Indeed, Mr. Brown “was forced
to end his client representations due to his own misconduct, thereby forfeiting
any lien rights that may have been provided for in his retainer agreements with
his former clients.” (Norris XC, ¶ 16.) “Despite
the promotion of, and consenting to, Norris representing his former clients …,
on October 21, 2023, without prior notice to Norris and Pak, and in furtherance
of their false allegations that Norris had stolen clients from Brown, Brown,
Ann Brown and their attorneys, Cross-defendants Andrew White and Jonathan
White, resorted to self-help, unlawfully physically excluding Norris, his staff
and Pak from the premises at 3055 Wilshire Boulevard, and from their access to
Norris’s confidential client files, including files as to Norris clients who
had never been represented by Brown, and private, privileged and confidential
financial records maintained by Pak concerning Norris’s clients and the
operation of Norris’s law office, to which Cross-defendants had no lawful right
of access.” (Norris XC, ¶ 20.) “To date, Cross-defendants
have failed and refused to return to Norris and Pak the aforesaid personal
property, including client files, client and financial records, computers, and
furniture referred to in paragraphs 20-23, despite Cross-defendants requests
for their return.” (Norris XC, ¶ 24.)
On February 5,
2024, Pak filed a Cross-Complaint (“Pak XC”) against Plaintiffs, Andrew M.
White, Jonathan N. White, and ROES 1-10 inclusive, asserting causes of action
for (1) breach of contract, (2) money had and received, (3) common count - open
book account, (4) common count - account stated, (5) conversion, (6) unauthorized
access to computer files and documents (violation of Cal. Penal Code §502), (7)
violation of the Unfair Practices Act (Business & Prof. Code §17200 et
seq.), (8) battery, (9) assault, (10) sexual battery, (11) sexual harassment in
violation of the Fair Employment and Housing Act (“FEHA”), (12) failure to
prevent sexual harassment in violation of FEHA, (13) intentional infliction of
emotional distress, and (14) violations of the Elder and Dependent Adult Civil
Protection Act).
The Pak XC repeats
some of the allegations in Norris XC (e.g., the events surrounding Mr. Brown’s
license suspension and State Bar proceedings), but adds the following (among
other) allegations. On or about April 14, 2017, Ms. Pak, Mr. Brown, and Brown
Law entered into a written employment agreement, which stated (among other
things) that “at post-termination Ms. Pak would continue to be in charge of
Firm’s business operations with access to Firm’s bank accounts until all cases
pending at the time of termination have been resolved.” (Pak XC, ¶ 53.)
“Cross-Defendants Brown and Brown Law Corp. breached their agreement with Ms.
Pak when, without prior notice to Cross-Complainant Ms. Pak, on October 21,
2023, resorted to self-help, unlawfully, physically excluding Ms. Pak from the
premises at 3055 Wilshire Boulevard, and from her access to confidential files,
books, records and preventing from continuing lawful business operations with
access to Firm’s bank accounts until all cases pending would be resolved.” (Pak
XC, ¶ 55.) “Cross-Defendants also unlawfully
seized office furniture, computers, file cabinets, and other personal property
in the 3055 Wilshire Boulevard office that had been purchased by Ms. Pak and
were her personal property that Norris’s office used to service and represent
his clients.” (Pak XC, 36.) “On or about October 21, 2023, Cross-Complainant
Ms. Pak, was lawfully at her office located at 3055 Wilshire Boulevard, Los
Angeles, California 90010,” when “Cross-Defendants Andrew White and Jonathan
White physically assaulted and battered Ms. Pak, an elderly woman, by pushing
her to the wall, punching her in the face, arms, hands and legs, and knocking
her down on the floor of the 3055 Wilshire Boulevard office suite.” (Pak XC, ¶¶
87, 88.)
Mr. Brown sexually harassed Pak for years, including forcing himself upon her
on multiple occasions. (Pak XC, ¶¶ 40-51.)
On June 24,
2024, Cross-Defendants Andrew M. White and Jonathan N. White, who happen to be
Plaintiffs’ counsel of record (collectively, the “Cross-Defendants”), filed the
instant motion to bifurcate trial, arguing that Plaintiffs’ Complaint should be
tried first and separate from Norris and Pak XCs.
On July 24,
2024, Pak filed her opposition to the motion. Norris, Norris Law, and Robinson
filed a notice of joinder.
On July 29,
2024, Cross-Defendants filed their reply.
A trial date has
not yet been set but there is a Case Management Conference on August 19, 2024.
Legal
Standard
“The court may,
when the convenience of witnesses, the ends of justice, or the economy and
efficiency of handling the litigation would be promoted thereby, on motion of a
party, after notice and hearing, make an order, no later than the close of
pretrial conference
in cases in which such pretrial conference is to be held, or, in other cases,
no later than 30 days before the trial date, that the trial of any issue or any
part thereof shall precede the trial of any other issue or any part thereof in
the case, except for special defenses which may be tried first pursuant to
Sections 597 and 597.5.” (Code Civ. Proc., § 598.)
“The objective of this section was the
avoidance of the waste of time and money caused by the unnecessary trial of
damage questions in cases where the liability issue was resolved against the
plaintiff. [Citation.] Thus, if the issue of liability was decided in favor of
the defendant, judgment would be entered at that time. However, if the
liability issue was resolved against the defendant, section 598 provided that ‘the
trial of the other issues shall thereafter be had at such time, ... and
judgment shall be entered in the same manner and with the same effect as if all
the issues in the case had been tried at one time.’” (Plaza Tulare v.
Tradewell Stores, Inc. (1989) 207 Cal.App.3d 522, 524.)
Discussion
Evidentiary Objections
On
July 29, 2024, Cross-Defendants filed objections to the declaration of Brett A.
Greenfield.
The
Court rules on those objections as follows. Objection Nos. 1, 2, 3, 4, 5, 6, 7,
and 8 are sustained.
Request
for Bifurcation
Cross-Defendants
argue that Plaintiff’s Complaint should be tried first and separately from the
cross-complaints filed in this action for the following reasons. The gravamen
of the action is a dispute about who the files that were kept, maintained, and
worked upon at Plaintiffs’ 3055 Wilshire Boulevard office belong to. The entire
Norris XC and some claims in Pak XC (specifically, the first cause of action
for breach of contract, fifth cause of action for conversion, sixth cause of
action for unauthorized access to computer files and documents, and seventh
cause of action for violation of the Unfair Practices Act) also involve determining
who those files belong to. Therefore, the proposed bifurcation order should be
granted because if Plaintiffs prevail on their Complaint, then the entire
Norris XC and those claims in Pak XC would be moot. On the other hand, if trial
is not bifurcated Cross-Defendants, as Plaintiffs’ counsel, will have to
represent Plaintiffs at trial while at the same time defending claims brought
against the cross-complainants. Not only would that confuse the jurors, but it
would unduly prejudice Plaintiffs and Cross-Defendants by suggesting that the
allegations in Plaintiffs’ Complaint have no merit.
In opposition,
Pak argues the following. Cross-Defendants have not provided good cause for
their proposed bifurcation. Indeed, since the Complaint and cross-complaints
involve common witnesses that are parties to this action, the jury will
necessarily hear facts, testimony, and receive evidence that is vital to all of
the pleadings. Bifurcation will only create confusion for the jury and make
simple issues complex. On the other hand, allowing claims to proceed together
ensures that the parties can engage in an efficient and streamlined discovery
process, allowing the Court to consider all relevant information at one time.
Cross-Defendants should be disqualified as Plaintiffs’ counsel because they are
critical fact witnesses to this action. By bringing this motion to bifurcate,
Cross-Defendants are attempting to obtain an order that would avoid their
ethical dilemma and prevent their disqualification. Finally, the motion is
premature (i.e., it is too soon to determine if bifurcation will be
appropriate) because a trial date has not yet been set and discovery is ongoing.
Norris, Norris Law, and Robinson’s joinder
adopts and incorporates the arguments raised in the opposition.
Cross-Defendants argue the following (among
other things) in reply. The relevant statute does not require a trial date to
be set in order for a motion to bifurcate to be granted. In addition, even
without discovery, it is already determinable that if the trier of fact finds
that the files at issue rightfully belonged to Plaintiffs, the Norris XC and
some claims in the Pak XC will be rendered moot, an argument that Pak has not
disputed in her opposition. The disqualifications arguments are irrelevant and
inappropriate. However, to the extent the Court is inclined to discuss the
disqualification issue, it should note that Cross-Defendants obtained informed
written consent from Plaintiffs to represent them in this lawsuit pursuant to California
Rules of Professional Conduct, Rule 3.7(a).
“‘A trial court’s authority to disqualify
an attorney derives from the power inherent in every court ‘[t]o control in
furtherance of justice, the conduct of its ministerial officers, and of all
other persons in any manner connected with a judicial proceeding before it, in
every matter pertaining thereto.’’” (Ontiveros v. Constable (2016)
245 Cal.App.4th 686, 694 (quoting People ex rel. Dept. of Corporations v.
SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (quoting Code
Civ. Proc., § 128(a)(5))).) “‘[D]isqualification motions involve a
conflict between the clients’ right to counsel of their choice and the need to
maintain ethical standards of professional responsibility.’” (Id.
at 694-95.) “‘The paramount concern must be to preserve public trust in
the scrupulous administration of justice and the integrity of the bar.’”
(Id. at 695.) “‘The important right to counsel of one’s choice
must yield to ethical considerations that affect the fundamental principles of
our judicial process.’” (Id.) In exercising its discretion
to disqualify an attorney, the Court is required to make a reasoned judgment
which complies with the legal principles and policies applicable to the issue
at hand. ¿(Henriksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th
109, 113.) ¿
When evaluating a motion to disqualify
counsel on the basis of the advocate-witness rule, courts consider three
factors. First, when “an adversary declares his intent to call opposing counsel
as a witness, prior to ordering disqualification of counsel, the court should
determine whether counsel’s testimony is, in fact, genuinely needed.” (Smith,
Smith & Kring v. Superior Ct. (Oliver), 60 Cal. App. 4th 573,
580 (1997); Lopez v. Lopez, 81 Cal. App. 5th 412, 424 (2022).) Second,
“the court must consider the possibility counsel is using the motion to
disqualify for purely tactical reasons. (Smith, Smith & Kring, 60
Cal. App. 4th at 580.) Third, “the court must consider 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.” (Id.)
Here, Pak has neither filed a proper
motion to disqualify Cross-Defendants nor discussed the relevant factors above.
Accordingly, Pak’s request to disqualify
Cross-Defendants counsel is denied, without prejudice.
With regard to Cross-Defendants’ request
to bifurcate trial, the Court finds that Cross-Defendants have not shown, at
this time, that the convenience of witnesses, the ends
of justice, or the economy and efficiency of handling the litigation would be
promoted by a bifurcated trial. Indeed, Cross-Defendants admit that there are
overlapping issues between the Complaint, Norris XC, and some claims in Pak XC.
Therefore, trying those overlapping issues at the same time is more efficient
than a bifurcated trial. Notwithstanding that conclusion, it is not evident
that bifurcating trial will result in mooting the claims Cross-Defendants have
identified in the cross-complaints. For example, the first cause of action for
breach of contract in Pak XC (a claim that Cross-Defendants claim would be
moot), goes beyond determining who the files in the Wilshire office belonged
to. In that claim, Pak also alleges that Brown and Brown Law Corp. also breached
the relevant contract by physically excluding her from the Wilshire office.
(Pak XC, 55.) Therefore, it is unclear how finding the owner of the files will
moot that issue.
For
those reasons, the motion to bifurcate trial is denied, without prejudice.
It
is so ordered.
Dated: August 5, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court