Judge: Melvin D. Sandvig, Case: 20CHCV00621, Date: 2023-08-09 Tentative Ruling

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Case Number: 20CHCV00621    Hearing Date: November 16, 2023    Dept: F47

Dept. F47

Date: 11/16/23

Case #20CHCV00621

MOTION TO DISQUALIFY COUNSEL

Motion filed on 6/14/23.

MOVING PARTY: Cross-Defendant Raul Perez

RESPONDING PARTY: Defendant/Cross-Complainant Enrique Perez

NOTICE: ok

RELIEF REQUESTED: An order disqualifying William F. Hertz, II as attorney/counsel for any party in this action. 

RULING: The motion is denied.      

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of a dispute between brothers regarding certain real property located in Sunland, California.  On 10/14/20, Plaintiff/Cross-Defendant Raul Perez (Raul) filed his complaint against Enrique Perez, Jonathan Perez; all persons unknown, claiming any legal or equitable right, title, estate, lien or interest in the property described in the complaint adverse to Raul’s title and Does 1-50 for: (1) Quiet Title, (2) Cancellation of Instruments, (3) Breach of Oral Agreement, (4) Constructive Fraudulent Conveyance and (5) Fraud. 

On 6/7/21, attorney William F. Hertz, II (Attorney Hertz), filed an answer and cross-complaint on behalf of Enrique Perez (Enrique) against Raul; Jonathan Perez; The Raul Perez Family Trust; all persons unknown, claiming any legal or equitable right, title, estate, lien or interest in the property described in the cross-complaint adverse to Enrique’s title, or cloud on Enrique’s title thereto and Roes 1-100 for: (1) Quiet Title, (2) Partition by Sale, (3) Breach of Contract, (4) Fraud and Intentional Misrepresentation, (5) Negligent Misrepresentation and (6) Unjust Enrichment. 

On 6/8/21, Attorney Hertz, filed an answer to Plaintiff’s complaint on behalf of Jonathan Perez (Jonathan).  On 7/20/21, Attorney Hertz, filed a cross-complaint on behalf of Jonathan against Raul, Enrique, The Raul Perez Family Trust all persons unknown, claiming any legal or equitable right, title, estate, lien or interest in the property described in the cross-complaint adverse to Jonathan’s title, or cloud on Jonathan’s title thereto and Roes 1-100.

On 3/3/23, Attorney Hertz filed an answer on behalf of Enrique to Jonathan’s cross-complaint.  On 3/3/23, Attorney Hertz filed an answer on behalf of Jonathan to Enrique’s cross-complaint.

On 3/9/23, at 9:53 a.m., Raul filed an ex parte application to Disqualify Attorney Hertz as counsel for Jonathan and Enrique.    

On 3/9/23, at 5:03 p.m., a Substitution of Attorney was filed on behalf of Jonathan substituting in the Law Offices of James A. Gallo as his attorney in place of Attorney Hertz.

On 3/10/23, the ex parte application was denied.  (See 3/10/23 Minute Order).  However, the Court noted that Raul “may serve and file a noticed motion to disqualify counsel” and reserved 6/14/23 for the hearing of such motion.  Id.

On 6/14/23, Raul filed and served the instant motion for an order disqualifying William F. Hertz, II as attorney/counsel for any party in this action.  Enrique filed an opposition to the motion and Raul filed a reply to the opposition. 

On 10/13/23, the Court continued the hearing to 11/16/23 to allow Jonathan Perez to file a declaration regarding the motion.  On 10/31/23, Jonathan filed a declaration.

ANALYSIS

In its 10/13/23 ruling, the Court found that Enrique’s challenges to the motion based on Raul’s lack of standing at the time the motion was filed, deficient memorandum of points and authorities filed in support of the motion and/or delay in bringing the motion did not warrant denial of the motion on procedural grounds as the Court has the inherent power to control the proceedings before it, including the disqualification of counsel when warranted.  See CCP 128(a)(5); SpeeDee Oil Change Systems Inc. (1999) 20 C4th 1135, 1145; Klemm (1977) 75 CA3d 893.

California Rules of Professional Responsibility for California Attorneys, Rule 1.7, “Conflict of Interest: Current Clients,” provides:

“(a) A lawyer shall not, without informed written consent* from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter.

(b) A lawyer shall not, without informed written consent* from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person,* or by the lawyer’s own interests.

(c) Even when a significant risk requiring a lawyer to comply with paragraph (b) is not present, a lawyer shall not represent a client without written* disclosure of the relationship to the client and compliance with paragraph (d) where:

(1) the lawyer has, or knows* that another lawyer in the lawyer’s firm* has, a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter; or

(2) the lawyer knows* or reasonably should know* that another party’s lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer’s firm,* or has an intimate personal relationship with the lawyer.

(d) Representation is permitted under this rule only if the lawyer complies with paragraphs (a), (b), and (c), and:

(1) the lawyer reasonably believes* that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law; and

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

(e) For purposes of this rule, “matter” includes any judicial or other proceeding, application, request for a ruling or other determination, contract, transaction, claim, controversy, investigation, charge, accusation, arrest, or other deliberation, decision, or action that is focused on the interests of specific persons,* or a discrete and identifiable class of persons.*”

In its 10/13/23 ruling, the Court noted that pursuant to Rule 1.7(d)(3), regardless of whether Attorney Hertz provided Enrique and Jonathan with written disclosure and they provided him with “informed written consent,” his continued representation of both Enrique and Jonathan in this action where they have pending cross-claims against one another would be precluded.  (See Hertz Decl. ¶14).  However, as noted above, Attorney Hertz no longer represents Jonathan in this action.  (See Substitution of Attorney filed 3/9/23). 

The Court also noted that the cases cited by Raul do not involve a situation, such as the one currently before this Court, where the party moving to disqualify counsel is/was not one of the parties represented by that counsel.  See State Farm Mutual Automobile Insurance Co. (1999) 72 CA4th 1422; SpeeDee Oil, supra; Kennedy (2011) 201 CA4th 1197, 1204.  Further, the Court   pointed out that Raul had not shown how he will be prejudiced by allowing Attorney Hertz to continue representing Enrique in this action.  Similarly, Raul failed to establish that Attorney Hertz “de facto continues to represent both parties inappropriately” as claimed in the reply.  The fact that Jonathan’s new counsel has filed joinders in papers filed by Attorney Hertz on behalf of Enrique does not establish that attorney Gallo is not independently representing Jonathan’s interests.      

The Court concluded its 10/13/23 ruling by stating that if Jonathan has no objection to Attorney Hertz’s continued representation of Enrique in this action, the Court finds that disqualifying Attorney Hertz from such representation is not warranted.  However, if Jonathan objects to Attorney Hertz’s continued representation of Enrique, the Court finds that disqualification would be warranted.  Therefore, as noted above, the hearing was continued to allow Jonathan to file a declaration indicating whether or not he objected to attorney Hertz’s continued representation of Enrique in this action.  

The declaration filed by Jonathan on 10/31/23, indicates that he has been separately advised by his current attorney, James A. Gallo, regarding any potential for a conflict of interest due to the prior joint representation and Jonathan does not object to attorney Hertz continuing to represent Enrique in this matter.    

CONCLUSION

Based on the foregoing, the motion is denied.