Judge Michael E. Whitaker, Case Number: 23SMCV01044, Date: 2025-05-08 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV01044, Date: 2025-05-08 Tentative Ruling

This case is a landlord/tenant dispute regarding the conditions of real property Plaintiffs Jennifer Flynn Adams (“Flynn”) and Christoper Adams (together, “Plaintiffs”) leased, with the intent to purchase.

Plaintiffs’ operative second amended complaint (“SAC”), alleges fifteen causes of action for (1) breach of statutory duties; (2) negligence; (3) maintenance of a nuisance; (4) trespass; (5) breach of lease agreement; (6) breach of contract; (7) fraud and deceit; (8) negligent misrepresentation; (9) breach of the duty of good faith and fair dealing; (10) quantum meruit; (11) intentional interference with prospective economic advantage; (12) negligent interference with prospective economic advantage; (13) unfair business practices; (14) intentional infliction of emotional distress; and (15) declaratory and injunctive relief.

On April 8, 2024, Defendant and Cross-Complainant E&TB Investments LL C(“E&TB”) filed a verified cross-complaint against Plaintiffs for (1) breach of written lease; and (2) declaratory relief.

Plaintiffs have now filed three motions: (1) OSC re contempt; (2) motion to disqualify counsel; and (3) motion to continue trial. Defendant Tara Broida (“Broida”) opposes the motion to continue trial and Defendants Broida, E&TB, and Bessemer Trust Company of California (“Bessemer”) oppose the OSC re contempt and the motion to disqualify counsel. Plaintiffs reply to all motions.

The Court rules as follows concerning E&TB’s evidentiary objections to the Declaration of Kent G. Mariconda in support of Plaintiffs’ Motion to Disqualify Counsel:

The Court rules as follows with respect to E&TB’s evidentiary objections to the Declaration of Jennifer Flynn Adam in support of Plaintiffs’ Motion to Disqualify Counsel:

The Court rules as follows with respect to E&TB’s evidentiary objections to the Declaration of Kent G. Mariconda in support of Plaintiffs’ Motion for contempt of Court:

The Court rules as follows with respect to E&TB’s evidentiary objections to the Declaration of Jennifer Flynn Adam in support of Plaintiff’s Motion for Contempt:

The Court rules as follows with respect to Plaintiffs’ objection to the omnibus declaration of Derrick F. Coleman, Esq.:

The Court rules as follows with respect to Plaintiffs’ objection to the declaration of Mark Baute and Artyom Baghdishyan:

The Court rules as follows with respect to Plaintiffs’ objection to the Declaration of Tara Daughrity Broida:

EXHIBIT “1”: The License Status of Derrick Fields Coleman License #170955. AND THE FACT THAT His license status on 7/2/2024 was “Inactive” and he was “Not eligible to practice law in CA.” He is not listed as being “Active again until 7/16/2024. The court is requested to take judicial Notice of this fact under Evidence Code §§451(c), 452(h), and 453. (ATTACHED AS Exhibit “1” to this Motion.)

EXHIBIT “2”: The STIPULATION AND ORDER REGARDING PLAINTIFFS' FIRST AMENDMENT TO SECOND AMENDED COMPLAINT SUBSTITUTING CORRECT NAMES OF DEFENDANTS IN PLACE OF INCORRECT NAMES and the fact of its signing by Derrick Fields Coleman on July 12 and by the Court on July 16. (ATTACHED AS Exhibit “2” to this Motion.)

EXHIBIT “3”: STIPULATION AND PROTECTIVE ORDER-CONFIDENTIAL DESIGNATION ONLY and the fact of its signing by Derrick Fields Coleman on July 12 and by the Court on July 16. (ATTACHED AS Exhibit “3” to this Motion.)

With regard to Exhibits 2 and 3, judicial notice may be taken of records of any court in this state. (Evid. Code, § 452, subd. (d)(1).) Because the requested documents are court records, the Court may take judicial notice of them. (Ibid.) However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].)

Accordingly, the Court takes judicial notice of the existence and filing of Exhibits 2 and 3, and the legal consequences thereof, but not the truth of the allegations contained therein.

Regarding Exhibit 1, courts can take judicial notice of “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) Here, attorney Derrick Fields Coleman’s state bar licensing status is a fact that is not reasonably subject to dispute and capable of immediate and accurate determination by referring to the state bar’s website.

Therefore, the Court grants Plaintiffs’ request for judicial notice of Exhibit 1.

Abuse of the process or proceedings of the court, or falsely pretending to act under authority of an order or process of the court and disobedience of any lawful judgment, order, or process of the court constitute contempt of the legal authority of the court. (Code Civ. Proc., § 1209, subd. (a)(4) & (5).)

“When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.” (Code Civ. Proc., § 1211, subd. (a).)

“Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that the person is guilty of the contempt, a fine may be imposed on the person not exceeding one thousand dollars ($1,000), payable to the court, or the person may be imprisoned not exceeding five days, or both. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.” (Code Civ. Proc., § 1218, subd. (a).)

“Where the primary object of contempt proceedings is to protect the rights of litigants, the proceedings are regarded as civil in character. On the other hand, where the object of the proceedings is to vindicate the dignity or authority of the court, they are regarded as criminal in character even though they arise from, or are ancillary to, a civil action.” (In re Nolan W. (2009) 45 Cal.4th 1217, 1236.) Thus, “[c]ivil contempt is a forward-looking remedy imposed to coerce compliance with a lawful order of the court.” (Ibid.) By contrast, “criminal contempt may be used to punish past conduct in violation of a court order.” (Id. at p. 1237.)

“Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active licensee of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment.” (Bus. & Prof. Code, § 6126, subd. (a).)

Further, assuming to be an officer or attorney of a court and acting as such, without authority, constitutes contempt of the authority of the court. (Bus. & Prof. Code, § 6127, subd. (a).)

“The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive.” (Code Civ. Proc., § 1222.)

“A trial court's authority to disqualify an attorney derives from the power inherent in every court to 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.” (In re Charlisse C. (2008) 45 Cal.4th 145, 159, internal quotations & citations omitted (hereafter Charlisse).)

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:

(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2) The unavailability of a party because of death, illness, or other excusable circumstances;

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7) The court's calendar and the impact of granting a continuance on other pending trials;

(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.

(1) an order of Contempt against Defense Counsel Derrick Fields Coleman (“Coleman”) and the law firms of Coleman Frost LLP and Baute Crochetiere Hartley & McCoy LLP and for monetary sanctions and attorneys’ fees in the amount of $18,020.14 against counsel and Defendant Bessemer;

(2) to disqualify Defense Counsel Derrick Fields Coleman (“Coleman”) and the law firms of Coleman Frost LLP and Baute Crochetiere Hartley & McCoy LLP; and

(3) to continue the trial, currently scheduled for August 4, 2025, and all attendant discovery cut-off dates by at least six months.

The gravamen for all three motions is that attorney Coleman practiced law during the timeframe of July 2, 2024 to July 15, 2024, when his California Bar status was inactive. (See RJN Ex. 1.) Specifically, late in the afternoon of Friday, July 12, 2024, attorney Coleman received an email from the State Bar informing him that he had been placed on an administrative inactive status effective July 2, 2024 for failure to comply with the Client Trust Account Protection Program (“CTAPP”) reporting requirements. (Coleman Decl. ¶ 2.) In February 2024, Attorney Coleman had entered the required information in the State Bar attorney portal, but had apparently neglected to click “submit.” (Id. at ¶ 5.)

At the time Attorney Coleman received the email informing him of his inactive status, the State Bar was already closed for the weekend. (Coleman Decl. ¶ 6.) He spent the weekend researching what had gone wrong with his CTAPP non-compliance. (Ibid.) On Monday, Attorney Coleman logged on to the State Bar website, completed the CTAPP self-reporting requirement and paid the noncompliance late and/or reinstatement fee. (Ibid.) As a result, Attorney Coleman’s status was re-enrolled as “active” effective July 16, 2024. (Ibid.)

On July 12, while Attorney Coleman was technically under administrative inactive status, but before he was aware of it, he signed the stipulation and protective order in this case on behalf of Defendants. Counsel for Plaintiffs filed that stipulation and protective order with the Court on July 16, 2024, and the Court granted it the same day.

Based on this administrative oversight, which Attorney Coleman corrected as soon as it was brought to his attention, Plaintiffs have now filed three separate motions with the Court, seeking an order of contempt against all of Defendants’ counsel; an order disqualifying all of Defendants’ counsel, monetary sanctions, attorneys’ fees, claw-backs of all discovery produced pursuant to the protective order; and a continuance of the trial and all related discovery cut-off dates by at least six months.

“Although the statute does not make this clear, a contempt sanction requires proof of willful failure to obey. A party shown unable to comply (e.g., as the result of illness) is not ‘disobedient’ and cannot be held in contempt.” (Weil & Brown, Cal Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) Ch. 8M-7, ¶ 7. [8:2440].) Thus, “[p]unishment for contempt can only rest upon a clear, intentional violation of a specific, narrowly drawn order.” (Van v. LanguageLine Solutions (2017) 8 Cal.App.5th 73, 82; see also Chapman v. Superior Court for Los Angeles County (1968) 261 Cal.App.2d 194, 199-201 [no contempt where record did not support finding of a knowing or willful refusal to act, as oppose to inadvertence].) Further, Courts have the inherent power to disqualify counsel in furtherance of justice. (Charlisse, supra, 45 Cal.4th at p. 159.)

The Court does not find on the record before it any such willful conduct warranting an order of contempt or disqualification. Attorney Coleman has been an active member of the state bar since June 2, 1994, and has had no disciplinary actions on his record in that entire time. (RJN Ex. 1.) He was both an attorney and counsel of record for Defendants in this matter both before and after the period of July 2, 2024 to July 15, 2024, and he signed the protective order in this matter in good faith as an agent for Defendants. Further, the parties have all relied on the protective order in good faith in their production of documents.

Attorney Coleman corrected the technical, administrative issue with the State Bar as soon as practicable once it was brought to his attention. At no point did Attorney Coleman knowingly or willfully hold himself out as an active member of the bar once he had reason to know he was not. Rather, as a licensed member of the bar for over thirty years, he practiced law as usual until this administrative error was brought to his attention, at which point he corrected it right away.

In short, the Court does not find that the technical administrative mishap that occurred while Attorney Coleman attempted to submit his CTAPP compliance reporting in any way warrants contempt sanctions, attorney disqualification, or monetary sanctions.

Nor does this temporary technical glitch compromise the protective order he signed on behalf of Defendants before the administrative error was brought to his attention. All parties are currently still engaged in this litigation, and Attorney Coleman’s status has since been reinstated to active. No one disputes that Attorney Coleman signed the protective order in good faith as Defendants’ agent, and there is no evidence in the record that Defendants have conducted themselves in any manner that is inconsistent with adhering to that agreement with respect to the treatment of confidential documents.

Furthermore, the Baute law firm, as Tara Daughrity Broida’s agent, is also held to the terms of the protective order, notwithstanding that it was entered before Baute appeared as counsel in this matter. The protective order was signed on behalf of the parties to the litigation. As Tara’s new agent, Baute is held to the terms of the agreement with equal force. As such, all parties and their attorneys are duly held to the terms of the existing stipulation and protective order.

Equally important, the Court entered the Protective Order on July 16, 2024, and there has been no attempt by any party to request that the Court vacate the order for any reason. Consequently, the Court finds that the order remains valid, and the Court has expected and continues to expect that the parties will comply with the Protective Order. Because the Court finds no issue with the state of the protective order or the documents produced in discovery thereunder, the Court similarly finds no basis to continue the trial or related discovery cut-off dates.

The Court does not find warranted an order of contempt sanctions, nor does it find any basis to disqualify counsel, or to continue the trial or discovery deadlines.

Further, the Court admonishes the parties to litigate this case with the upmost professionalism and courtesy, with a concerted effort to avoid squandering unnecessarily both party and judicial resources going forward.[1]

For the reasons stated, Plaintiffs motions for contempt sanctions, to disqualify counsel, and to continue the trial are denied in their entirety.

Plaintiffs shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] The Superior Court of Los Angeles County, Local Rules, rule 3.26, provides that “[t]he guidelines adopted by the Los Angeles County Bar Association are adopted as civility in litigation recommendations to members of the bar, and are contained in Appendix 3.A.” In particular, the guidelines state: “Counsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally.” (See id. at Rule 3.26(d)(1).)

DEPARTMENT	207
HEARING DATE	May 8, 2025
CASE NUMBER	23SMCV01044
MOTIONS	(1) OSC re Contempt (2) Disqualify Counsel (3) Continue Trial
MOVING PARTIES	Plaintiffs Jennifer Flynn Adams and Christopher Adams
OPPOSING PARTIES	(1) Defendant Tara Broida; Defendant Bessemer Trust Company of California, joined by Defendant E&TB Investments LLC and Defendant Tara Broida (2) Defendant E&TB Investments LLC, joined by Defendant Tara Broida; Defendant Bessemer Trust Company of California, joined by Tara Broida (3) Defendant Tara Broida