Judge: Michael E. Whitaker, Case: 24SMCV02301, Date: 2025-04-08 Tentative Ruling

Case Number: 24SMCV02301    Hearing Date: April 8, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from a dispute between a client and former counsel in connection with a premises liability case. 

On May 15, 2024, Plaintiff Lori Hoeft (“Plaintiff”) filed suit against Defendants Christopher Terrence Aumais and Good, Gustafson, Aumais, LLP (collectively, “Defendants”). 

Plaintiff now moves to disqualify Nemecek & Cole from representing Defendants.  Defendants oppose the motion and Plaintiff replies.

EVIDENTIARY OBJECTIONS

            The Court rules as follows with respect to Defendants’ evidentiary objections:

1. Sustained
2. Sustained
3. Sustained
4. Sustained
5. Sustained
6. Sustained
7. Sustained
8. Overruled
9. Overruled
10. Overruled
11. Sustained
12. Sustained
13. Overruled
14. Overruled
15. Overruled
16. Overruled
17. Sustained
18. Sustained
19. Overruled
20. Overruled
21. Sustained
22. Overruled
23. Sustained
24. Sustained
25. Sustained
26. Overruled
27. Sustained
28. Overruled

ANALYSIS

“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.)

Per Business and Professions Code section 6068, subdivision (e), an attorney has an obligation to maintain client confidences.  (Bus. & Prof. Code, § 6068, subd. (e).)  When an attorney’s representation of a current client may conflict with the interests of a former client, the duty to maintain client confidences is jeopardized.  (M'Guinness v. Johnson (2015) 243 Cal.App.4th 602, 613.)  Where an attorney’s representation of a former client is substantially related to the attorney’s representation of a current client, a presumption arises that the attorney has obtained confidential information from the former client.  (See Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465, 480.) 

“To rebut the presumption, the challenged attorney has the burden of showing that the practical effect of formal screening has been achieved.  The showing must satisfy the trial court that the employee has not had and will not have any involvement with the litigation, or any communication with attorneys or coemployees concerning the litigation, that would support a reasonable inference that the information has been used or disclosed.  If the challenged attorney fails to make this showing, then the court may disqualify the attorney and law firm.”  (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 596.)

Plaintiff argues that she contacted attorneys Marshall Cole and Patrick Maher of Nemecek & Cole, now Defendants’ counsel of record in this matter, for prospective representation, but never signed a conflict waiver.  Further, Plaintiff contends her “mentor and personal counsel, Neville Johnson, Esq.” is represented by Nemecek & Cole.  The timeline Plaintiff presents is as follows:

• In 2017, Plaintiff first met Marshall Cole at a Beverly Hills Bar Association continuing education event, where Plaintiff went to see Neville Johnson speak.  At that event, Marshall Cole referred Plaintiff to an attorney.  (Exhibit 2.)

• Plaintiff reached out to Marshall Cole by email on August 14, 2023, November 17, 2023, December 1, 2023, and September 26, 2024.  (Exhibit 3.)

• Plaintiff phoned Nemecek & Cole on February 6, 2025 and inquired if they could represent her in a legal malpractice lawsuit.  She spoke to a clerical worker named “Beverly” who informed Plaintiff that the firm did not represent Defendants. 

• Beverly Godinez submitted a declaration denying that the call took place. (Godinez Decl. at ¶ 2.)

• Janette De La Cruz submitted a declaration indicating she answered a phone call from Plaintiff in February 2025.  She told Plaintiff that Marshall Cole was unavailable, but did not discuss conflicts with Plaintiff.  (Cruz Decl. ¶¶ 2-3.)

• Plaintiff has provided what appears to be a phone log indicating a phone call on February 6.  (Exhibit 4.)  It is unclear from the heavily redacted phone log whether the call is incoming or outgoing or how long the call was.

• On February 10, Plaintiff sent Nemecek & Cole an email requesting a meet and confer, to which Marshall Cole responded, “You send me unsolicited emails and leave voice messages which do not get returned.  You do this at your own peril.”

• Also on February 10, Plaintiff sent Frank Nemecek an email requesting that he “stand down” because of the conflict of interest.  (Exhibit 6.)

• On February 14, Plaintiff reported these “intimidation tactics” to Frank Nemecek.

• On February 14 and 21, Nemecek & Cole sent Plaintiff letters threatening sanctions if she sought default against Defendants.  (Exhibit 5.)

• On February 26 or 27, Neville Johnson phoned Plaintiff to arrange a Zoom call, which took place in early March 2025, during which Zoom call, Neville Johnson told Plaintiff he was also being represented by Nemecek & Cole.  (Exhibit 7.)

As discussed above, however, the Court sustains Defendants’ objections to Plaintiff’s exhibits, as they are unauthenticated and lack foundation.  As such, Plaintiff has not met her burden of proof to demonstrate that an attorney-client relationship ever existed between herself and Nemecek & Cole.

Moreover, even if the Court were to consider the exhibits, Plaintiff has not established that any attorney-client relationship was created.  The emails Plaintiff sent to Nemecek & Cole on August 14, 2023, November 17, 2023, December 1, 2023, and September 26, 2024 are almost entirely redacted, and therefore, do not contain any proof that an attorney-client relationship was created or that any sensitive information was divulged.  Furthermore, the subject lines indicate that Plaintiff was sending these emails unsolicited, and it appears from the record that the emails were not replied to. 

Further, Defendants have provided the Declaration of Marshall R. Cole, which provides:

3. I have met Hoeft exactly once. Sometime in 2017, I gave a CLE presentation for lawyers at a Beverly Hills Bar Association event. I spoke with Neville Johnson, an attorney I knew professionally. Mr. Johnson introduced me to Hoeft. Around the same time, I provided a recommendation for a plaintiff-side lawyer to meet with in a lawsuit called Hoeft v. Rastegar Law Group, APC, No. BC638394. I never spoke to Hoeft again. I have never referred her to any other attorney, including for the constellation of lawsuits she currently is maintaining.

4. From time to time, Hoeft has left unsolicited voicemails. I have never listened to them or returned any phone call she has made after the referral.

5. Nemecek & Cole specializes in the defense of legal-malpractice actions. As a rule, the firm does not take any plaintiff’s work in any legal-malpractice action.

6. On or about May 24, 2024, Nemecek & Cole was retained as attorneys for Aumais and GGA in this action. Hoeft did not serve them the Complaint until a purported date in late January 2025.

7. On October 7, 2024, Hoeft filed case no. 24STCV26044 against Jamal Tooson and his firm. On January 27, 2025, Nemecek & Cole was retained as attorneys for Tooson and his firm.

8. As both the Aumais and Tooson matters come from the same underlying case, but different periods of time, attorney Patrick Maher handles both files.

9. On February 7, 2025, at 9:04 a.m., I received an unsolicited email from Hoeft asking for representation in multiple legal malpractice cases. As I knew the firm had represented defendants against her since May 2024, I did not read her email. She has filed a copy of the email and my response stating, “I did not read your email. Please do not call or email me again. This email is being deleted.” I knew that Mr. Maher was in the process of moving forward on demurrers and motions to strike in both Aumais and Tooson. I understand that his initial meet-and-confer letter in Tooson went out the same day. There is no other contact between Hoeft and me as to her desire for representation in these cases.

[…]

16. Hoeft has made claims as to seeking legal advice in April and December 2023 on these cases. At no point did I or anyone else discuss these cases with her in April or December 2023 or any other date. To her supplemental declaration filed on February 25, 2025, she attached an August 14, 2023, email to me. I never read this email or responded to it. She also attached a September 26, 2024, email to me. Again, I never read this email or responded to it.

17. The firm represents lawyers but does not represent Neville Johnson or his firm in any active litigation. Nemecek & Cole does not represent Neville Johnson in this case or any case involving Lori Hoeft.

(Cole Decl. ¶¶ 3-9, 16-17.)

Therefore, Plaintiff has not established that any attorney-client relationship was created as between herself and Nemecek & Cole to support disqualification.

CONCLUSION AND ORDER

For the foregoing reasons, the Court finds that disqualification is unwarranted.  Specifically, the Court finds that no attorney-client relationship was created between Plaintiff and Nemecek & Cole by virtue of Plaintiff’s unsolicited and unread emails to a law firm that does not take plaintiff’s side legal malpractice cases.  “[T]he purpose of a disqualification must be prophylactic; an attorney may not be disqualified purely as a punitive or disciplinary measure.”  (Neal v. Health Net, Inc. (2002) 100 Cal.App.4th 831, 844.) 

Therefore, the Court denies Plaintiff’s motion to disqualify Defendants’ counsel.  Plaintiff is ordered to provide notice of this order and file a proof of service of such.

DATED:  April 8, 2025                                  ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court