Judge: Monica Bachner, Case: 20STCV06417, Date: 2022-09-29 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV06417    Hearing Date: September 29, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING 

Plaintiff Artur Roushanian’s motion to disqualify counsel is denied. Plaintiff’s request for monetary sanctions is denied.

Defendant BMW of North America, LLC’s request for monetary sanctions is denied.

          Plaintiff Artur Roushanian (“Roushanian”) (“Plaintiff”) moves for an order to disqualifying Lehrman Law Group and/or Lehrman, Villegas, Chinery & Douglas, LLP (collectively “LVCD”) and attorney Suzy Haroutunian (“Haroutunian”) (collectively, “Defense Counsel”), defense counsel for Defendant BMW of North America, LLC (“BMW NA”) (“Defendant”). Plaintiff moves for disqualification in connection with Defense Counsel’s misconduct, misuse of the discovery process, suppression of evidence, and spoliation of evidence and events related to this proceeding. (Notice of Motion, pg. 2.)  Plaintiff also moves for an order imposing monetary sanctions against Defendant and Defense Counsel in the amount of $44,406.50.  (Notice of Motion, pgs. 1-2.)  Defendant moves for an order imposing monetary sanctions against Plaintiff in the amount of $5,000. (Opposition, pg. 2.)

          Background

          Plaintiff filed his Complaint on February 18, 2020, alleging four causes of action for (1) violation of Song-Beverly Consumer Warranty Act; (2) Breach of Implied Warranty of Merchantability; (3) Negligent Repair; and (4) Misrepresentation. During discovery, Plaintiff propounded Request for Production of Documents (“RFP”) (Set One) seeking information related to his claims, with Defendant’s responses due on August 14, 2020.  On August 21, 2020, after Defendant did not respond to Defendant’s discovery request, Plaintiff filed a Motion to Compel Responses.  On March 8, 2021, this Court granted Plaintiff’s motion and ordered Defendant to respond to Plaintiff’s RFP (Set Two) without objections.  On March 16, 2021, Defendant paid $1,150.65 in discovery sanctions to Plaintiff.  On May 21, 2021, Defendant objected to Plaintiff’s RFP because the requests seek “confidential and proprietary information and/or Trade Secrets.”  On November 30, 2021, Plaintiff propounded RFP (Set Three), to which Defendant objected on January 4, 2021, on the same basis.  On January 25, 2022, Defendant filed an Ex Parte Application for an order requiring Plaintiff to make his vehicle available for inspection.  On January 26, 2022, this Court ruled, “Plaintiff shall produce his vehicle for a vehicle inspection by February 18, 2022. Defendant to produce print-out or PDF of all data retrieved from the vehicle on the date of the inspection within 24 hours of the inspection.” (1/26/22 Minute Order.)  Plaintiff produced his vehicle for inspection on February 15, 2022.  On February 25, 2022, Defendants produced a DropBox Link of the data of six files and photos, dated February 17, 2022.  Plaintiffs filed a Motion for Terminating Sanctions on February 22, 2022, and an associated Ex Parte Application.  This Court denied Plaintiff’s Ex Parte Application.  (2/24/22 Minute Order.)  Plaintiff filed an Ex Parte Application to Disqualify Counsel, compel a deposition and pay fees for a forensic computer analysis on February 28, 2022. This Court denied Plaintiff’s Ex Parte Application as to the disqualification of Defense Counsel and the deposition, and granted theapplication as to the forensic computer analysis. (3/11/22 Minute Order.)  This Court denied Plaintiff’s Motion for Terminating Sanctions on July 11, 2022. Plaintiff filed the instant motion to disqualify Defense Counsel on June 24, 2022.

Legal Standard

“‘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. [Citations.]’ [citation] ‘. . . The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one'’ choice must yield to ethical considerations that affect the fundamental principles of our judicial process.’ [citation]” (Kirk v. First American Title Insurance Co. (2010) 183 Cal.App.4th 776, 791-792; citing C.C.P. §128(a)(5).) 

In ruling on a motion to disqualify, the court should weigh: (1) the party’s right to counsel of choice; (2) the attorney’s interest in representing a client; (3) the financial burden on a client of change of counsel; (4) any tactical abuse underlying a disqualification motion; and (5) the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel.  (Mills Land & Water Co. v. Golden West Refining Co.  (1986) 186 Cal.App.3d 116, 126.)

“Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.) California, however, permits a non-client to move for disqualification of opposing counsel under certain circumstances. “[W]hile federal courts generally limit standing to bring disqualification motions to clients or former clients [citation], in California ‘where the ethical breach is “‘manifest and glaring’ and so ‘infects the litigation in which disqualification is sought that it impacts the moving party's interest in a just and lawful determination of [his or] her claims’ [citation], a nonclient might meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest or other ethical violation. [Citation].” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204-1205.) “Accordingly, we conclude that where an attorney’s continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel.” (Id. at pg. 1205.)

Analysis

Taking into consideration the factual background discussed above relating to Defense Counsel’s alleged misconduct, misuse of the discovery process, suppression of evidence, and spoliation of evidence, the Court finds disqualification of Defendant’s Counsel is not warranted. 

Plaintiff alleges on March 16, 2022, Defendant “found” sixty-four additional files pursuant to a protective order one month after the February 2022 inspection of Plaintiff’s vehicle. (Davoodi Decl, ¶ 18.)  Plaintiff states that Defendants cannot explain how the 64 files, “which were not claimed to have been produced on the phantom USB [stick mentioned in Haroutunian’s March 1, 2022, declaration] were only produced pursuant to a protective order a month after the inspection. “It was clear that defense counsel and defendants lied to spoil the evidence.”  (Id. ¶ 18.)  Plaintiff further alleges Defendants “repeatedly refused to allow a forensics analysis of the hard-drive” pursuant to the March 11, 2022, Ex Parte Application authorizing a forensic computer analysis.  (Id., ¶ 21, Motion, pg. 3.)  Plaintiff alleges the data produced by Defendant is “no longer ‘pure’ and clearly ‘tainted’” by spoliation of the evidence.  (Davoodi Decl., ¶ 23.)  Plaintiff alleges Defendant’s data, produced on March 16, 2022—38 days after the production deadline—shows that the documents were “pulled on February 28, 2022,” which demonstrates “(1) that BMWNA combed through the data from February 25, 2022 and allowed it to be printed on February 28, 2022, and that (2) defense counsel then combed through them and gave them to only once cleansed.”  (Id.  ¶ 21.)

Plaintiff has not provided substantial grounds for disqualification. Plaintiff has not established that Haroutinian perjured herself as claimed. Moreover, the motion is based upon the declaration of counsel, and does not establish what it claims -- that BMWNA and counsel combed through and cleansed the date. Plaintiff did not produce evidence of the alleged spoliation of Defendant’s data produced from the February 2022 inspection, namely, such as by conducting an additional examination of Plaintiff’s vehicle by a neutral party, or by a forensics analysis of the hard drive. Indeed, as Plaintiff concedes, a forensics analysis has still not taken place because Plaintiff’s expert has been out of the country for a summer vacation.  (Decl. of Davoodi ¶22 fn.8.)  Plaintiff’s evidence does not establish that Defense counsel has committed a “manifest and glaring” ethical violation.

Finally, Defendant has a right to counsel of choice, and change of Defense Counsel at this stage in litigation will result in further delay and the financial burden to both parties. (Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126.)   Weighing all of the factors, this Court determines that disqualification of Defense Counsel is not warranted. (Id.)

Sanctions

Plaintiff requests an award of monetary sanctions against Defendant in the amount of $44,406.50 pursuant to C.C.P. §128 and C.R.C. 2.30 to pay all costs and attorneys’ fees associated with the vehicle inspection, ex parte application, and the instant motion.  Plaintiff requests this Court award sanctions under the “broad power granted to it” to preserve and enforce order in its immediate presence. This Court declines to award sanctions under C.C.P. §128. This Court declines to award sanctions pursuant to C.R.C. 2.30.

          Defendant requests an award of monetary sanctions against Plaintiff in the amount of $5,000.00 pursuant to C.C.P. §2023.010 for misuse of the discovery process. Defendant’s basis for sanctions is prosecution of a discovery motion without substantial justification. This Court declines to award sanctions pursuant to C.C.P. §2023.010.

Based on the foregoing, Plaintiff’s motion to disqualify Defense Counsel is denied.  Plaintiff’s request for monetary sanctions is denied.  Defendant’s request for monetary sanctions is denied.

Dated:  September _____, 2022

Hon. Monica Bachner

Judge of the Superior Court