Judge: Nathan R. Scott, Case: Cordero v. United Studios FR, Date: 2022-12-02 Tentative Ruling

Plaintiff Anthony Cordero’s motion to disqualify counsel is denied.

The motion is timely.  Unlike the disqualification motion in the related Raijin action, this motion was not filed after the dispute was arbitrated and the arbitration award/dismissal was confirmed.  The same unreasonable delay and extreme prejudice is not present here.  (See 9/16/22 & 10/7/22 orders in Case #21-1181338.)  This case is still at the pleading stage. 

But plaintiff fails to show that attorney Kushner served as a mediator or third-party neutral.  (See Cal. Rules Prof. Conduct, rule 1.12(a) [prohibiting “mediator or other third-party neutral” from later representing a party thereto]; rule 2.4(a) [“A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute”]; see also Kushner decl. ¶¶ 4, 20-22, 31 & Ex. 3 [USFR operating agreement designating Kushner and his firm as its counsel]; Cordero decl. ¶ 3.)  

Not every discussion of the case involving the parties and a third party is a mediation.  Settlement discussions,  for example, are not necessarily mediations.  Kushner’s colloquial use of the word “mediate” in his letter summarizing the February 2017 meeting (see Cordero decl. Ex. A) does not transform the discussion into a mediation.

Plaintiff further fails to show Kushner mediated the parties’ disputes from late-2019 to now.  To the contrary, Kushner explicitly refused to mediate the parties’ disputes without signed conflict waivers (see Cordero decl. Ex. B) or in any capacity other than as company counsel (see id. at Ex. E).

The parties copied Kushner on their emails and communications in his capacity as USFR’s “corporate lawyer” who “represent[s] the LLC.”  (See Cordero decl. Exs. C, E.)

Cordero’s reliance on Kushner’s 3/4/20 email is similarly unavailing.  (See Cordero Decl. ¶ 13 & Ex. D.)  Kushner’s effort to dissuade Cordero from “air[ing] the company’s dirty laundry to its customers” does not render him a mediator or third-party neutral. 

Plaintiff shall give notice.