Judge: Richard S. Whitney, Case: 37-2017-00007771-CU-PO-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2017-00007771-CU-PO-CTL JOSE A HERRERA VS. SECURITAS SECURITY SERVICES USA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT SECURITAS SECURITY SERVICES USA, INC.'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL is DENIED.

Defendant SECURITAS SECURITY SERVICES USA, INC. ('Defendant') seeks to disqualify Plaintiff's counsel because Plaintiff's counsel purportedly violated California Rules of Professional Conduct, Rule 3.3, subdivision (a)(1); Rule 3.4, subdivision (f); Rule 4.2, subdivision (a); and Rule 4.3, subdivisions (a) and (b).

The disqualification of counsel is within the sound discretion of the trial court, to be made on a case-by-case basis. (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 601.) A motion to disqualify 'involves a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern, though, must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar.' (Id. at 586.) 'On the other hand, it must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorney's innocent client, who must bear the monetary and other costs of finding a replacement. A client deprived of the attorney of his choice suffers a particularly heavy penalty where [] his attorney is highly skilled in the relevant area of the law.' (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300.) 'Additionally, as courts are increasingly aware, motions to disqualify counsel often pose the very threat to the integrity of the judicial process that they purport to prevent. [Citation] Such motions can be misused to harass opposing counsel [Citation], to delay the litigation [Citation], or to intimidate an adversary into accepting settlement on terms that would not otherwise be acceptable.' (Id. at 300-301 [Citations omitted].) The Court, again, does not find that the facts sufficiently support the drastic measure of disqualifying Plaintiff's counsel. Defendant has had ample time to address the failure by Plaintiff's counsel to serve Defendant with notices. The Court finds Defendant has not demonstrated that public trust would be diminished by refusing to disqualify Plaintiff's counsel. On the other hand, Plaintiff would likely suffer great hardship given the number of years Plaintiff's counsel has worked on Plaintiff's case and the proximity to trial.

Defendant cites to Plaintiff's failure to serve Defendant with motions and orders of this Court related to Defendant Alfonso S. Preciado ('Preciado') and discovery. This is nothing new. Defendant has been aware of this issue for years. Defendant's effort to raise it now, shortly before trial, smacks of a dilatory tactic. Defendant also raises the issue of the declaration of Preciado obtained by Plaintiff's counsel. The Court already addressed this issue in its prior order denying Preciado's motion to disqualify.

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3016072  56 CASE NUMBER: CASE TITLE:  JOSE A HERRERA VS. SECURITAS SECURITY SERVICES USA INC  37-2017-00007771-CU-PO-CTL The only new allegations of misconduct are related to the filing of the TRC report and the subpoenaing of Defendant's PMK. Plaintiff's counsel crossed out facts that were not undisputed without first getting Defendant's approval. Plaintiff's counsel provides a satisfactory explanation for this failure – Defendant continually inserted purportedly undisputed facts which were in fact disputed by Plaintiff, and it was too late in the day to again meet and confer with Defendant's counsel before filing the TRC report.

Defendant paints Plaintiff's counsel's actions as knowingly misrepresenting facts to the Court when Plaintiff's counsel was striving to prevent facts from being misrepresented as undisputed to the Court.

The Court finds Plaintiff's counsel's actions do not support disqualification.

Finally, Defendant cites the subpoena served on Defendant's PMK, Ms. Senados. Plaintiff's counsel explains why he believed Ms. Senados was not currently employed by Defendant. Given that there is nothing before the Court that Plaintiff's counsel spoke to Ms. Senados about the merits of this case, the Court finds Plaintiff's counsel's mistake was harmless. The Court cannot find that Plaintiff's counsel attempted to make contact with Ms. Senados knowing that she was a represented party, rather than a former employee. Further, the Court notes that the case Snider v. Superior Court (2003) 113 Cal.App.4th 1187 supports that disqualification would not be appropriate. The court in Snider stated: We emphasize, however, that counsel desiring to contact an employee of a represented organization should endeavor to ensure, prior to the contact, that the employee, either because of his or her status within the organization or the subject matter of the proposed communication, does not come within the scope of rule 2–100. Further, once contact is made, counsel should at the outset pose questions designed to elicit information that would determine whether the employee comes within rule 2–100's scope and should not ask questions that could violate the attorney-client privilege. By the same token, if organizations do not want employees within the scope of rule 2–100 to have contact with opposing counsel, it is incumbent upon them to take proactive measures to ensure that the employees and opposing counsel understand the organization's position. Ethical violations and unnecessary litigation over such ex parte contacts would largely be obviated by prudent actions taken by counsel and organizations in applying rule 2–100.

(Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1193–1194.) It does not appear that Plaintiff's counsel had ex parte communications with Ms. Senados about the subject of the representation without Defense counsel, especially a communication that would have potentially resulted in a binding omission by Ms. Senados.

In sum, the Court finds Defendant has not sufficiently justified that the Court should disqualify Plaintiff's counsel. The motion is denied.

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