Judge: Robert B. Broadbelt, Case: 20STCV14015, Date: 2023-05-18 Tentative Ruling

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Case Number: 20STCV14015    Hearing Date: May 18, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:              Plaintiff Kazem Sanikhatam, by and through his successor-in-interest, Mitra Azizi, and Mitra Azizi  

RESPONDING PARTIES:     Defendants Persian-American Adult Day Health Care Center, Inc., d/b/a Forever Young Adult Day Health Care Center, Vardkes Esrailian, and Abdul Toukhi    

Motion to Disqualify Defendants’ Counsel

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiffs Kazem Sanikhatam, by and through his successor-in-interest Mitra Azizi, and Mitra Azizi (“Plaintiffs”) move the court for an order disqualifying Norton & Melnik, APC (“Counsel”) from representing defendants Persian-American Adult Day Health Care Center, Inc., d/b/a Forever Young Adult Day Health Care Center (“Forever Young”), Vardkes Ken Esrailian (“Esrailian”), and Abdul Toukhi (“Toukhi”) (collectively, “Defendants”) in this action.  Plaintiffs contend that Counsel’s joint representation of Defendants without written informed consent has violated California Rules of Professional Conduct, rule 1.7.

“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.’”  (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.)  “The paramount concern [when resolving disqualification motions] must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.”  (Ibid.)

The court finds that (1) Plaintiffs do not have standing to bring this motion to disqualify, and (2) even if Plaintiffs did have standing to bring this motion, the evidence presented in connection with this motion does not support disqualification of Counsel.  The court therefore denies Plaintiffs’ motion.

First, the court finds that Plaintiffs do not have standing to disqualify Counsel on the ground that Counsel is jointly representing Defendants.

“A ‘standing’ requirement is implicit in disqualification motions.  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.)  “[A] moving party must have standing, that is, an invasion of a legally cognizable interest, to disqualify an attorney.”  (Id. at p. 1357.)  However, “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.’”  (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204.)  Thus, “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 p. 1205.)

Plaintiffs do not argue that they have a former or current attorney-client relationship with Counsel, and instead seek disqualification based on Counsel’s joint representation of Defendants.  The court finds that Plaintiffs have not presented sufficient evidence or argument showing       (1) that there has been “an invasion of a legally cognizable interest” belonging to Plaintiffs due to Counsel’s joint representation of Defendants, or (2) that there has been an ethical breach that is “manifest and glaring” and “undermine[s] the integrity of the judicial process” that warrants disqualification.  (Great Lakes Construction, Inc., supra, 186 Cal.App.4th at p. 1357; Kennedy, supra, 201 Cal.App.4th at pp. 1204-1205.)  As discussed below, the court finds that the evidence submitted shows that, even though Counsel is representing both facility defendants (i.e., Forever Young and Esrailian) and defendant Toukhi, Counsel obtained written, informed consent from all Defendants.  (Mitrovich Decl., ¶ 5; Mitrovich Decl., Ex. 2 [privilege log].)  Thus, even if Defendants’ interests were adverse to each other, Counsel has complied with rule 1.7 by obtaining informed written consent from each client before representing Toukhi in this action. 

The court therefore finds that Plaintiffs have not shown that Counsel committed a manifest and glaring ethical breach that undermines the integrity of this litigation or violates a legally cognizable interest belonging to Plaintiffs, and therefore have not shown that they, as nonclient moving parties, have standing to move to disqualify Counsel.

Second, even if the court were to conclude that Plaintiffs had standing to bring this motion, the court finds that Defendants have presented evidence showing that Counsel has not committed an ethical breach by jointly representing Defendants that warrants disqualification.

“A lawyer shall not, without informed written consent from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or separate matter.”  (Rules of Prof. Conduct, rule 1.7, subd. (a).)

As set forth above, Defendants have produced a privilege log showing that (1) on September 23, 2021, defendants Forever Young and Esrailian signed an “Informed Consent re Joint Representation” document, and (2) on September 23, 2021, Toukhi signed an “Informed Consent re Joint Representation” document.  (Mitrovich Decl., Ex. 2, p. 2.)  Thus, Defendants have produced evidence showing that Counsel complied with the requirements set forth in rule 1.7.

The court notes that Plaintiffs have introduced transcripts of Toukhi’s two depositions, which were taken on May 26, 2021, and June 8, 2021.  (Gharibian Decl., ¶¶  5-6.)  During the second deposition, Toukhi testified that he did “not sign[] anything” with Counsel.  (Gharibian Decl., Ex. C, Toukhi Dep., p. 5:15-20.)  Plaintiffs appear to contend that Counsel must have obtained written consent from Toukhi as of the date of his depositions.  However, Toukhi was not a defendant in this matter until Plaintiffs filed an “Amendment to Complaint” on August 18, 2021, that identified Toukhi as Doe defendant 1.  Toukhi first appeared in this action on October 1, 2021, by filing his answer to Plaintiffs’ Complaint.  As of the date that Toukhi made an appearance in this action, Counsel had obtained informed consent from him regarding its joint representation of Defendants.  (Mitrovich Decl., Ex. 2, p. 2 [privilege log showing informed consent document dated September 23, 2021].)  

The court therefore finds that Defendants have shown that Counsel’s representation of Defendants does not constitute an ethical breach or violation of California Rules of Professional Conduct, rule 1.7.

ORDER

The court denies plaintiffs Kazem Sanikhatam, by and through his successor-in-interest Mitra Azizi, and Mitra Azizi’s motion to disqualify counsel.

The court orders defendants Forever Young Adult Day Health Care Center, Vardkes Ken Esrailian, and Abdul Toukhi to give notice of this ruling.

IT IS SO ORDERED.

DATED:  May 18, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court