Judge: Robert B. Broadbelt, Case: BC660631, Date: 2023-02-24 Tentative Ruling

Case Number: BC660631    Hearing Date: February 24, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendant City of Los Angeles (including Los Angeles World Airports, a department within City of Los Angeles)

RESPONDING PARTY:       Plaintiff Danielle Debise

Motion to Disqualify Plaintiff’s Counsel

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

REQUEST FOR JUDICIAL NOTICE

The court grants Defendant’s request for judicial notice.  (Evid. Code, § 452, subd. (d).)

EVIDENTIARY OBJECTIONS

The court overrules Defendant’s objection to Plaintiff’s untimely opposition and exercises its discretion to consider the opposition filed by Plaintiff on December 28, 2022. 

At the January 6, 2023 hearing on this motion, pursuant to the request of Defendant, the court continued the hearing on the motion to February 24, 2023, and ordered that Defendant may file an amended reply in support of the motion no later than January 27, 2023.  Also at the January 6, 2023 hearing on this motion, pursuant to the stipulation of the parties, the court continued the trial scheduled for January 25, 2023 to June 7, 2023, in order to enable Defendant to file its amended reply and to enable the court to hold the continued hearing on the motion.

On January 27, 2023, Defendant filed an amended reply in support of this motion.  The court has considered Defendant’s amended reply.

LEGAL STANDARD

“A trial court’s authority to disqualify an attorney derives from the court’s inherent power 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.’”  (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 705; Code Civ. Proc., § 128, subd. (a)(5).)  “Ultimately, disqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.”  (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (“SpeeDee Oil”).)  “The paramount concern is the preservation of public trust in the scrupulous administration of justice and the integrity of the bar.”  (Jessen, supra, 111 Cal.App.4th at p. 705.)  “[A] disqualification motion may involve such considerations as a client’s right to chosen counsel, an attorney’s interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion.”  (SpeeDee Oil, supra, 20 Cal.4th at p. 1145.)  “[D]isqualification of counsel is necessary under certain circumstances, to protect the integrity of our judicial process by enforcing counsel’s duties of confidentiality and loyalty.”  (Sharp v. Next Entertainment Inc. (2008) 163 Cal.App.4th 410, 424.)

DISCUSSION

Defendant City of Los Angeles (“Defendant”) moves the court for an order disqualifying Shegerian & Associates, Inc. as counsel of record for plaintiff Danielle Debise (“Plaintiff”) in this action.  Defendant moves for disqualification on the ground that Shegerian & Associates, Inc. (“Plaintiff’s Counsel”) is now representing a City of Los Angeles attorney, Karen Majovski (“Majovski”), who formerly assisted in representing Defendant in this matter. 

Defendant presents evidence establishing that (1) the law firm of Vanderford & Ruiz (“Defendant’s Counsel”) represents Defendant; (2) Defendant’s Counsel “report[s] to and work[s] with Los Angeles City Attorneys,” including Majovski; (3) Defendant’s Counsel regularly communicated with Majovski between 2019 and 2022 “to make litigation and trial decisions in this case[;]” (4) Defendant’s Counsel verbally disclosed to Majovski privileged attorney-client information and sent Majovski privileged documents; (5) Majovski and Defendant’s Counsel “worked together on litigation and trial strategies” in this action; and (6) Majovski was actively involved in matters related to this action between 2019 and 2022, including from March 1, 2021 through 2022.  (Ruiz Decl., ¶¶ 2-4.)  Defendant contends that disqualification is warranted based on case law and policy considerations, the likelihood of a breach of confidence, and Plaintiff’s Counsel’s concurrent representation of Plaintiff and Majovski.

Plaintiff opposes the motion, in part, on the grounds that Defendant delayed in filing this motion, and that disqualification would irreparably harm and prejudice Plaintiff.  Plaintiff contends that Defendant was first made aware of this representation when Plaintiff’s Counsel sent Defendant a government tort claim letter on behalf of Majovski, or, at the latest, in March of 2022.  (Gbewonyo Decl., ¶ 2.)  Plaintiff further argues that Defendant’s delay evidences a tactical device to delay trial in this action, which was scheduled to begin on January 25, 2023 at the time the motion was filed.

“California cases provide a disqualification motion can be waived if not timely filed.”  (City and County of San Francisco v. Cobra Solutions, Inc. (2014) 232 Cal.App.4th 468, 474.)

To operate as a waiver, the delay must be “extreme or unreasonable….”  (Liberty National Enterprise, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 845 (“Liberty”).)  “Factors relevant to the reasonableness of a delay include the ‘stage of litigation at which the disqualification motion is made’ and the complexity of the case.”  (Ontiveros v. Constable (2016) 245 Cal.App.4th 686, 701.)  If the nonmoving party “has made a prima facie showing of unreasonable delay causing prejudice, disqualification should not be ordered, and the burden shifts to the moving party to justify the delay.”  (Liberty, supra, 194 Cal.App.4th at p. 845.) 

First, the court finds that Plaintiff has made a prima facie showing of unreasonable delay.   (Liberty, supra, 194 Cal.App.4th at p. 845.) 

As an initial matter, the court notes that Plaintiff contends that Defendant was on notice of counsel’s representation of Majovski as early as March 2021, when Plaintiff’s Counsel sent Defendant the tort claim letter on Majovski’s behalf.  The court finds that Plaintiff has not presented evidence establishing that Defendant was able to appropriately recognize the potential conflict at the time Defendant received the tort claim letter.

However, the parties do not dispute that Defendant was aware of Plaintiff’s Counsel’s representation of Majovski no later than March 7, 2022.  (Mora Decl., ¶ 3.)  Lorena N. Mora, a Deputy City Attorney for the City of Los Angeles, Los Angeles World Airports, states that Majovski disclosed the conflict in this action on March 7, 2022.  (Ibid; Majovski Decl., ¶ 4 [“In or around early March 2022, I reminded my office (by email) that I was represented by” Plaintiff’s Counsel].)  Upon notification of this conflict, Defendant did not inform Defendant’s Counsel of this representation, or otherwise take steps to disqualify Plaintiff’s Counsel.  (Mora Decl., ¶ 5; Ruiz Decl., ¶ 5.)  Instead, “the City Attorney’s Office set up an ethical wall internally to prevent Ms. Majovski from working on the case at bar and continuing her representation of [Defendant].”  (Mora Decl., ¶ 5.)  

The evidence demonstrates that Defendant not only knew of this conflict by March 7, 2022, but also recognized its significance by taking steps to prevent any possible ethical breaches resulting from Majovski’s attorney-client relationship with Plaintiff’s Counsel (i.e., by creating an ethical wall and recusing Majovski from working on this action).  Despite this knowledge, Defendant did not inform its outside counsel of these facts and did not file the pending motion to disqualify Plaintiff’s Counsel until November 21, 2022 -- over eight months after learning of Plaintiff’s Counsel’s representation of Majovski. 

The court finds it particularly significant that the Defendant’s employees involved in responding to this conflict are legally sophisticated.  Majovski is a Deputy City Attorney working with the City of Los Angeles.  (Majovski Decl., ¶ 3.)  The City Attorney’s Office was notified of, and took steps to remedy, the conflict on its own.  (Mora Decl., ¶¶ 4-5.)  “Delay is significant not only from the perspective of prejudice to the nonmoving party, it is also an indication that the alleged breach of confidentiality was not seen as serious or substantial by the moving party.”  (Liberty, supra, 194 Cal.App.4th at p. 847.)  The court finds that the delay here can appropriately be considered an indication that the alleged breach of confidentiality was not seen as serious or substantial by Defendant, based on the actions of the attorneys in the City Attorney’s Office (1) creating an ethical wall to prevent Majovski from continuing her work on this action, and (2) choosing not to inform Defendant’s Counsel of the potential conflict.  The court further notes that this delay, on the part of Defendant, could be viewed “as a tactical device to delay” the trial, which, at the time the motion was filed, was set for January 25, 2023.[1]  (Ibid.)  

Second, the court finds that Plaintiff has met her burden of demonstrating extreme prejudice.  (Liberty, supra, 194 Cal.App.4th at p. 845.)  Plaintiff presents evidence establishing the complexity of this case, and the amount of work that has been required to litigate this action and to prepare it for trial.  (Gbewonyo Decl., ¶ 15.)  Plaintiff argues, and the court agrees, that Plaintiff would be severely prejudiced if she was required to secure new counsel to litigate this case, which Plaintiff’s Counsel “has taken over five years to competently develop.”  (Opp., p. 13:2-4.)

The court finds that Defendant has not met its burden of justifying its delay.  (Liberty, supra, 194 Cal.App.4th at p. 845 [if the opposing party meets its burden of showing unreasonable delay causing prejudice, “the burden shifts to the moving party to justify the delay”].) 

Defendant does not set forth facts or circumstances that would justify its delay in moving to disqualify Plaintiff’s Counsel.  Although Defendant has presented evidence establishing that its outside counsel was not informed of this conflict until October 14, 2022, Defendant has not presented any evidence or argument explaining why it chose not to inform Defendant’s Counsel of this conflict and move to disqualify Plaintiff’s Counsel within a reasonable time after discovering that Plaintiff’s Counsel was representing Majovski.  (Ruiz Decl., ¶ 6; Mora Decl., ¶¶ 3, 5.)  The court therefore finds that Defendant has not met its burden to justify its eight-month delay in bringing this motion.

Upon consideration of the evidence and the arguments presented by the parties, and the factors relevant to the reasonableness of the delay, the court finds that Defendant failed to bring this motion to disqualify in a timely manner and therefore waived its right to seek disqualification of Plaintiff’s Counsel.  (City and County of San Francisco, supra, 232 Cal.App.4th at p. 473.)

ORDER

The court denies defendant City of Los Angeles’s motion for disqualification of plaintiff’s counsel, Shegerian & Associates, Inc.

The court orders plaintiff Danielle Debise to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 24, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court