Judge: Robert C. Longstreth, Case: 37-2022-00049975-CU-BC-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 04, 2024

04/05/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00049975-CU-BC-CTL DEHBOZORGI VS SAN DIEGO REGIONAL CENTER [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Disqualify Attorney of Record, 08/17/2023

Defendant San Diego-Imperial Counties Developmental Services, Inc.'s Motion to Disqualify Attorney Melody Kramer from Representing Plaintiff (ROA 26) is DENIED.

Defendant contends Attorney Kramer must be disqualified from representing Plaintiff because she is a key witness in the case who is likely to testify at trial. The court is not persuaded.

'In exercising its discretion to disqualify counsel under the advocate-witness rule, a court must consider (1) ' ' 'whether counsel's testimony is, in fact, genuinely needed' ' '; (2) 'the possibility [opposing] counsel is using the motion to disqualify for purely tactical reasons'; and (3) the 'combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.'' (Doe v. Yim (2020) 55 Cal.App.5th 573, 583-84, quoting Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 580-81.) Defendant relies on the following facts to support its motion: Attorney Kramer was copied on some emails between the parties before the lawsuit was filed; Attorney Kramer 'confirmed' the terms of the parties' agreement in a letter to Defendant before the lawsuit was filed; and Attorney Kramer attended two meetings between the parties in which payment terms were discussed. Such facts are far from sufficient to show that Attorney Kramer's testimony at trial is genuinely needed in this case. In particular, Defendant has not demonstrated why Attorney Kramer's testimony would be needed to establish the terms of an agreement between the parties. As counsel for Plaintiff, she is entitled to advocate on behalf of her client as to her client's interpretation of the agreement. Attorney Kramer's communications with her client and her mental impressions regarding the agreement or any other aspect of the case are privileged, as are any notes she may have taken at meetings between the parties while she was representing Plaintiff prior to the filing of this lawsuit. (Code Civ. Proc. § 2018.030; Evid. Code § 954.) Significantly, although Defendant's motion is premised on the view that it is entitled to call Attorney Kramer as a witness over Plaintiff's objection, Defendant has not yet sought to compel her attendance at a deposition. 'Depositions of opposing counsel are presumptively improper, severely restricted, and require 'extremely' good cause – a high standard.' (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562, quoting Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1493.) Defendant has not even attempted to demonstrate to the Court by way of a motion to compel attendance at a properly noticed deposition that it has 'extremely' good cause to depose Attorney Kramer in this case.

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3041658  14 CASE NUMBER: CASE TITLE:  DEHBOZORGI VS SAN DIEGO REGIONAL CENTER [IMAGED]  37-2022-00049975-CU-BC-CTL Defendant also emphasizes the fact that 'attorney Kramer filed a verified complaint with her client.' (Memo. at 9:1-2, emphasis in original.) The court notes the verification was signed by Plaintiff Roshanak Dehbozorgi, not by Attorney Kramer. (Compl. at p. 14.) Defendant also asserts Attorney Kramer's 'dual role' is likely to mislead the trier of fact. Since Defendant failed to establish Attorney Kramer's testimony is genuinely needed in this case, there is no concern that a fact-finder might be misled.

As to the second factor, while the court is unable to conclude that the matter was filed solely for tactical reasons, there is at least the 'possibility' that tactical concerns have been a consideration in advancing the motion. '[A]s 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' because '[s]uch 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.' (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300-01.) Granting the motion is virtually certain to result in additional expense to the Plaintiff, and there is no showing that Plaintiff would be able to obtain equivalent legal representation regardless of the cost. Defendant's attempt to show that the timing of the motion was based solely on when it understood Attorney Kramer's role in the matter is far from a conclusive demonstration, especially given the correlation that Plaintiff has shown between the filing of the motion and other events in the litigation, and the fact that Attorney Kramer's contact with Defendant was, of course, within the knowledge of the Defendant before the case was filed.

As to the third factor, Plaintiff clearly has a strong interest in Attorney Kramer's continued representation.

Since Attorney Kramer was already representing Plaintiff before the lawsuit was filed, Attorney Kramer is already familiar with the underlying facts and a new attorney would necessarily have to duplicate time and effort. The case was filed more than a year ago now, numerous depositions have taken place, and trial is currently set for June 2024.

Plaintiff's Motion for Sanctions Against Defendant's Counsel (ROA 37) is also DENIED.

Plaintiff seeks sanctions in the amount of $9,538.40 against Defendant's counsel Susan Hack pursuant to Code of Civil Procedure section 128.7. Specifically, Plaintiff asserts Attorney Hack filed the motion to disqualify Attorney Kramer primarily for an improper purpose, with legal contentions that are not warranted by existing law of a nonfrivolous extension, modification, or reversal of law, and with factual contentions that lack evidentiary support. (Code Civ. Proc. § 128.7(b)(1), (2), and (3).) While the court has denied Defendant's motion and found its arguments unpersuasive, the court is not prepared to conclude the legal arguments were frivolous. While Plaintiff suggests the advocate-witness rule only applies where the lawyer seeks to both testify and serve as counsel, the rule can also be applied where the opposing party asserts the lawyer is likely to be a key witness. (See Yim, supra.) Similarly, Defendant's assertion that Attorney Kramer is a 'key witness' is not a false fact but a legal argument, albeit one that the court found unpersuasive. The court concludes there is not a sufficient basis to conclude Attorney Hack violated subsections (b)(2) and (b)(3) of the statute.

As noted above, the court also concludes there is not a sufficient basis to find Defendant's motion to disqualify was brought 'primarily for an improper purpose.' (Code Civ. Proc. § 128.7(b)(1).) This is a far different standard than the one applied to the merits of the motion, where only a possibility of an improper motive need be shown before the court considers that possibility as a factor it its decision. In addition, the court notes Plaintiff relies to a large extent on tactics beyond the motion to disqualify itself, which cannot form the basis of a sanctions order under section 128.7, as the statute is limited to 'presenting... a pleading, petition, written notice of motion, or other similar paper' to the court. (Code Civ. Proc. § 128.7(b).) Calendar No.: Event ID:  TENTATIVE RULINGS

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