Judge: Salvatore Sirna, Case: 24PSCV00541, Date: 2025-05-19 Tentative Ruling
The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.
Case Number: 24PSCV00541 Hearing Date: May 19, 2025 Dept: G
Defendant American Honda Motor Co., Inc.’s Motion for Order to Disqualify Plaintiff’s Counsel
Respondent: Plaintiff Yukiye Mayorga
TENTATIVE RULING
American Honda’s motion for order to disqualify counsel is DENIED.
BACKGROUND
This is a Song-Beverly action. On February 22, 2024, Plaintiff Yukiye Mayorga (Mayorga) filed a complaint against Defendants American Honda Motor Co., Inc. (American Honda), Cappo Management XLI, LLC dba Ocean Honda of Whittier, and Does 1 through 10, alleging the following causes of action: (1) Violation of the Song-Beverly Consumer Warranty Act Breach of Express Warranty, (2) Violation of the Song-Beverly Consumer Warranty Act Breach of Implied Warranty, (3) Violation of Business and Professions Code section 17200, and (4) Negligent Repair.
On March 20, 2025, American Honda filed the present motion for order to disqualify Mayorga’s counsel.
On May 9, 2025, Mayorga opposed.
On May 12, 2025, American Honda timely replied.
A hearing on this motion is set for May 19, 2024.
ANALYSIS
American Honda moves the court to disqualify Mayorga’s counsel on the grounds that Ryan K. Marden, Esq. (Mr. Marden) and MFS Legal Inc.’s representation of Mayorga violates California Rules of Professional Conduct, Rules 1.7, 1.9, and 1.10. (Mtn. Disqualify, p. 6:3-6.) For the following reasons, the court DENIES the motion.
Procedural Issues
The Court notes that Mayorga filed and served her opposition late, which American Honda also maintains in its reply. (Reply, p. 2:2-12.) The deadline for opposition was May 6, 2025, but Mayorga filed and served her opposition three (3) days late on May 9, 2025. (See Code Civ. Proc., § 1005(b).)
Since American Honda was able to respond to the issues raised in Mayorga’s opposition, the court finds there is no prejudice to American Honda that would warrant rejecting the opposition. (See Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) The court advises Plaintiff that untimely filings are disfavored. Future filings that fail to adhere to Code Civ. Proc., § 1005 may result in a decision by the court to disregard the late-filed and served papers. (See Jack v. Ring LLC (2023) 91 CA5th 1186, 1210; see also Hobson v. Raychem Corp. (1999) 73 CA4th 614, 623 (dictum) (disapproved on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 C4th 1019).)
Legal Standard
“The trial court is vested with the power ‘[t]o control in furtherance of justice, the conduct of its ministerial officers.’ That power includes the disqualifying of an attorney.” (Henricksen v. Great Am. Sav. & Loan¿(1992) 11 Cal.App.4th 109, 113; Code Civ. Proc. § 128(a)(5).) “Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. [Citations.] In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. [Citation.]” (Henricksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th 109, 113.)
California Rules of Professional Conduct, Rule 1.7 provides, in relevant part, that a lawyer cannot “represent a client if the representation is directly adverse to another client in the same or a separate matter” unless the lawyer has informed written consent from each client and reasonably believes they “will be able to provide competent and diligent representation to each affected client,” “the representation is not prohibited by law,” and “representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation.”
California Rules of Professional Conduct, Rule 1.9 provides, in relevant part, the following:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed written consent.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Business and Professions Code section 6068(e) and rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed written consent.
(1) use information protected by Business and Professions Code section 6068(e) and rule 1.6 acquired by virtue of the representation of the former client to the disadvantage of the former client …; or
(2) reveal information protected by Business and Professions Code section 6068(e) and rule 1.6 acquired by virtue of the representation of the former client . . . .
(c) A lawyer who has formerly represented a client in a matter … shall not thereafter:
(1)
California Rules of Professional Conduct, Rule 1.10 provides, in relevant part, that lawyers in the same firm cannot “knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9,” unless the prohibition “arises out of the prohibited lawyer’s association with a prior firm” and the following three apply:
(i) “the prohibited lawyer did not substantially participate in the same or a substantially related matter,”
(ii) “the prohibited lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom,” and
(iii) “written notice is promptly given to any affected former client to enable the former client to ascertain compliance…”
“[W]here the attorney had a direct relationship with the former client, the substantial relationship test requires that “the evidence before the trial court support[ ] a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues. [Citations.]” (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 713.)
Discussion
American Honda maintains that Mr. Marden had not obtained American Honda’s informed consent prior to representing Mayorga in the present case, in violation of California Rules of Professional Conduct, Rules 1.7 and 1.9. (Mtn. Disqualify, p. 6:3-6.) American Honda maintains that Mr. Marden’s representation of Mayorga in the present case is adverse to American Honda because Mr. Marden was employed as a partner at Lewis Brisbois Bisgaard & Smith, LLP (“Lewis Brisbois”) from April 2022 to March 2023, during which he represented American Honda in a Song-Beverly action. (Mtn. Disqualify, pp. 2: 16-21, 3:13-17; Kizirian Decl. ¶ 2.) The prior action, Mobayen v. American Honda Motor Co., Inc., 19STCV33467 (Mobayen), was transferred to Lewis Brisbois when the case became an individual arbitration. (Mtn. Disqualify, p. 3:6-9; Kizirian Decl. ¶ 4.) American Honda maintains that Mr. Marden led the defense, interacting with American Honda’s counsel and in-house counsel and providing advice on “case handling and resolution … in line with Honda’s strategies and case objectives” until he left Lewis Brisbois in March 2023. (Mtn. Disqualify, p. 3:13-17; Kizirian Decl. ¶ 5.)
American Honda filed a prior Motion to Disqualify Mr. Marden in May 2024, to which Mr. Marden substituted out for MFS Legal, Inc. (Mtn. Disqualify, p. 3:21-24; Hernandez Mtn. Decl. ¶ 2, Exh. A; Fisher Decl. ¶ 3.) American Honda notes that despite substituting out, Mayorga’s January 9, 2025 responses to American Honda’s written discovery requests contain Mr. Marden’s information in the caption and his electronic signature. (Mtn. Disqualify, p. 4:1-5; Hernandez Mtn. Decl. ¶ 3, Exh. B.) American Honda also notes the proofs of service for the discovery responses are signed by a paralegal from MFS Legal, Inc. (Mtn. Disqualify, p. 4:22-24; Hernandez Mtn. Decl. ¶ 5, Exhs. C, D, E; Fisher Decl. ¶ 6, Exh. 2.) However, Mayorga opposes, maintaining that MFS Legal, Inc. inadvertently failed to change Mr. Marden’s caption when responding to American Honda’s discovery requests. (Opp., p. 2:15-16; Fisher Decl., Exh 2.)
American Honda maintains its counsel was informed in March 2025 that Mr. Marden oversees operations at MFS Legal, Inc. and that he is still involved in the present case. (Mtn. Disqualify, p. 4:25-26; Hernandez Mtn. Decl. ¶ 6.) In opposition, Moyarga asserts this issue is moot because Mr. Marden is no longer Mayorga’s counsel of record and is not involved in prosecuting the instant case. (Opp., p. 2:16-18; Fisher Decl. ¶ 4, Exh. 1.)
In support of this position, Mr. Marden declares he was not involved in preparing or reviewing the discovery responses and was unaware the caption he created during his representation of Mayorga was still being used for the responses. (Fisher Decl., Exh. 1.) American Honda replies this issue is not moot given that Natalee Fisher at MFS Legal, Inc. informed American Honda’s counsel that “she does not know whether Mr. Marden oversees the operations of MFS Legal and to what extent he is involved in cases litigated by MFS Legal” and that “she would assume Mr. Marden has access to case materials at MFS Legal but could not be certain.” (Reply, p. 2:24-28, Hernandez Reply Decl. ¶ 4.) The court finds this statement does not indicates Mr. Marden remains involved in the instant case, despite what American Honda appears to glean from Fisher’s statements.
American Honda maintains disqualification is appropriate because Mr. Marden’s prior representation of American Honda in Mobayen is not incidental or minimally related to the legal issues in the present case, considering the area of law is “effectively identical” and “implicates a substantial relationship between the former and current representation.” (Mtn. Disqualify, p. 6:7-10.) American Honda additionally maintains that Mr. Marden was previously “privy to Honda’s procedures, strategies, and case objectives with respect to its litigation and/or resolution of [Lemon Law] claims.” (Mtn. Disqualify, p. 6:11-13.)
Mayorga, however, maintains the instant motion fails to meet the burden required by Khani v. Ford (2013) 215 Cal.App.4th 916 (Khani) of making a showing that Mr. Marden received confidential information material to the instant case. (Opp., p. 3:13-16.) The Second District Court of Appeal in Khani found that just because the cases arise under the same statute does not indicate a substantial relationship such that the attorney should be disqualified. (Khani v. Ford, supra, 215 Cal.App.4th at 922.) Additionally, the Court of Appeal concluded the attorney’s “exposure to playbook information in prior lemon law cases” was insufficient to disqualify him “without any showing of its materiality.” (Ibid.)
Here, American Honda noted Mr. Marden was involved in the arbitration of one case, Mobayen, which resolved after Mr. Marden’s departure from Lewis Brisbois. American Honda mentioned Mr. Marden’s access to “Honda’s procedures, strategies, and case objectives” and stated both the prior and instant cases pertain to “the same claims of jerking and juddering (transmission).” (Mtn. Disqualify, p. 6:11-13; Reply, p. 2:15-20.) The court does not find these generalized statements are sufficient evidence of the materiality of confidential information from Mobayen as it pertains to the present case. American Honda also tries to distinguish Khani based on the number of years between when the attorney in Khani litigated against Ford Motor Company (four years) and when Mr. Marden initiated Mayorga’s action (less than two years). (Reply, p. 2:15-17.) American Honda briefly argues the instant case “is more akin to the six-month period that the appellate court found sufficient to warrant disqualification in Farris v. Fireman's Fund Ins. Co. (2004) 119 Cal.App.4th 671” (Farris). Yet, American Honda misstates the holding in Farris; the Court of Appeal briefly mentions the six-month period, but concludes disqualification is warranted due to evidence showing access to confidential information and evidence that the successive representations were substantially related. (Farris v. Fireman's Fund Ins. Co., supra, 119 Cal.App.4th at 682, 687.)
Here, the court finds American Honda has not satisfied its burden of demonstrating a substantial relationship. In other words, there is no rational conclusion that “information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.” (See Jessen v. Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at 713.) Apart from briefly claiming this “motion is further based upon California Rules of Professional Conduct, Rule 1.10 which generally imputes the conflict of an individual lawyer to the law firm in which he or she is associated,” American Honda does not further argue this point in the motion or in its reply. (Notice of Mtn. Disqualify, p. 2:7-9.)
In opposition, Mayorga asserts Mr. Marden’s participation in Mobayen was not substantial, in compliance with California Rules of Professional Conduct, Rule 1.10, subdivision (a)(2), indicated by the following: Mr. Marden appeared to merely keep in-house counsel informed about the status of arbitration, case handling, and resolution; Mr. Marden worked at Lewis Brisbois for only eleven (11) months; and Mr. Marden did not learn confidential information during the arbitration of Mobayen. (Opp., pp. 7:4-16, 7:17-19, 8:1-9; see CA Rules of Professional Conduct, Rule 1.10(a)(2)(i), com. 1.) The court notes that Mayorga only argues compliance with subdivision (a)(2)(i) but does not address subdivision (a)(2)(ii) or (iii) which require, in relevant part, that the prohibited lawyer is timely screened and written notice is promptly given to any affected former client to ascertain compliance. American Honda does not address this in reply. Nevertheless, these points do not change the court’s analysis and conclusions set forth thus far.
Mayorga also maintains that her interest in keeping her counsel of choice should prevail due to the substantial financial burden on Mayorga if forced to find new counsel, the inevitable delay in litigation, and Mayorga’s choice of MFS Legal, Inc. over the many Song-Beverly attorneys in Southern California. (Opp., p. 9:1-12.) Mayorga additionally maintains that American Honda’s motion to disqualify was filed for the purpose of tactical abuse. (Opp., p. 9:26-28.) American Honda restates that Mr. Marden defended American Honda in Mobayen and initiated Mayorga’s action less than two years later, and that the two cases involve similar vehicle defect claims, albeit in different car models. (Reply, pp. 3:18-28, 4:1-11.) Yet, as stated above, the court finds no substantial relationship between Mobayen and the instant case, and the issue is moot since Mr. Marden is no longer counsel of record or involved in the instant case.
Accordingly, the court DENIES American Honda’s motion for order to disqualify Mr. Marden and MFS Legal, Inc. as Mayorga’s counsel.
CONCLUSION
Based on the foregoing, American Honda’s motion for order to disqualify counsel is DENIED. Moving party is ordered to give notice.