Judge Thomas D. Long, Case 21STCV05643 2023-04-06 Tentative Ruling

On February 11, 2021, Plaintiff Alberto Salazar filed this action against Defendants Allenn Specialty Group Corp. and ValleyScapes, Inc. The parties later stipulated to allowing the Plaintiff’s action to continue through Maria Salazar, his successor-in-interest.

On March 9, 2023, ValleyScapes, Inc. (“Defendant”) filed a motion to disqualify Kaveh S. Elihu as counsel of record for Plaintiff.

The Final Status Conference is scheduled for April 17, 2023, and a jury trial is scheduled for May 1, 2023.

“‘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.”’” (Ontiveros v. Constable (2016) 245 Cal.App.4th 686, 694, quoting People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) “‘[D]isqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.’” (Id. at 694-695.) “When deciding a motion to disqualify counsel, ‘[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.’ [Citation.]” (O’Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1124.) The decision to grant or deny a motion to disqualify counsel is reviewed for abuse of discretion. (Id. at p. 1123.)

Defendant moves to disqualify Kaveh S. Elihu as Plaintiff’s counsel because he is a witness to when Plaintiff retained counsel and knew about his employment claims. (Motion at p. 6.) Defendant also moves to disqualify Elihu as Plaintiff’s counsel because he or other attorneys in his office communicated with Juan Gomez Davila, and they knew that Defendant’s counsel represented him. (Motion at p. 8.)

A. Plaintiff’s Counsel’s Possible Testimony Does Not Require Disqualification.

California Rules of Professional Conduct Rule 3.7 prohibits a lawyer from acting as an advocate in a trial where the lawyer is likely to be a witness, unless the testimony relates to an uncontested matter, the testimony relates to the nature and value of legal services in the case, or the lawyer obtained written, informed consent from the client.

“An attorney who attempts to be both advocate and witness impairs his credibility as witness and diminishes his effectiveness as advocate.” (Comden v. Superior Court (1978) 20 Cal.3d 906, 912.) “[W]here it becomes likely that an attorney will testify as a material witness, he should ‘“resolve any doubt in favor of preserving the integrity of his testimony and against his continued participation as trial counsel.’” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1211, quoting People v. Dunkle (2005) 36 Cal.4th 861, 915.) “[W]here 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.)

Defendant argues that Elihu is a witness to “when Plaintiff was first introduced to Mr. Elihu, the conversations that took place between the two, whether Plaintiff already knew about his employment claims during their introduction, whether Plaintiff actually signed the Retainer Contract, and the date which it was signed. Mr. Elihu is a witness to, at the very least, the signing of the Retainer Contract, if not a witness to their first conversation together.” (Motion at p. 6.) These facts are contested: Defendant previously moved for summary adjudication on the ground that Plaintiff’s claims were barred by his bankruptcy because he knew of his employment claims when he filed his bankruptcy petition. The Court found that there were triable issues of material fact and denied the motion on this ground. Elihu signed Plaintiff’s May 2019 attorney-client retainer contract, and he is the only remaining witness to that contract after Plaintiff’s death. His potential testimony could therefore be significant and dispositive of the issue of whether Plaintiff’s claims survived his bankruptcy discharge. (See Smith, Smith & Kring v. Superior Court (Oliver) (1997) 60 Cal.App.4th 573, 581.) However, the Court “should also consider whether it is the trial attorney or another member of his or her firm who will be the witness.” (Ibid.) Victor R. Ujkic and Delaney Miller of Employee Justice Legal Group are the attorneys responsible for trial preparation and will be conducting the trial. (Ujkic Decl. ¶ 10.) Elihu will not be involved in conducting the trial. (Ujkic Decl. ¶ 10.) Accordingly, the concerns about credibility and integrity of trial are not present here.

B. Plaintiff’s Counsel’s Contact With Juan Gomez Davila Does Not Require Disqualification.

California Rules of Professional Conduct Rule 4.2 prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows is represented by another lawyer.

Defendant argues that “it is unquestionable that Mr. Elihu and/or attorneys from his office held improper communications with a represented individual in Mr. Davila” and “[i]t is unquestionable that Mr. Davila possessed attorney-client privileged and/or work product information that would be incredibly prejudicial for ValleyScapes if it were to be learned by Plaintiff’s counsel.” (Motion at p. 8.) This issue is also the subject of Defendant’s Motion in Limine No. 1, which seeks to exclude Davila’s testimony. Defendant’s sole supporting evidence is the Declaration of Bryan Hawkins in Support of Motion in Limine No. 1. (See Motion at p. 4, fn. 1.)

Defendant’s counsel declares that on July 20, 2022, Plaintiff’s counsel asked about Davila’s availability for deposition. (Hawkins Decl. ¶ 3 & Ex. A; see Hawkins Decl. ¶¶ 2-5.) Plaintiff later served a Notice of Deposition on Defendant’s counsel, and Defendant’s counsel confirmed that they would produce Davila for deposition. (Hawkins Decl. ¶¶ 6-7 & Exs. A-B.) After Plaintiff’s death, the parties agreed to take Davila’s deposition off-calendar while the administration of the case was sorted. (Hawkins Decl. ¶ 9 & Ex. C.) On February 13, 2023, an attorney with Defendant’s counsel’s office spoke with Davila and had a detailed discussion regarding preparing for his upcoming deposition, along with overall strategy of the case and upcoming trial. (Hawkins Decl. ¶ 12.) Defendant’s counsel confirmed that they were still representing him in the lawsuit and would defend his deposition if and when it were scheduled. (Hawkins Decl. ¶ 13.) On March 2, 2023, Defendant’s counsel confirmed to Plaintiff’s counsel that they still represented Davila. (Hawkins Decl. ¶ 14 & Ex. E.) On March 4, 2023, Plaintiff filed an opposition to Defendant’s motion for summary adjudication, which included a declaration from Davila. (Hawkins Decl. ¶ 15 & Ex. F.)

Davila’s declaration sets forth his knowledge about Plaintiff’s shoulder injury, surgery, and need for time off. (Hawkins Decl., Ex. F.) It also states that Plaintiff gave him several doctor’s notes placing Plaintiff off work, which Davila would photograph and send to an office worker for Defendant. To Davila’s knowledge, Defendant did not hire anyone to replace Plaintiff until December 2019.

As the Court stated in its summary adjudication order, Defendant has not shown any improper effect from obtaining this declaration other than the fact of obtaining it. Whether Plaintiff obtained any privileged information is merely speculative and is not reflected in the contents of the declaration. “‘The court’s goal is not to impose a penalty, as the propriety of punishment for violation of the Rules of Professional Conduct is a matter within the purview of the State Bar, not of a court presiding over the affected case. [Citations.] Instead, what the court must do is focus on identifying an appropriate remedy for whatever improper effect the attorney’s misconduct may have had in the case before it.’ [Citation.]” (McMillan v. Shadow Ridge at Oak Park Homeowner’s Assn. (2008) 165 Cal.App.4th 960, 968.) Without any evidence of any improper effect caused by Plaintiff’s counsel obtaining the declaration from Davila, the Court will not disqualify Elihu.

Additionally, Victor R. Ujkic and Edward Ramirez (of Plaintiff’s counsel’s office) declares that they obtained Davila’s declaration after conducting due diligence in ensuring that he was not actually represented by Defendant’s counsel and had not signed any documents securing prior representation. (Ujkic Decl. ¶¶ 8-9; Ramirez Decl. ¶¶ 3-4.) Aside from Defendant’s counsel’s declaration stating that they told Plaintiff’s counsel that they represented Davila, counsel provides no other evidence that they did in fact represent Davila, a former employee. Without this evidence from Defendant, and when faced with Plaintiff’s contrary evidence that they conducted due diligence in ensuring that Davila was not actually represented, the Court cannot conclude that Davila was represented by Defendant’s counsel and that any violation actually occurred. (See Doe v. Superior Court (2019) 36 Cal.App.5th 199, 206-207.)

The Hearing on Motion to Disqualify Counsel of Plaintiff as to Defendant Valleyscapes, Inc. is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court