Judge Thomas D. Long, Case Number: 23STCV15503, Date: 2024-06-11 Tentative Ruling

On July 3, 2023, Plaintiff Ying Wang filed this action against Defendant DCH Torrance Imports Inc. dba DCH Toyota of Torrance. On April 15, 2024, Plaintiff filed a first amended complaint (“FAC”).

On May 2, 2024, Defendant filed a motion to disqualify The Law Offices of Gary R. Carlin as counsel for Plaintiff.

Plaintiff filed a surreply on June 7, 2024. Although this filing was not authorized, the Court will still consider it because Defendant submitted new evidence with its reply.

“‘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 (SpeeDee Oil).) “‘[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 contends that Plaintiff’s Counsel has misrepresented numerous conflicts of interest among concurrent clients and failed to explain all circumstances, material risks, and foreseeable adverse consequences of his simultaneous representation to each, in violation of Rule 1.7 of the California Rules of Professional Conduct. (See Motion at p. 1.)

Under Rule 1.7, a lawyer shall not, without written informed consent, represent a client if the representation is directly adverse to another client in the same or a separate matter, or if there is a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client. “‘Informed consent’ means a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.” (California Rules of Professional Conduct, rule 1.0.1(e).)

Defendant notes that Plaintiff’s Counsel has filed numerous other employment actions on behalf of other employees of Defendant, including one brought by Toufik Cherchar. (Motion at p. 1; Noel Decl. ¶ 3 & Ex. A; Morse Decl. ¶ 3.) In this action, Plaintiff alleges discrimination, retaliation, harassment by Defendant’s supervising managers. Cherchar was Plaintiff’s direct supervisor during her employment with Defendant, and he was the only General Sales Manager during the relevant time period. (Morse Decl. ¶¶ 5-6, 12; Gonzalez Decl. ¶ 3; see Morse Decl. ¶ 11.) Cherchar was also the supervisor who confronted Plaintiff about the Business Attire and Appearance Policy. (See Cocio Decl. ¶¶ 3-8; FAC ¶ 21.) Cherchar initiated or approved all three of Plaintiff’s performance write ups, the decision to move her to floor sales, and the decision to terminate her employment. (Morse Decl. ¶ 12; Gonzalez Decl. ¶¶ 4-6.)

Defendant therefore argues that Plaintiff and Cherchar are directly adverse to each other (even though Cherchar is not a defendant in this action), and Plaintiff’s Counsel cannot reasonably believe that they can provide competent and diligent representation to both Plaintiff and Cherchar. (Motion at pp. 9-11.) Defendant provides a specific example of deposing Cherchar and requiring his testimony at trial, at which time Plaintiff’s Counsel will presumably also defend Cherchar’s deposition and cross-examine him at trial. (Motion at pp. 12-12; Reply at p. 2.) Although Plaintiff’s Counsel believes that “[b]oth Toufik [Cherchar] and Wing Yang [sic] are victims here” and they will not need to cross-examine Cherchar (Welden Decl. ¶ 3), it is undisputed that Cherchar was the supervisor whose actions form the basis of Plaintiff’s claims. In order for Plaintiff to prevail, she will need to prove that Cherchar or another employee (on Defendant’s behalf) wrote her up due to unfairness and bias. (See FAC ¶¶ 18.) Plaintiff’s Counsel will be materially limited in advocating for this position while simultaneously representing an alleged bad actor. This also places Plaintiff’s Counsel in breach of his undivided duty of loyalty to Plaintiff. (See Flatt v. Superior Court (1994) 9 Cal.4th 275, 289 [“the duty of loyalty to the client forbids any act that would interfere with the dedication of an attorney’s ‘entire energies to [the] client’s interests’”].) “A client who learns that his or her lawyer is also representing a litigation adversary, even with respect to a matter wholly unrelated to the one for which counsel was retained, cannot long be expected to sustain the level of confidence and trust in counsel that is one of the foundations of the professional relationship.” (Id. at p. 285.)

In opposition, Plaintiff’s Counsel asserts that “Defendants are smearing Plaintiff’s lawyers” through this “frivolous motion,” and “Defendants are accusing other lawyers of ethical violations arguably without knowing what they are talking about.” (Opposition at p. 2.) “There never was any conflict but we sought the Waivers in a surfeit of caution.” (Welden Decl. ¶ 3.) Plaintiff’s Counsel obtained conflict waivers from both Plaintiff and Cherchar, and he would not have represented the clients without waivers. (Opposition at p. 2; Carlin Decl. ¶ 1.) “Ms. Ying readily agreed to sign a waiver regarding Toufik [Cherchar] and Toufik did the same for Ms. Ying after I and Mr. Welden explained the facts to both clients.” (Carlin Decl. ¶ 5.)

Plaintiff’s waiver was signed on December 10, 2023—five months after this action was filed. Cherchar’s waiver was signed on May 6, 2024—four days after Defendant filed this motion, and six months after Cherchar’s action was filed on November 2, 2023. (See Noel Decl. ¶ 3 & Ex. A.) This means that from at least November 2, 2023 (Cherchar’s complaint) through December 10, 2023 (Plaintiff’s waiver), Plaintiff’s Counsel represented both parties without Plaintiff’s informed consent. Plaintiff’s Counsel continued to represent both parties without Cherchar’s informed consent until May 6, 2024. It is demonstrably untrue that “[t]here never was any conflict” (Welden Decl. ¶ 3) and that Plaintiff’s Counsel “would never have represented Ying Wang and Toufik Cherchar without obtaining their Waivers” (Carlin Decl. ¶ 1).

Additionally, the Conflict of Interest Waivers are wholly inadequate to constitute written informed consent to the simultaneous representation. Each one-page waiver states that the client (Plaintiff or Cherchar) “agrees and acknowledges that to the extent there may be or actually is a conflict of interest” with the other client, they waive the conflict of interest. (Carlin Decl., Exs. A-B.) They acknowledge that the law firm did not pressure them to sign, and the conflict of interest waiver was made “knowingly, intentionally, deliberately, and with a full understanding of its affect [sic] and consequences.” There is no evidence that the clients indeed understood “the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct,” or that Plaintiff’s Counsel sufficiently explained those risks. (See California Rules of Professional Conduct, rule 1.0.1(e).) Plaintiff’s Counsel declares only that he “explained the facts to both clients.” (Carlin Decl. ¶ 5.)

Under these circumstances of simultaneous adverse representation and no evidence of actual informed consent, disqualification is necessary to maintain ethical standards of professional responsibility and to preserve the integrity of these proceedings. (See SpeeDee Oil, supra, 20 Cal.4th at p. 1145.)

The Motion to Disqualify Counsel is GRANTED. The Law Offices of Gary R. Carlin is disqualified from representing Plaintiff in this action.

Under Canon 3D, subdivision (2) of the California Code of Judicial Conduct, “Whenever a judge has personal knowledge, or concludes in a judicial decision, that a lawyer has committed misconduct or has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action, which may include reporting the violation to the appropriate authority.”

Accordingly, the Court sets an Order to Show Cause Re: Reporting to the State Bar on September 13, 2024 at 8:30 a.m. No later than five court days before the hearing, the parties may submit supplemental briefing, not to exceed five pages, on whether the Court should report this violation to the State Bar of California.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court