Judge: Upinder S. Kalra, Case: 21STCV29661, Date: 2022-10-03 Tentative Ruling
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Case Number: 21STCV29661 Hearing Date: October 3, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: October
3, 2022
CASE NAME: Sonny Benudiz v. William A. Soroky
CASE NO.: 21STCV29661
1. MOTION
FOR LEAVE TO FILE PROPOSED THIRD AMENDED COMPLAINT
2. MOTION
TO DISQUALIFY COUNSEL
MOVING PARTY: Plaintiff
RESPONDING PARTY(S): Defendant
TENTATIVE RULING:
Motion for Leave to File Proposed Third Amended Complaint is
DENIED.
Motion to Disqualify Counsel is DENIED.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
On August 11, 2021, Plaintiff filed
the Complaint, alleging breach of contract; general negligence; and breach of
fiduciary duty against Defendant Soroky.
On September 23, 2021, Plaintiff
filed his First Amended Complaint (FAC), alleging breach of contract;
professional negligence; and breach of fiduciary duty against Defendant Soroky.
Plaintiff also alleged malice, fraud, and oppression to support additional
damages against Defendant.
On December 8, 2021, Plaintiff filed
his Second Amended Complaint (SAC), alleging breach of contract; professional
negligence; and breach of fiduciary duty against Defendant Soroky. Plaintiff
also alleged malice, fraud, and oppression to support additional damages
against Defendant.
On March 28, 2022, Defendant filed for substitution of attorney.
On June 24, 2022, Plaintiff files the motion to disqualify counsel.
On June 29, 2022, Plaintiff filed the
motion for leave to file Third Amended Complaint (TAC).
LEGAL STANDARD
Code of Civil Procedure section 473, subdivision (a)(1)
provides in relevant part that the Court “…may, in furtherance of justice, and
on any terms as may be proper, allow a party to amend any pleading or
proceeding by adding or striking out the name of any party, or by correcting a
mistake in the name of a party, or a mistake in any other respect; and may,
upon like terms, enlarge the time for answer or demurrer. The court may
likewise, in its discretion, after notice to the adverse party, allow, upon any
terms as may be just, an amendment to any pleading or proceeding in other
particulars; and may upon like terms allow an answer to be made after the time
limited by this code.” “This discretion should be exercised liberally in favor
of amendments, for judicial policy favors resolution of all disputed matters in
the same lawsuit.” (Kittredge Sports Co.
v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)
Under California Rule of Court 3.1324, subdivision (a), a
motion to amend a pleading shall (1) include a copy of the proposed amendment
or amended pleading, which must be serially numbered to differentiate it from
previous pleadings or amendments; (2) state what allegations in the previous
pleading are proposed to be deleted, if any, and where, by page, paragraph and
line number, the deleted allegations are located; and (3) state what
allegations are proposed to be added to the previous pleading, if any, and
where, by page, paragraph, and line number, the additional allegations are
located.
Further, under California Rule of Court 3.1324, subdivision
(b), a separate declaration must accompany the motion and must specify (1) the
effect of the amendment; (2) why the amendment is necessary and proper; (3)
when the facts giving rise to the amended allegations were discovered; and (4)
the reasons why the request for amendment was not made earlier.
ANALYSIS:
Plaintiff
moves to add the party Ronald P. Slates (Slates), attorney for Defendant
William A. Soroky (Soroky) as a defendant. Defendant claims the motion should
be denied because (1) it fails to state what allegations are proposed to be
deleted and added and where, by page, paragraph, and line numbers said
allegations are located pursuant to CRC Rule 3.1324(a)(2)-(3); (2) the
supporting declaration that is relied upon fails to specify the effect of the
amendment, why it is necessary and proper, when the facts giving rise to the
amended allegations were discovered, and why the request for amendment was not
made earlier pursuant to CRC Rule 3.1324(b); and (3) the motion was
intentionally, maliciously, and erroneously filed to force Slates and the firm
to withdraw as Soroky’s counsel. (Oppo. p. 4.)
1. CRC
Rule 3.1324(a)
The Court
finds that Plaintiff substantially satisfies the CRC Rule 3.1324(a)
requirements because the motion demonstrates what allegations are proposed to
be deleted and added even though Plaintiff does not cite to specific page or
line numbers. The Court finds that Plaintiff is in substantial compliance and
made a good faith showing of its inability to comply since the complaint was
first filed as a Judicial Council Form complaint, later amended to a standard
pleading complaint. (Reply p. 4., Fischbach Decl., Exh. 1.) Plaintiff’s
attachment of a comparison copy of the SAC and Proposed TAC are sufficient.
(Exh. 1.) The Court finds that the failure to identify of the allegations that
are proposed to be deleted and added by page, paragraph, and line number is not
detrimental because Plaintiff essentially is only adding a new defendant
without changing the claims. Thus, Plaintiff’s procedural deficiency will not
bar his motion to amend.
2. CRC
Rule 3.1324(b)
Plaintiff
satisfies the requirement in CRC Rule 3.1324(b)(1) because the Fischbach
Declaration shows the primary effect of the amendment is to add Slates as a
defendant who also breached his fiduciary duties to Plaintiff. (Fischbach Decl.
¶ 4.)
Plaintiff
satisfies the requirement in CRC Rule 3.1324(b)(2) because the Fischbach
Declaration demonstrates why Plaintiff’s proposed amendments are necessary and
proper, contrary to what Defendant claims, since Slates should be added as a
defendant based on the alleged conspiracy between Slates and Soroky. (Fischbach
Decl. ¶ ¶ 4, 9.)
Plaintiff
satisfies the requirement in CRC Rule 3.1324(b)(3) because the Fischbach
Declaration shows when the facts giving rise to the amended allegations were
discovered. Defendant does not contest this, but only states that the
declaration fails to describe any of those alleged new facts. (Mot. p. 11.) The
Court finds that Plaintiff sufficiently alleged when discovery of new facts by
reading Slates’ Declaration, reviewing Soroky’s position regarding his
conspiracy, and the fact that there was no attorney-client relationship between
Slates and Sorosky at the time of violation. (Reply p. 5.); Fischbach Decl. ¶¶
4, 9.)
Plaintiff
satisfies the requirement in CRC Rule 3.1324(b)(4) because the Fischbach
Declaration demonstrates the reason why the request for amendment was not made
earlier by stating that the conspiracy and improper conduct engaged by Slates
and Soroky did not fully come to light until reading Slates’ Declaration that
was filed in Opposition to Plaintiff’s Ex-Parte Application to Disqualify.
(Fischbach Decl. ¶¶ 4, 9.)
Thus,
Plaintiff does not fail to comply with the requirements in CRC Rule 3.1324(b).
3. Timeliness
and Prejudice to Parties
Plaintiff seeks
to amend the Complaint on the grounds that it recently discovered evidence. This
claim is belied by the August 11, 2021 Complaint where Plaintiff alleges that
counsel for judgment creditor contacted Defendant to solicit the alleged unethical
conduct. It is clear that Plaintiff is referring to counsel for judgment
creditor in case BA206763, counsel Slates. Moreover, Plaintiff’s counsel contention
that he only discovered the significance of Slates involvement after reading Slates’ declaration
attached to the Defendant’s Opposition to Disqualify is unbelievable. In sum,
the facts were not recently discovered but were known from the inception of filing
this action. But even untimely amendments are allowed, absent prejudice.
Defendant
contends that Plaintiff’s motion is intended to prejudice Defendant and cause
severe and irreparable harm because Plaintiff already filed a motion to
disqualify Defendant’s lawyer, and this instant motion would be a “third bite
at the apple” to disqualify. (Mot. pp. 4-5.) Defendant claims Plaintiff’s
intention in his motion for leave to file a TAC is to harass, intimidate, and
for a purely improper purpose. (Mot. p. 15.) Defendant claims Soroky would
suffer severe and irreparable harm and prejudice if he was forced to defend his
interests in pro per. (Soroky Decl. ¶ 8(a)-(i).)
Plaintiff
claims he would be prejudiced if denied leave to amend because he would not be
able to fully litigate the issue on the merits without Slates, who allegedly
conspired with Soroky. Plaintiff argues his right to amend should not be
abrogated because of Soroky’s medical condition, which was never at issue in
amending this complaint nor relevant in Plaintiff’s additional allegations
against Slates. (Reply p. 6.)
The Court
finds overwhelming evidence of an improper purpose for filing the amendment as
evidenced by a series of email attached to counsel Slates’ declaration. It is clear
to this Court that Plaintiff’s motion
was brought to harass, intimidate, or for a purely improper purpose namely to remove
Slates as counsel for Defendant. Most
telling is that if Plaintiff actually believed that Sorky was part of this
conspiracy, why wasn’t he named in the original complaint or the first amended
complaint or the second amended complaint? Only when Slates was retained as
counsel did Plaintiff threaten to make such claims. The Court finds that
despite the policy in favor of liberally allowing leave to amend, Plaintiff’s
apparent improper purpose will result in prejudice to Defendant. The Court will not tolerate, condone, or
approve of such mischief. As such, the
Court denies the proposed amended TAC.
4. Motion
to Disqualify Counsel.
“Motions to disqualify counsel present competing policy
considerations. On the one hand, a court must not hesitate to¿disqualify an
attorney when it is satisfactorily established that he or she wrongfully
acquired an unfair advantage that undermines the integrity of the judicial
process and will have a¿continuing effect on the proceedings before the court.
[Citations.] On the other hand, it must be kept in mind that disqualification
usually imposes a substantial hardship on the disqualified attorney’s innocent
client, who must bear the monetary and other costs of finding a replacement. A
client deprived of the attorney of his [or her] choice suffers a particularly
heavy penalty where ... his [or her] attorney is highly skilled in the relevant
area of the law.”¿(Gregori v. Bank of
America (1989) 207 Cal.App.3d 291, 300.) “The 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.”¿(People ex rel. Dept.
of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135,
1145.)
Violation of RPC
Plaintiff
claims Slates violated the Rules of Professional Conduct by calling his
adversary to solicit assistance in attacking his former client.
Defendant
claims that Soroky had a duty as an officer of the Court to make certain that
false and/or perjured information did not mislead the Court, so he cooperated
with Slates in the conduct on that litigation by providing his declaration.
Conflict of Interest
Plaintiff
claims that there is an actual conflict of interest because Slates is a direct
actor, and not just a percipient witness. (Reply p. 4.) Plaintiff argues the
conflict is unwaivable and there is no point to an informed consent. (Mot. p.
9.)
Defendant
claims that Slates obtained informed written consent by his client, and that
Plaintiff sets forth no factual basis for why the conflict is unwaivable and
why there is no point in obtaining informed consent. (Oppo. p. 10.)
Integrity of the Judicial Process
Plaintiff claims
that disqualification is also appropriate on the grounds that there will be
detriment to the opponent or injury to the integrity of the judicial process.
(Mot. p. 10.) Plaintiff claims there will be injury to the integrity of the
judicial process because there is a high likelihood that Slates will be called
as a witness. (Mot. p. 9.)
Defendant
claims that Plaintiff has failed to provide any admissible evidence of
“convincing demonstration of detriment” to him nor “injury to the integrity of
the judicial process” to justify his request that the Firm be disqualified.
(Oppo. p. 11.)
This Court does not find sufficient grounds for
interfering with a Defendant’s right to have counsel of his choice. The purpose
of disqualification is to protect the integrity of the judicial process and not
to give an adversary a tactical advantage. It is abundantly clear why Plaintiff
is pursuing this motion. The Court refuses to sully the integrity of the fair
administration of justice and join Plaintiff’s nefarious plan.
Conclusion
For the foregoing reasons, the
Court decides the pending motion as follows:
Motion for Leave to File Proposed
Third Amended Complaint is DENIED.
Motion to Disqualify Defense
Counsel is DENIED.
Moving party to give notice.
IT IS SO ORDERED.
Dated: October 3, 2022 ___________________________________
Upinder
S. Kalra
Judge
of the Superior Court