Judge Upinder S. Kalra, Case Number: 21STCV37652, Date: 2024-06-24 Tentative Ruling

RESPONDING PARTY(S): Defendants Los Coyotes Veterinary Practice, P.C. and Jinyeung Choi

1. An order disqualifying counsel for Defendant Los Coyotes Veterinary Practice, P.C.

On September 9, 2021, Plaintiff Seonah Jo (“Plaintiff”) filed a complaint against Defendant Jinyeung Choi (“Defendant.”) The complaint alleged four causes of action: (1) Breach of Contract, (2) Breach of Fiduciary Duty, (3) Unjust Enrichment, and (4) Declaratory Relief. The complaint alleges that the parties entered into an oral agreement to operate a business partnership regarding the operation of Los Coyotes Veterinary Practice, P.C., agreeing to work equal time during the week, which was later reduced due to the Covid-19 pandemic. Plaintiff argues that Defendant refused to work the agreed upon hours per week. After an appraisal determined gthe value of Los Coyotes, the parties provided various offers to buy out the other party, but the parties have reached a deadlock. Plaintiff also alleges that Defendant received a third-party offer to merge Los Coyotes with the third party.

On November 1, 2021, Defendant filed a Demurrer with Motion to Strike which was OVERRULED.

On February 3, 2023, Plaintiff filed a Motion for Leave to Amend the Complaint, which was GRANTED.

On June 15, 2023, Plaintiff filed a Motion to Disqualify Counsel which the court GRANTED.

On April 17, 2024, Plaintiff filed the instant Motion to Disqualify Counsel. On June 10, 2024, each Defendant separately filed Oppositions. On June 13, 2024, Plaintiff filed Replies.

“A judge’s authority to disqualify an attorney has its origins in the inherent power of every court in the furtherance of justice to control the conduct of ministerial officers and other persons in pending judicial proceedings.”¿(Neal v. Health Net, Inc.¿(2002) 100 Cal.App.4th 831, 840;¿see also¿Code Civ. Proc., § 128, subd. (a)(5) [“Every court shall have the power to . . . 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”].) “The power is frequently exercised on a showing that disqualification is required under professional standards governing avoidance of conflicts of interest or potential adverse use of confidential information.”¿(Responsible Citizens v. Superior Court¿(1993) 16 Cal.App.4th 1717, 1723-1724.)

“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.) Generally, the disqualification of an attorney vicariously disqualifies his or her firm.¿(William H. Raley Co. v. Superior Court (1983)¿149 Cal.App.3d 1042, 1048–1049.)

Plaintiff moves to disqualify counsel for Defendant Los Coyotes Veterinary Practice. Specifically, Plaintiff asserts Attorney David Fraser’s (Fraser) impartiality is compromised due to a direct relationship with Defendant Choi, that Fraser and Defendant Choi are colluding against Plaintiff, and that he was previously disqualified as counsel in this matter. Defendant Los Coyotes argues that Plaintiff’s argument is conjecture not rooted in fact, misunderstands the role of corporate counsel, or otherwise attempts to mislead this court. Additionally, Defendant Los Coyotes argues that authority does not prohibit Fraser’s representation because he does not, and never did, represent Defendant Choi individually.[1] Defendant Choi’s opposition includes the same arguments and adds that Plaintiff waited 75-80 days to file this motion after Fraser’s January 24, 2024 appointment. Plaintiff replies that Fraser’s use of Dr. Hanna as a point of contact for Defendant Los Coyotes exceeds the scope of his appointment, that Fraser credited $8,963.93 before he was disqualified, and that Fraser’s former client was Defendant Choi because he was never officially retained by Defendant Los Coyotes.[2]

This court previously disqualified Fraser because he was purportedly retained to represent Defendant Los Coyotes in violation of corporate procedures. The board, with the vote of the provisional director appointed by this court, voted to retain Fraser at a Special Meeting. [Mot. 4:19-23.] Plaintiff voted against retaining Fraser. [Id.] The main argument is whether Defendant Choi, individually, has a conflict of interest with Fraser.[3]

Plaintiff proposes that Defendant Choi’s objection based on attorney-client privilege in her responses to Plaintiff’s Requests for Production (Set One) indicate such a relationship existed.[4] (Reply 5:21-6:5.) Plaintiff provides no other “evidence” of Defendant Choi’s attorney-client relationship with Fraser. Defendants argue that Fraser has always been corporate counsel because Defendant Choi retained Fraser, albeit improperly, for Defendant Los Coyotes while serving in her capacity as CEO.

Neither party included authority for this situation when an individual defendant includes a boilerplate discovery objection based on attorney-client privilege relating to their actions as a corporate officer. Put differently, is Defendant Choi’s discovery objection really evidence of a subjective belief that she, personally, was Fraser’s client? The court is not convinced.[5] There is no other proffered evidence of Fraser’s bias.[6] Indeed, there is no evidence that Fraser’s continued representation of Defendant Los Coyotes harms Plaintiff’s interests. (See City of San Diego v. Sup. Ct. (Hoover) (2018) 30 Cal.App.5th 457, 471-743 [finding that attorney disqualification not warranted where no “reasonable probability” or “genuine likelihood” the misconduct will provide unfair advantage or otherwise affect the outcome of the proceeding.]) Rather, granting the motion would harm Defendant Los Coyotes.

[1] Defendant Los Coyotes relies on Coldren v. Hart, King & Coldren, Inc. (2015) 239 Cal.App.4th 237.

[2] The court disregards Plaintiff’s reply to the extent it includes a stale discovery dispute. Plaintiff does not cite authority indicating that Fraser must return billed amounts to Defendant Los Coyotes.

[3] In passing, Plaintiff argues that Dr. Hanna exceeds his scope as the appointed third board member by continuing to discuss this matter with Fraser on Defendant Los Coyotes’ behalf. However, neither party fully briefed this issue. The court therefore declines to entertain it.

[4] Indeed, Plaintiff “infers” this relationship exists. (Reply 7:22-24.)

[5] Without weighing the merits of a discovery motion, the more appropriate question is whether Defendant Choi could properly assert the objection on behalf of Defendant Los Coyotes. Additionally, Plaintiff admittedly received unredacted copies of the requested documents after meet and conferring with Defendant Choi’s counsel. (Reply 6:6-19.)

[6] Plaintiff’s argument that Fraser is improperly loyal to Defendant Choi because she pays his bill is not well taken. Such reasoning would prohibit Defendant Los Coyotes from having counsel at all so long as Defendant Choi participates in her role as CEO to pay its bills. Plaintiff has implied that Dr. Hanna could not do so by arguing that his involvement stopped at the Special Meeting. So, contrary to Plaintiff’s assertions, it appears she is impeding Defendant Los Coyotes’ ability to defend itself in this lawsuit.