Judge: Walter P. Schwarm, Case: 30-2018-01002061, Date: 2022-10-04 Tentative Ruling

Motion No. 1:

Cross-Complainant’s (Nili Alai) Motion to Disqualify Counsel Pursuant to Cal. Rules of Profess. Conduct Rule 5-210 (Motion), filed on 5-31-22 under ROA No. 1023, is GRANTED as set forth below.

Rules of Professional Conduct, rule 3.7 (Rule 3.7), states, “(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: [¶] (1) the lawyer's testimony relates to an uncontested issue or matter; [¶] (2) the lawyer's testimony relates to the nature and value of legal services rendered in the case; or [¶] (3) the lawyer has obtained informed written consent from the client. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed. [¶] (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.”  (Footnote 1 omitted.)  Comment No. 3 to Rule 3.7 states, “[3] Notwithstanding a client's informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or the opposing party from being prejudiced. [Citation.]”

The Motion seeks disqualification under Rule 3.7 “. . . because the jury trial demanded by all parties will absolutely require that Mr. Plummer impermissibly take on a dual role as a witness and advocate in the same proceeding, which will not only confuse the court and trier of fact, but will also result in prejudice to the moving party.” (Motion; 1:18-21.)  Cross-Defendants’ (Jocelyn B. Plummer, Law Offices of Mark B. Plummer, PC, and Mark B. Plummer) Opposition to Motion to Disqualify (Opposition), filed on 9-21-22 under ROA No. 1083, responds, “In the subject case, the only issues besides punitive damages are the fraudulent representations made by NILI ALAI and SIAMACK NABILI to induce LAW OFFICES OF MARK B. PLUMMER, PC and MARK B. PLUMMER to provide legal services and the value of the services provided. Clearly, MARK B. PLUMMER may testify to these matters as a witness and is absolutely entitled to represent himself personally and the Corporation. (Mr. PLUMMER may or may not decide to represent himself at trial, but regardless has a right to.)” (Opposition; 4:12-17 (Uppercase in Oppposition.).)  The Opposition also states, “Of course, JOCELYN B. PLUMMER has also given written permission for MARK PLUMMER to represent her and he has filed an answer on her behalf.” (Opposition; 5:1-2 (Uppercase in Opposition.).) The declaration of Mark B. Plummer states, “I have received informed written permission to represent both JOCELYN B. PLUMMER and LAW OFFICES OF MARK B. PLUMMER, PC.” (Opposition; 5:12-17 (Plummer Decl., ¶ 2; Uppercase in Declaration.)

Doe v. Yim (2020) 55 Cal.App.5th 573, 581 (Yim), states, “A trial court's authority to disqualify an attorney derives from its inherent power, codified at Code of Civil Procedure section 128, subdivision (a)(5), to control the conduct of its ministerial officers and of all other persons connected with its proceedings in furtherance of justice. [Citation.] Disqualification may be ordered as a prophylactic measure against a prospective ethical violation likely to have a substantial continuing effect on future proceedings. [Citations.]”   “Neither California's advocate-witness rule nor its official comments specify how an advocate-witness's dual role might mislead the trier of fact or prejudice the opposing party. However, this topic is addressed in an official comment to the rule's national counterpart, rule 3.7 of the ABA Model Rules of Professional Conduct, addressing why the opposing party or the tribunal may have ‘proper objection’ to the dual role: ‘A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.’ [Citation.]  California courts have agreed that one purpose of the advocate-witness rule is to prevent factfinder confusion regarding whether an advocate-witness's statement is to be considered proof or argument. [Citations.] They have identified another, related purpose of avoiding the risk of ‘the jurors’ tying [counsel's] persuasiveness as an advocate to his credibility as a witness . . . .’ (Younger, supra, at 196, 150 Cal.Rptr. 156; see also Donaldson, supra, at 928, 113 Cal.Rptr.2d 548 [“ ‘The very fact of a lawyer taking on both roles will affect the way in which a jury evaluates the lawyer's testimony, the lawyer's advocacy, and the fairness of the proceedings themselves’ ”]; Tuft et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2019) ¶ 8:378 [detriment to opposing party or judicial integrity ‘may be claimed where the attorney's testimony is on the key issue in the case on which there is conflicting testimony, and the attorney then proposes to argue to the jury why his or her testimony is more credible than the conflicting evidence’].)” (Id., at p. 582; Footnote 3 omitted; Italics in Yim.) “The advocate-witness rule does not expressly address pretrial representation. [Citation.]  Nevertheless, to effectuate the rule's purpose of avoiding factfinder confusion, we interpret the rule's use of the term ‘trial’ to encompass a pretrial evidentiary hearing at which counsel is likely to testify. [Citation.] Further, though the parties cite no California authority on point, and we have found none, ‘most courts recognize that an attorney who intends to testify at trial may not participate in “any pretrial activities which carry the risk of revealing the attorney's dual role to the jury.” [Citation.] In particular, a testifying attorney should not take or defend depositions.’ (Waite, Schneider, Bayless & Chesley Co., L.P.A. v. Davis (S.D. Ohio 2015) 253 F.Supp.3d 997, 1018-1019; see also, e.g., LaFond Family Trust v. Allstate Prop. & Cas. Ins. Co. (D.Colo. Aug. 8, 2019, No. 19-cv-00767-KLM), 2019 WL 3734459, at *4–*7, 2019 U.S.Dist.LEXIS 133523 at *13-*18 [granting motion to disqualify counsel from taking or defending depositions ‘in furtherance of Rule 3.7’s purpose,’ and rejecting asserted need for ‘separate factual inquiry’ into likelihood of revelation at trial of dual role]; Lowe v. Experian (D. Kan. 2004) 328 F.Supp.2d 1122, 1127 (Lowe) [applying advocate-witness rule to disqualify counsel from participating in evidentiary hearings and in taking or defending depositions; ‘Depositions are routinely used at trial for impeachment purposes and to present testimony in lieu of live testimony when the witness is unavailable. Testimony from an oral deposition could not be easily read into evidence without revealing [counsel's] identity as the attorney taking or defending the deposition. Videotaped depositions present an even greater concern’ (fn. omitted) ].)” (Id., at p. 583.)  “In exercising its discretion to disqualify counsel under the advocate-witness rule, a court must consider: (1) ‘ “ ‘whether counsel's testimony is, in fact, genuinely needed]’ ” ’ ; (2) ‘the possibility [opposing] counsel is using the motion to disqualify for purely tactical reasons’; and (3) ‘the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.’ [Citation.] ‘[T]rial judges must indicate on the record they have considered the appropriate factors and make specific findings of fact when weighing the conflicting interests involved in recusal motions.’ [Citation.] The court's exercise of discretion must be affirmed on appeal if there is any fairly debatable justification for it under the law. [Citation.]” (Id., at pp. 583-584.) (See also, Lopez v. Lopez (2022) 81 Cal.App.5th 412, 423-424.)

As to whether Mr. Plummer’s testimony is necessary at trial, the court finds that Mr. Plummer’s testimony is necessary at trial.  The Opposition concedes that Mr. Plummer will have to testify as to the alleged misrepresentations made by Cross-Defendant and Cross-Defendant—Siamack Niabili.  Mr. Plummer’s testimony at trial is necessary to resolve the central issues raised by the Complaint (filed on 6-27-18 under ROA No. 2) which include the alleged misrepresentations that induced Mr. Plummer to provide services for Cross-Defendants. (Complaint, ¶¶ 18-23.)  It is unlikely that Mr. Plummer’s testimony will be limited to the nature and value of the legal services provided because the Complaint seeks damages and punitive damages for fraud. (Complaint, ¶¶ 18-23.)  Also, Mr. Plummer’s testimony is necessary for Cross-Defendants to defendant against the Cross-Complaint (filed on 11-14-18 under ROA No. 161.)  For example, the Cross-Complaint pleads causes of action for breach of contract and breach of fiduciary duty that will require Mr. Plummer’s testimony on issues as to the terms of any contract between the parties and whether Mr. Plummer allegedly breached his fiduciary duties to Cross-Complainants. (Cross-Complaint, ¶¶ 20-73.)  Mr. Plummer’s testimony also appears necessary regarding Cross-Defendant—Jocelyn Plummer’s relationship to Cross-Defendant—Law Offices of Mark B. Plummer PC. (Cross-Complaint, ¶ 11.)

As to the second factor, the court finds that Cross-Complainant has not brought this Motion for purely tactical reasons.  The trial in this action is set on 6-23-23. (6-28-22 Minute Order.) Cross-Defendants—Law Offices of Mark B. Plummer, PC and Jocelyn Plummer will have sufficient time to retain new counsel to before the trial date.  Although Cross-Complainant could have filed this Motion earlier, Cross-Complainant filed this Motion less approximately 7 days after Cross-Defendant—Jocelyn Plummer filed an Answer to the Cross-Complaint (Answer filed on 5-24-22 under ROA No. 1018).

As to the third factor, the court assumes Cross-Defendants—Law Offices of Mark B. Plummer, PC and Jocelyn Plummer have a strong interest in continued representation by the counsel of their choice and will likely incur additional expense in retaining counsel for trial. The court’s order, however, will minimize this burden and expense by allowing Mr. Plummer to continue his representation of the parties up until trial except for depositions.  Further, the court finds that the prejudice to the Cross-Defendants—Law Offices of Mark B. Plummer, PC and Jocelyn Plummer is outweighed by the risk of potential prejudice to Cross-Complainant and a jury if Mr. Plummer is allowed to continue his representation through trial. Mr. Plummer appears to be the key witness for Plaintiff and Cross-Defendants and it would be difficult for a jury to determine whether his statements at trial are to proof or argument. Mr. Plummer’s role as an advocate is also likely to influence the manner in which the jury evaluates his testimony. For example, Mr. Plummer will likely argue that his own testimony is more credible than that of Defendants/Cross-Complainants.

Therefore, the court GRANTS Cross-Complainant’s (Nili Alai) Motion to Disqualify Counsel Pursuant to Cal. Rules of Profess. Conduct Rule 5-210 filed on 5-31-22 under ROA No. 1023.   The court DISQUALIFIES Mr. Plummer for purposes of representing Plaintiffs/Cross-Defendants (Law Offices of Mark B. Plummer, PC and Jocelyn Plummer) at trial and at depositions.  Since the Motion does not seek to disqualify Mr. Plummer from representing himself, the court’s decision does not apply to Mr. Plummer’s self-representation in his capacity as an individual. (Baba v. Board of Supervisors (2004) 124 Cal.App.4th 504, 523.)

Cross-Complainant is to give notice.

Motion No. 2:

Defendant’s (Sam Nabili) Motion for Discovery Protective Orders (Motion), filed on 5-31-22 under ROA No. 1027, is DENIED.

The Motion states, “Nabili therefore respectfully moves this Court for a discovery protective order that his further deposition not be taken by Plaintiff Plummer, and hereby requests an award of monetary sanctions.” (Motion; 1:17-19.) The Motion seeks a protective order pursuant to Code of Civil Procedure section 2025.420, subdivision (b)(2)(4)(5) and (6). (Motion; 3:14-21.)  Code of Civil Procedure section 2025.420 states in part, “(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . . . [¶]

(2) That the deposition be taken at a different time. . . . [¶] (4) That the deposition be taken at a place other than that specified in the deposition notice, if it is within a distance permitted by Sections 2025.250 and 2025.260. [¶] (5) That the deposition be taken only on certain specified terms and conditions. [¶] (6) That the deponent's testimony be taken by written, instead of oral, examination. . . .”

The declaration in support of the Motion states, “On October 25, 2018 I voluntarily appeared for my noticed deposition by Plaintiff pro per Mark Plummer in his detached home garage located at 18552 Oriente Drive in Yorba Linda, California. [¶] I was deposed from 10 am to 3:00 pm by Plummer in his garage without any meal break. [¶] Plummer was at times very belligerent, loud. and physically posturing in a threatening stance, and made me apprehensive of a harmful and offensive and verbally abusive and yelling at me during the discovery proceeding. [¶] I at times felt reasonably physically threatened by Plaintiff Plummer and was concerned several times that he was postured to physically batter me from his position at the table. [¶] Plummer was verbally aggressive toward me and my counsel, and he continuously acted in an uncivilized manner on this day.” (Nabili Decl., ¶¶ 2, 3, 4, 5, and 6.)

Plaintiff’s (Law Offices of Mark B. Plummer, PC) Opposition to Motion for Protective Order (Opposition), filed on 9-21-22 under ROA No. 1081, states, “After months of attempting to schedule the deposition of SIAMACK NABILI, he finally showed up for his deposition on October 25, 2018.  However he walked out of his deposition before it was concluded and has refused to complete it, thereby necessitating the 04/09/19 Motion to Compel.” (Opposition; 4:4-7 (Emphasis and italics in Opposition.).)

On 8-12-21, the court issued the following ruling on Plaintiff’s Motion to Compel Attendance at Deposition: “The Motion states, “This motion will be made on the grounds that Cross-Complainants [sic], SIAMACK NABILI, walked out of his deposition before it was completed on October 25, 2018 and has refused to resume the deposition, despite Mr. Satalino sting [sic] that he would.” (Motion; 2:4-6.) Plaintiff brings this Motion pursuant to Code of Civil Procedure section 2025.450. (Motion; 5:18-25.) It appears that the statutory authority for this Motion is Code of Civil Procedure section 2025.480 because Defendant appeared at the deposition and proceeded with it. [¶] Defendant’s (Siamack Nabili) Opposition to Plaintiff Motion to Compel Completion of Deposition to Defendant Siamack Nabili (Opposition) states, “Further, with no trial date yet set, and the bulk of the questioning by Plaintiff completed, there was no rush or urgency to immediately bring the present motion as the parties would have eventually agreed to complete the deposition, which has been virtually completed.” (Opposition; 4:24-28.) [¶]  Since Defendant agrees to complete the deposition, the parties are to meet and confer before the hearing on 8-12-21 and select a date, time, and place to resume Defendant’s deposition. Therefore, the court GRANTS Plaintiff’s (Law Office of Mark B. Plummer) to Compel Attendance at Deposition filed on 1-3-19 under ROA No. 201. Defendant’s continued deposition will occur no later than September 12, 2021. The court DENIES both parties request for a monetary sanction it does not appear that there was substantial justification for bringing or opposing the Motion.” (8-12-21 Minute Order; (Emphasis in Minute Order.)

First, the court finds that Defendant did not filed this Motion promptly as required by Code of Civil Procedure section 2025.420, subdivision (a).  Plaintiff filed this Motion on 5-31-22 even though the deposition occurred on 10-25-18.  Although the litigation was stayed from 12-18-18 to 11-12-20 due to Plaintiff filing a motion pursuant to Code of Civil Procedure section 425.16 and the resulting appeal (ROA Nos. 194 and 707) and from 9-24-21 to 3-8-22 due to a pending vexatious litigant motion (ROA Nos. 969 and 990), Defendant does not explain why Defendant failed to file this Motion earlier after Defendant’s initial deposition on 10-25-21.

Second, since the court has already granted Plaintiff’s motion to compel Defendant’s further deposition (8-12-21 Minute Order), this Motion appears to be an improper motion for reconsideration under Code of Civil Procedure section 1008. (Code Civ. Proc., § 1008, subd. (a).)  Defendant did not timely file this Motion as required by Code of Civil Procedure section 1008, subdivision (a), and has not demonstrated any new or different facts, circumstances or law to support reconsideration of the court’s 8-12-21 Minute Order. (Code Civ. Proc., § 1008, subd. (a).)

The court, however, finds that Mr. Plummer’s conduct at Defendant’s deposition did not comply with the Orange County Bar Association’s Civility Guidelines (civility_guidelines.pdf (ocbar.org).  These guidelines state in part, “Behave professionally at depositions. Avoid abusive or rude behavior, mischaracterizations of anyone’s conduct, baseless instructions not to answer, and questions asked only to embarrass the witness.”  Defendant has provided examples of Mr. Plummer’s conduct that did not conform to the Civility Guidelines.  For example, during the deposition, Mr. Plummer stated, that Defendant was “blabbering away,” “reading in garbage,” “incompetent,” and accusing Defendant of “plotting a crime.” (Notice of Lodgment (NOL) filed on 5-31-22 under ROA No. 1021; Deposition, pp. 47, 48, 117, and 134.) Mr. Plummer also made the unprofessional comment to opposing counsel that, “I am asking him about garbage that you have told the court in all your ex parte crap.”  (NOL; Deposition, p. 151.) 

Although Mr. Plummer’s conduct did not comply with the Civility Guidelines, this non-compliance does not warrant a protective order at this stage of the proceedings.  The court expects all parties to comply with the Civility Guidelines.  The court warns all parties that failure to comply with the Civility Guidelines could result in the issuance of a protective order.

Based on the above, the court DENIES Defendant’s (Sam Nabili) Motion for Discovery Protective Orders filed on 5-31-22 under ROA No. 1027.  The court declines to award a monetary sanction because the court finds that Defendant was substantially justified in bringing the Motion, and Plaintiff was substantially justified in opposing the Motion. (Code Civ. Proc., § 2025.420, subd. (h).)

Plaintiff is to give notice.