Moving Party: Plaintiff Cleve Pell Let a peremptory writ of mandate issue commanding respondent superior court to vacate its order denying petitioner's motion for disqualification of the law firm of Barr, Newlan & Sinclair as counsel for real parties David Oscar Cook and Pincin Trucking and to make a new order granting the motion. Although the court declined to sanction the moving party, the court noted that the opposing partys request for sanctions was not unfounded.. 1370707 Ct. (1997) 60 Cal.App.4th 473, 577-582. of Corp. v. SpeeDee Oil Change Systems, Inc. (SpeeDee) (1999) 20 Cal.4th 1135, 114546. Therefore, Sharon argued that. Kinchen highlights Californias general rejection of disqualification based on the playbook theory. Given the importance of protecting the clients ability to retain his or her own counsel of choice, such a demonstration requires an evidentiary showing of some actual detriment to the opponent or of injury to the integrity of the judicial process, before the trial court could disqualify the attorney. Case No. First, there must be a substantial relationship between the former representation and the current representation. A recent decision from Westchester Commercial Division Justice Linda Jamieson presents an interesting contrast to a case we discussed in an earlier post.In Prisco v. L'Aquila Realty LLC, Index No. Mother provided further briefing. Earl Scheib, Inc. v. Super. Replies due . James Li and his firm 4 LiLaw, Inc. (together, Li) represented Epic. Cal. The plaintiff's counsel, Downtown Los Angeles Law Group attorney, Anthony Werbin, had previously done defense work for Costco. (2) NOTICE OF JOINDER; Accessing Verdicts requires a change to your plan. Sharon Collier prevailed on a motion to disqualify on behalf of client Costco. In the underlying cases, the plaintiff property owner sought a special, Cisco Cleared In $371M Software Patent Trial in Massachusetts, A jury in the U.S. District Court in Boston ruled in favor of Cisco Systems Inc. in a $371 million patent suit, finding that the California tech giant did not infringe a Massachusetts software companys, Dismissal Based on Eleventh Amendment Immunity in Medical Board Defamation Suit in California, FMG Attorneys Brian Skalsky, Lizel Cerezo, Al Alikin, and Will Hadikusumo, successfully obtained a dismissal with prejudice on behalf of their client, the North Carolina Medical Board (NCMB), in California federal court. Alternate trial counsel must make an appearance in this case on Defendant's behalf within thirty (30) days of this Order. Plaintiff Julie Pavlina San Giorgio (Julie) has filed a motion to disqualify the firm of Farella Braun & Martel (Farella), counsel for Defendant and Cross-complainant Stephen Pavlina, Jr. (Stephen).1 Proc., 284. The record on that motion included a declaration in support of the motion detailing facts about Attorney Spitzer's role as trial counsel in the Ranch Instead, the substantial relationship test controls. Nos. In 2009, Epic settled its claims against Ali 5 Corporation. Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356. This matter was last on calendar on 1/6/10. On 1/19 mother filed additional declaration of mother. (3) MOTION TO QUASH OR, IN THE ALTERNATIVE, MODIFY DEPOSITION SUBPOENA; REQUEST FOR SANCTIONS 10 23 This action arises from a dispute over the settlement of an earlier lawsuit. This was a significant victory for the client because Mr. Werbin was not directly involved in this specific lawsuit, and it was the first time Costco had prevailed on such a motion in Northern California, involving a location for which Mr. Werbin had never previously done work. Your credits were successfully purchased. The alternative writ is discharged. etc), #9 (Tommy is demonstrating increasing maturity; subtle shifts occurring; thrust of efforts be shared; confidential, etc) If competent evidence does not establish such a conflict, the attorney is not disqualified for a conflict. Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 425-426. the attorneys interest in representing a client; the financial burden on a client of change of counsel; any tactical abuse underlying a disqualification motion; and. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.. Nature of Proceedings: Motion to Disqualify; Motion to Amend 1 when new changes related to " are available. The purpose of disqualification is not to punish a transgression of professional ethics. 2022 California Rules of Court Rule 3.816. Id. 2022). [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 [Citation.] These decisions serve as a helpful reminder about how to evaluate and analyze conflicts and can help counsel and parties avoid wasting time and resources bringing a meritless disqualification motion. CLEVE PELL VS THE MONTEBELLO UNIFIED SCHOOL DISTRICT ET AL. Matters: (1) Motion of Defendants to Disqualify Gersh Derby as Counsel ..t attached as exhibit A to the motion is deemed served on the parties; plaintiffs shall file the first amended complaint, or arrange that the copy of the first amended complaint lodged with the court be filed, on or before January 13, 2012. Rptr. The courts apply a two-pronged test to determine whether the court must conclusively presume that an attorney has knowledge of confidential information about a prior client that requires the court to disqualify the attorney from representing a current client adverse to the prior client. You will lose the information in your envelope, Motion to Disqualify Counsel 01/22/2018 - Motion to Disqualify Counsel, ~CIV Minute Order - Motion to Disqualify Counsel 10/11/2017 - Motion to Di, BLANCA GUTIERREZ vs. CHRISTINA O'BRIEN, et al, CIV Minute Order - Motion to Disqualify Counsel, CYNTHIA HOLLOWAY VS. GILEAD SCIENCES, ET AL, Motion for Leave 10/07/2019 - Motion to Disqualify Counsel, THOMAS ANTON & ASSOCIATES, INC., A PROFESSIONAL CORPORATION VS ABLIN ET AL, Motion to Disqualify Counsel 04/02/2018 - Motion to Disqualify Counsel, LEE VS WIZARD GAMING, INC. DBA DIAMOND JIM'S CASINO, ~CIV Minute Order - Motion to Disqualify Counsel 11/19/2020 - Motion to Di, Hardeep Bhakhri vs. Ashwani Kumar Bhakhri, et al, ~CIV Minute Order - Motion to Disqualify Counsel 01/26/2021 - Motion to Di, PACIFIC DIVERSIFIED INVESTMENTS, LLC, a California limited liability compa, motion to disqualify MO - Motion to Disqualify Counsel, Motion to Disqualify Counsel 11/08/2019 - Motion to Disqualify Counsel, ~CIV Minute Order - Motion to Disqualify Counsel 07/02/2018 - Motion to Di, VIDA CAPITAL GROUP, LLC. Other courts permit disqualification on a different basis, holding that standing is established so long as the lawyer owed a duty of confidentiality to the complaining party and breached it. Last. Ct. (2008) 158 Cal.App.4th 1697, 1711. Ct. (1967) 253 Cal.App.2d 703, 707. BACKGROUND Where the substance and necessity of the attorney's testimony is unknown, a decision on disqualification should await discovery. 11 Discussion: Absent evidence of actual knowledge of material confidential information, both prongs of the test must be satisfied before a Court applies the conclusive presumption of knowledge of such information. 385 the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel. GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY LACourtConnect. PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. Plaintiff Cleve Pell filed suit on October 16, 2017 against Defendants The Montebello Unified School District ..basis for the continuance. Petrey Wholesale, Inc. March 5, 2013 March 5, 2013 In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. There are consolidated actions asserting claims of securities violations with respect to corporate stock. USA Motion to Disqualify Defense Counsel, CR. Your content views addon has successfully been added. The motion to disqualify Defendants counsel is DENIED. Resp. Your content views addon has successfully been added. When is informed consent curative? Ct. (1977) 67 Cal.App.3d 1, 4. A conflict arises when the circumstances of a particular case present a substantial risk that the lawyers representation of the client would be materially and adversely affected by the lawyers own interests or by the lawyers duties to another current client, a former client, or a third person. Your content views addon has successfully been added. Motions to disqualify counsel are especially prone to tactical abuse because disqualification imposes heavy burdens on both the clients and courts: clients are deprived of their chosen counsel, litigation costs inevitably increase and delays inevitably occur. In short, it is widely understood by judges that attorneys now commonly use disqualification motions for purely strategic purposes. Gregori v. Bank of America (1989) 207 Cal.App.3d 300, 301. [T]he court has an independent interest in ensuring trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all that observe them. Kennedy v. Eldridge (2011) 201 Cal.App.4th 1204-1205. Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. (Lira, I) Download PDF. 10 Below are some important concepts that have emerged in the context of motions to disqualify. 4th 1197, 1204-1205. [A] highly speculative and tactical interest does not meet the standing requirements. Id. "[W]hile federal courts generally limit standing to bring disqualification motions to clients or former clients, in California 'where the ethical breach is "'manifest and glaring'" and so "infects the litigation in which disqualification is sought that it impacts the moving party's interest in a just and lawful determination of [his or] her claims", a nonclient might meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest . The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. Specifically, California Rules of Court, rule 3.1362 (a), a motion to be relieved . 17, 2020), the Central District of California decided a motion to disqualify brought by the defendant based on two grounds: (1) a purported conflict based on plaintiff's counsel's prior employment by the defendant; and (2) plaintiff's counsel's improper receipt of information, procured by communicating with defendant's managing agent in an alleged violation of the "no contact" rule. App.). She reminds the Court that mother had brought a motio ..is no court order for the appointment of the mediator, and (3) a MSA not merged into a judgment is only a contract subject to contract defenses. Kane v. Chobani, Inc MOTION to Disqualify Counsel. Case: Jeffrey E. Mitchell v. Stratus Media Group, Inc., et al., Before Trial (The Rutter Group 2016) 9:382. During his employment as an AUSA, the plaintiffs counsel had represented the government in both criminal and civil matters, including defending employment law claims involving the USPS. The fact that the attorney has rendered valuable services under his employment, or that the client is indebted to him therefor, or for moneys advanced in the prosecution or defense of the action, does not deprive the client of this right. Fracasse v. Brent (1972) 6 Cal.3d 784, 790. 7 Please wait a moment while we load this page. Rule 1.9(c) prohibits attorneys from using information protected by Business and Professions Code section 6068(e) with respect to former clients. Some cases hold that the complaining party must prove a present or past attorney-client relationship with the attorney who is the target of the motion. Earl Scheib, Inc. v. Super. H046505, 2020 WL 5513420 (Cal. 1000 Second, in Fregoso v. Eat Club, Inc., No. Hahn Declaration CLA's member registration page has move to: https://calawyers.org/create-account/, If you have any questions, please contact us at info@calawyers.org. Your subscription has successfully been upgraded. 1 RWJ ADVANCED MARKETING, LLC ET AL. try clicking the minimize button instead. Disqualification is only justified where the misconduct will have a continuing effect on judicial proceedings. Sheller v. Super. Cross-Defendant W.L. On March 1, 2019, Plaintiff filed an ex parte application to request an evidentiary hearing because the declaration of Dr. Mark Skvarna that was submitted in Plaintiffs ex parte application for a trial continuance may have contained a forged signature and been submitted without his k (1) MOTION TO DISQUALIFY COUNSEL; ANALYSIS "[W]hile federal courts generally limit standing to bring disqualification motions to clients or former clients, in California 'where the ethical breach is "'manifest and glaring'" and so "infects the litigation in which disqualification is sought that it impacts the moving party's interest in a just and lawful determination of [his or] her claims", a nonclient might meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest . Some cases hold that the complaining party must prove a present or past attorney-client relationship with the attorney who is the target of the motion. Motions to disqualify counsel present competing policy considerations. A conflict arises when the circumstances of a particular case present a substantial risk that the lawyers representation of the client would be materially and adversely affected by the lawyers own interests or by the lawyers duties to another current client, a former client, or a third person. Nos. will be able to access it on trellis. PER Regulation 32155 does not empower an ALJ or other Board agent to rule on whether a Board member or the entire Board itself should be disqualified. 4 ORDER GRANTING MOTION TO RECUSE DAVID REPLOGLE, ESQ. Lawyers, and sometimes courts, struggle with complicated questions about conflicts of interest. . We will email you The court denied the motion for sanctions, noting, Plaintiffs Motion to Disqualify was supported by some, albeit scant, evidence. First, there must be a substantial relationship between the former representation and the current representation. based on prior representation of opposing party Copyright: Attribution Non-Commercial (BY-NC) Available Formats Download as PDF, TXT or read online from Scribd Flag for inappropriate content of 12 by clicking the Inbox on the top right hand corner. Motions to disqualify counsel are especially prone to tactical abuse because disqualification imposes heavy burdens on both the clients and courts: clients are deprived of their chosen counsel, litigation costs inevitably increase and delays inevitably occur. Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356. at 1358. Plaintiff moves to recuse counsel for Defendants James Hyojin Ahn and Robert Ahn. NICOLE HEININGER VS STUDIO CORBEAU, INC., A CALIFORNIA CORPORATION,, ET AL. A complaining party who files a motion to disqualify is required to have standing. ET AL. I.e., on proper notice to the existing counsel and to all other parties, the client is entitled to a court order substituting new counsel, or substituting the client in propria persona. Weil & Brown, Civ. Proc., 128(a)(5). The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: It has long been recognized in this state that the clients power to discharge an attorney, with or without cause, is absolute. Nos. 12 YI-CHING PAO, an individual, 13 Plaintiff, TENTATIVE RULING RE: MOTION TO DISQUALIFY 14 vs. will be able to access it on trellis. The courts apply a two-pronged test to determine whether the court must conclusively presume that an attorney has knowledge of confidential information about a prior client that requires the court to disqualify the attorney from representing a current client adverse to the prior client. Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356. Second, it must appear that by virtue of the nature of the former representation or the relationship of the attorney to his [or her] former client that confidential information material to the current dispute would normally have been imparted to the attorney. Id. RWJ ADVANCED MARKETING, LLC ET AL. We will email you of Corp. v. SpeeDee Oil Change Systems, Inc. (SpeeDee) (1999) 20 Cal.4th 1135, 114546. Specifically, the defendant argued that plaintiffs counsel possessed confidential information by virtue of his prior representation of the USPS, including that, in the context of a discovery dispute, plaintiffs counsel submitted a declaration citing his prior employment as an AUSA and noting his surprise at the defendants small production of documents. Nature of Proceedings: Motion: Disqualify Counsel filed by Alma Del Pueblo (Dino v 9 COUNTY OF SANTA CLARA 388 Ct., 177 Cal.App.3d 1021, 1028 (1986). The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: 1. Please note that when you try to challenge, or disqualify, a judge on the basis of prejudice, the challenge is often referred to as a "peremptory challenge." We have notified your account executive who will contact you shortly. She is a co-vice chair and founding member of the Ethics Committee of the California Lawyers Association. at 1145. An attorney moving to be relieved as counsel under Code of Civil Procedure, 284(2) must meet the requirements set out in California Rules of Court, rule 3.1362. Dept. Notice of Motion and Motion to be Relieved as Counsel; Declaration in Support of Attorney's Motion to be Relieved as Counsel; and. Lucy H. Koh. Jeffrey E. Mitchell v. Stratus Media Group, Inc., et al. RWJ ADVANCED MARKETING, LLC ET AL. (Defendants Ex Parte Application to Continue Trial, p. 2:18-19; Skvarna Declaration.) Last. 4th 1197, 1204-1205. App. Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1355. Accessing Verdicts requires a change to your plan. Plaintiff Cleve Pell filed suit on October 16, 2017 against Defendants The Montebello Unified School District ..basis for the continuance. The Georgia Court of Appeals recently granted a petition for interlocutory review filed by Atlanta Partners Wayne Melnick, Michael Freed, and Wes Jackson, of. [A] highly speculative and tactical interest does not meet the standing requirements. Id. 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. On the other hand, it must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorneys innocent client, who must bear the monetary and other costs of finding a replacement. Discussion: A160921 (Cal. Bauer Declaration Defendant also argued that counsel violated California Rule of Professional Conduct 4.2 (the no contact rule) by contacting a managing agent of the USPS directly, further warranting disqualification. Gilbert v. Natl Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240, 1258, citing Smith, Smith & Kring v. Super. A client deprived of the attorney of his choice suffers a particularly heavy penalty where, as appears to be the case here, his attorney is highly skilled in the relevant area of the law. Gregori v. Bank of America ((1989) 207 Cal.App.3d 300. In July 2013, Attorney Spitzer filed a motion to dismiss or convert the Debtors' chapter 11 case. DONE and ORDERED in Tampa, Florida on April 11, 2016. California, 494 U.S. 1039 (1990) . These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia. You can always see your envelopes She is a certified specialist in legal malpractice law as certified by the California State Bars Board of Specialization. INC., a California corporation, Plaintiff, v. LANTERN CREDIT, LLC, F/K/A NEW ENGLAND FUNDING TECHNOLOGIES, LLC, a Delaware limited liability corporation; and DOES 1-10, inclusive, Defendant. 3 In one recent out-of-state case, while denying a motion for disqualification in a patent infringement case, the court evaluated the opposing partys motion for sanctions based on the plaintiffs filing of a purportedly frivolous motion to disqualify. Nos. Adding your team is easy in the "Manage Company Users" tab. You will lose the information in your envelope, Points and Authorities ISO Attorneys' Fees, KERN WATER BANK AUTHORITY VS KERN LOCAL AGENCY FORMATION COMMISSION, DECLARATION IN SUPPORT OF ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL (20S, Vijay Lathi, et al vs. Nilufar Gamini, et al, PROOF OF SERVICE (20STCV16906) (TRANSACTION ID # 68849034) FILED BY PLAINT, Ex Parte Application - Notice Required - for TRO the Trustee's Sale, Gregory Allen Hood et al vs Mark Ginkel MD et al, SAN MATEO-FOSTER CITY SCHOOL DISTRICT vs. DAVID SWIFT, et al, MOHFEI GEH vs. LYDIA OSORIO BARTOLOME, et al, Julie Pavlina San Giorgio vs Stephen Pavlina, Jr. et al. Northern District. Motion Hearing set for 8/18/2011 01:30 PM in Courtroom 4, 5th Floor, San Jose before Hon. In its motion to disqualify, the employer defendant argued that the firm representing the plaintiffs had a direct, actual conflict. Dept. 300-301), Justice Kline's opinion explained that the 17 prophylactic nature of the disqualification remedy means the focus of the analysis must be on "whether there exists a genuine likelihood . Accessing Verdicts requires a change to your plan. Specifically, the court concluded that there was no direct adversity as between the two sets of plaintiffs and that, moreover, the affected clients confirmed that they had in effect given their informed written consent to concurrent representation., Finally, the court rejected disqualification based on plaintiffs counsels receipt of privileged emails, noting that counsel had not misused, and would not likely misuse, its knowledge of the privileged communications to gain an unfair advantage., In both Kinchen and Fregoso, the court denied disqualification. Last. The purpose of disqualification is not to punish a transgression of professional ethics. the matters involved in both representations are substantially related, and . DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832. [I]f the nature of the representation is such that confidences could have been exchanged between the lawyer and client, and it would be if it satisfies both prongs of this test, courts will conclusively presume they were exchanged, and disqualification will be required. City Nat. 5 [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 [Citation.] . TENTATIVE RULING: 1 - 2: SUSTAINED. When in doubt, consult with an expert who can help ascertain whether the salient facts and applicable authority support a motion for disqualification. (Dino v 9 COUNTY OF SANTA CLARA NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. 1000 Proc. Dept. RULING: The motion is deni ..first amended complaint (FAC) on December 19, 2018. In ruling on a motion to disqualify, the court should weigh: Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126. 393 It appears that Plaintiffs unsuccessful attempt to disqualify opposing counsel was the result of a lack of sufficient factual and legal research and analysis, apparently due in part to the difficulty of obtaining complete records about an alleged attorney-client relationship many years ago. (See Enventure Global Technology Inc. v. Weatherford U.S. LP, U.S. District Court for the Southern District of Texas, Case Number 4:19-cv-02397, Order dated December 11, 2020). The Defendant requests that the Court order the Plaintiff to serve further responses to his form and special interrogatories. There are consolidated actions asserting claims of securities violations with respect to corporate stock. ARIA SARBELAND, et al, REPLY TO PLTFS OPPOSITION TO MOTION TO RECUSE CATHERINE BOSKOFF AS COUNSEL. When are two representations substantially related? and consolidated case, Plaintiffs Evidentiary Objections A motion to disqualify tests whether the opposing partys right to counsel of his or her choice, which is an important right, must yield to ethical considerations that affect the fundamental principles of our judicial process. People ex rel. Responses due by 7/25/2011. Mar. Alison Buchanan is a shareholder with Hoge, Fenton, Jones & Appel, in San Jose, California. The court evaluated the motion using California Rules of Professional Conduct 1.9 (regarding conflicts with former clients) and 1.11 (regarding former government attorneys, and referring to Rule 1.9(c)).
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