Case Number: BC572719    Hearing Date: June 13, 2016    Dept: O

Zepeda v. Fumble Recovery, Inc., et al. (BC572719)

1. Defendant Serafin’s MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL

Respondent: Plaintiff Zepeda

2. Plaintiff Zepeda’s MOTION TO COMPEL DEPOSITION OF DEFENDANTS

Respondent: Defendants Serafin, L.A.W. Recovery Services, Inc., Benarbachian, Jewell and Jusay

TENTATIVE RULING

1. Motion to Disqualify

Defendant Serafin’s motion to disqualify plaintiff’s counsel is DENIED. Plaintiff’s counsel’s request for fees per CCP 128.5 is denied as the court finds Defendant had substantial justification for bringing the motion.

While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer. (Cal. R. Prof. Conduct Rule 2-100(A).) A “party” includes…an EMPLOYEE of an association, corporation, or partnership, IF THE SUBJECT OF THE COMMUNICATION IS ANY ACT OR OMISSION OF SUCH PERSON IN CONNECTION WITH THE MATTER which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. (Cal. R. Prof. Conduct Rule 2-100(B)(2).)

“Case law makes clear that Cal. R. Prof. Conduct 2-100 is only a bar to ex parte contact if the lawyer seeking contact ACTUALLY KNOWS OF THE REPRESENTATION. THE PROSCRIPTION AGAINST EX PARTE CONTACT DOES NOT APPLY MERELY BECAUSE AN ATTORNEY SHOULD KNOW that the opposing party will be represented by some unidentified attorney at some time after a complaint is filed. A bright line rule is absolutely necessary in this situation. Lawyers should not be at risk of disciplinary action for violating Rule 2-100 because they “should have known” that an opposing party was represented or would be represented at some time in the future. Rule 2-100 does not provide for constructive knowledge. It provides only for actual knowledge… If the status or misconduct which is urged as a ground for disqualification of counsel will have a CONTINUING EFFECT ON THE JUDICIAL PROCEEDINGS WHICH ARE BEFORE THE COURT, it is justified in refusing to permit the lawyer to participate in such proceedings. If, on the other hand, the court’s purpose is to punish a transgression which has no substantial continuing effect on the judicial proceedings to occur in the future, neither the court’s inherent power to control its proceedings nor the Cal. Code Civ. Proc. § 128 statutory powers can be stretched to support the disqualification.” (Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal. App. 4th 719, 732.)

Here, Defendant moves to disqualify Plaintiff’s counsel because he had ex parte communications with Defendant Jewell when he was allegedly represented. According to Defendant, Attorney Bernstein advised Plaintiff’s counsel in November 2014 that he represented Fumble Recovery, Inc., L.A.W. Recovery Inc., “AND THEIR OFFICERS, EMPLOYEES AND AGENTS.” (Bernstein Decl., Par. 4.) Bernstein refers to an email dated 11/17/14, attached as Ex. 2, but that email is not attached to Ex. 2.

According to Plaintiff, Jewell contacted him directly, and ADVISED PLAINTIFF’S COUNSEL THAT “HE WAS UNREPRESENTED, ACTIVELY LOOKING FOR A LAWYER, AND WAS AN INDEPENDENT CONTRACTOR, NOT EMPLOYED BY ANY OF THE DEFENDANTS.” (Allgreen Decl., 6:2-4.) Plaintiff contends that Bernstein’s 11/17/14 email does not advise that Bernstein was representing the corporate agents. Plaintiff refers to the 11/17/14 email, attached as Ex. 18, but that email is not attached to Ex. 18.

[Both parties are ordered to bring a copy of this elusive 11/17/14 email to the hearing.]

Based on the evidence submitted, the court finds that Defendant has not met its burden of demonstrating that disqualification is necessary in this instance. “Case law makes clear that Cal. R. Prof. Conduct 2-100 is only a bar to ex parte contact if the lawyer seeking contact actually knows of the representation. THE PROSCRIPTION AGAINST EX PARTE CONTACT DOES NOT APPLY MERELY BECAUSE AN ATTORNEY SHOULD KNOW that the opposing party will be represented by some unidentified attorney at some time after a complaint is filed.” (Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal. App. 4th 719, 732.)

Here, although Bernstein had advised Plaintiff’s counsel that he represented the corporate entities (and even if that representation includes their agents), Jewell informed Plaintiff’s counsel that he was unrepresented and an independent contractor. An independent contractor is not an agent. Even after the meeting with Jewell, the status of Jewell’s representation apparently was unclear. The first time Plaintiff’s counsel was informed that Jewell was represented was when he received an email from a firm called Fowler Law Group dated 6/18/15. (Opposition, Ex. 17.)

Further, it is not shown that the information that was relayed would have “a continuing effect on the judicial proceedings which are before the court.” Jewell declares that “Allgreen began asking me detailed questions about my background, the incident involving plaintiff, and my relationship to Fumble.” (Jewell Decl., Par. 7.) In opposition, Plaintiff’s counsel declares that he did not obtain information “aside from the information that he was married, had children, and Defendants Benarbachian and Serafin were somehow related through marriage.” (Allgreen Decl., 7:12-14.) Jewell did not specify what he means by “the incident involving Plaintiff,” and the court cannot find that Defendant met its burden of establishing that the conversation will have a continuing effect on the judicial proceedings. Jewell does not identify any disclosure that would give Plaintiff any unfair advantage in this case.

Accordingly, motion is DENIED. Plaintiff’s counsel’s request for fees per CCP 128.5 is also denied as the court finds Defendant had substantial justification for bringing the motion. Even if Bernstein’s 11/17/14 email does not indicate he represents the corporate agents, Cal. R. Prof. Conduct Rule 2-100(A(2) defines “party” as including an employee of the corporation.

2. Motion to Compel Depositions

Plaintiff Zepeda’s motion to compel deposition of defendants is GRANTED. Defendants are ordered to appear at the next properly noticed deposition. No sanctions.

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice. (CCP 2025.450(a).) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the deposition notice; and shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP 2025.450(b).)

Based on the court’s determination in the concurrent motion to disqualify, the parties can now move forward with discovery and the depositions. Motion is GRANTED. Defendants are ordered to appear at the next properly noticed deposition. No sanctions.