Case Number: BC666775 Hearing Date: June 08, 2018 Dept: 34

SUBJECT: Motion to disqualify counsel

Moving Party: Defendant Montebello Unified School District (“MUSD”), Benjamin Cardenas, Lani Cupchoy, Joanna Flores, and Edgar Cisneros

Resp. Party: Plaintiffs Susanna Contreras Smith and Cleve Pell

The motion is DENIED.

BACKGROUND:

Plaintiffs commenced this action on 6/29/17 against defendants for: (1) retaliation (Labor Code section 1102.5); (2) retaliation (Labor Code section 98.6); (3) violation of Bane Act; (4) violation of Government Code sections 8547.3 and 8547.8; (5) violation of Education Code sections 44113 and 44114; (6) violation of Government Code section 12653(a); and (7) injunctive relief. Plaintiff Contreras Smith was employed as Superintendent of Schools for MUSD and Pell was MUSD’s Chief Financial and Operations Officer. Plaintiffs allege that they discovered that Ruben J. Rojas, MUSD’s Chief Business Officer, had obtained his position through false statements on his application and was directing MUSD contracts to others in violation of public contracting laws. When plaintiffs brought this to the attention of MUSD’s Board of Education, the Board, including the individual defendants who were all Board members, sought to protect Rojas and voted to terminate plaintiffs for their whistleblowing.

ANALYSIS:

Defendants move to disqualify plaintiffs’ counsel, including counsel’s entire firm, and to exclude any testimony from Michael Weaver and Paul Bonin. (See Notice of Motion, p. 2:1-3.) Defendants argue that plaintiffs’ counsel has knowingly engaged in direct communication with MUSD employees during the course of the litigation in violation of California Rules of Professional Conduct rule 2-100. (See Id. at p. 2:3-6.)

Relevant Law

A party may move to disqualify counsel for the opposing party on grounds recognized by law. (Edmon & Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2017) ¶ 9:406.5.) A court has inherent 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 manner pertaining thereto.” (Code Civ. Proc. § 128(a)(5).) This includes the power to disqualify counsel in appropriate cases. (Edmon & Karnow, supra, ¶ 9:406.6 [citing In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 575].)

In ruling on a motion to disqualify, the Court must weigh: (1) the party’s right to counsel of choice; (2) the attorney’s interest in representing a client; (3) the financial burden on a client of changing counsel; (4) any tactical abuse underlying a disqualification motion; and (5) the principle that the fair resolution of disputes requires vigorous representation of parties by independent counsel. (Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126.)

Grounds for disqualification

“Whether an attorney who has violated [California Rules of Professional Conduct] 2-100 may be disqualified from representing the client lies within the trial court’s discretion.” (Tuft & Peck, Cal. Prac. Guide: Professional Responsibility (The Rutter Group 2017) ¶ 8:818; See Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 607-608 [attorney who made series of telephone calls to represented party was disqualified but his law firm was not].) Disqualification may be proper “if counsel’s misconduct is likely to have a continuing effect on the proceedings; e.g., enabling counsel to cross-examine opposing witnesses more effectively.” (Tuft & Peck, supra, at ¶ 8:819.) However, opposing counsel may not be disqualified “solely for punishment purposes. If the transgression is not likely to have any continuing effect on the proceedings, the party has the right to be represented by counsel of choice.” (Id. at ¶ 8:820; See Chronometrics, Inc., supra, at p. 608.)

California Rules of Professional Conduct Rule 2-100

California Rules of Professional Conduct (“CRPC”) rule 2-100 provides, in relevant part:

“(A) 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.

(B) For purposes of this rule, a ‘party’ includes:

officer, director, or managing agent of a corporation or association . . .; or

An association member or 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. Rules Prof. Conduct, rule 2-100, subd. (A)-(B).)

For purposes of rule 2-100(B)(1), “a ‘managing agent’ refers to those employees who ‘exercise substantial discretionary authority over decisions that determine organizational policy.’” (Tuft & Peck, supra, at ¶ 8:766; See Snider v. Sup. Ct. (Quantum Productions, Inc.) (2003) 113 Cal.App.4th 1187, 1209.) Additionally, “the ban on contacting employees whose statements may constitute ‘an admission’ apparently refers to those having managerial status (authority to speak on behalf of the corporation). However, ex parte contact with even middle and lower level employees is prohibited if it relates to their own acts or omission and their statements might be damaging to the corporation.” (Tuft & Peck, supra, at ¶ 8:768.) However, the prohibition on ex parte communications with lower level employees with respect to their own acts or omissions “does not address other knowledge or information of such employees — e.g., instructions received, conversations overheard, acts or omissions of other employees, etc.” (Id. at ¶ 8:770.)

Finally, “routine prelitigation investigation activities engaged in by counsel before sending a demand letter or filing a lawsuit are not prohibited by CRPC 2-100.” (Id. at ¶ 8:773; See Jorgensen v. Taco Bell Corp.(1996) 50 Cal.App.4th 1398, 1402.) The rule is not violated by pre-litigation communications “merely because the attorney ‘should know’ such employees will be represented after the action is filed.” (Tuft & Peck, supra, at ¶ 8:775; See Jorgensen, supra, at p. 1401.)

Discussion

Defendants argue that counsel for both plaintiffs must be disqualified for an “obvious and intentional” violation of rule 2-100. (See Motion, p. 4:23.) The alleged violations arise out of communications between Paul Bonin — “a private investigator hired by Plaintiffs’ counsel” — and two MUSD employees, Michael Weaver and Cynthia Colmenares. (See Id. at p. 2:10-25; 8:18-9:16.)

Mr. Bonin’s communications with Mr. Weaver

Mr. Weaver has been employed by MUSD since April 1996 and, at all times relevant to this action has been the “Facilities Project Supervisor” for the district. (See Id. at p. 2:2-9.) Defendants claim that Mr. Bonin “called Mr. Weaver at his employment and stated he wanted to interview Mr. Weaver about some particular Facts.” (Id. at p. 2:10-12.) Mr. Weaver indicated that he did not feel comfortable speaking during work hours but provided Mr. Bonin with his personal phone number and later agreed to meet with Mr. Bonin. (See Id. at p. 2:12-17.) Mr. Weaver has subsequently informed defense counsel that he met with Mr. Bonin after work on or about April 7, 2018 and that they spoke for approximately 2 hours. (See Id. at p. 2:18-21; Shinoff Decl., ¶¶ 3-4.)

Defendants argue that Mr. Weaver is a “managing agent,” and thus a “party” within the meaning of rule 2-100 such that Mr. Bonin’s ex parte communication with Mr. Weaver was improper and a sanctionable offense sufficient to disqualify plaintiff’s counsel. (See Id. at p. 6:11-8:1.) In support of this claim, defendants rely on White v. Ultramar (1999) 21 Cal.4th 563, in which a “zone manager . . . responsible for managing eight stores . . . and at least sixty-five employees” was found to be a managing agent within the meaning of rule 2-100. (See Id. at p. 6:18-26.) They argue that Mr. Weaver’s responsibilities are analogous to those of the zone manager in White v. Ultramar, because he “exercised substantial independent authority, directly made policy on some issues, and made recommendations directly to the Board of Directors as to others.” (See Id. at p. 6:26-28.) Defendants have submitted a copy of Mr. Weaver’s complete job description and emphasize the fact that he was responsible for, among other things:

“provide[] day-to-day leadership and works with staff to ensure a high-performance, customer service-oriented work environment . . . plans, schedules, assigns, supervises and reviews the work of District personnel . . . provides technical and professional assistance and advice to District administrators . . . researches and develops criteria for construction . . . reviews and analyzes submitted bids and advises District staff regarding the selection of the successful bidder . . . negotiates contracts . . . investigates and resolves complaints and problems . . . [and] participates in the development of construction policies, procedures, guidelines and standards for District facilities.”

(Id. at p. 7:4-28; Exh. B.)

In their oppositions, plaintiff argue that there was no rule 2-100 violation because Mr. Weaver cannot qualify as a managing agent. (See Smith Opposition, p. 10:18-11:20; Pell Opposition, p. 7:21-9:14.) In White v. Ultramar, the Supreme Court of California reasoned that by placing the term “managing agent,” “next to the terms ‘officer’ and director,’ the legislature intended a managing agent to be more than a mere supervisory employee.” (Id. at p. 573; Pell Opposition, p. 7:27-8:1.) The Court “specifically rejected a broader definition of managing agent, stating that, ‘[i]f we equate mere supervisory status with managing agent status, we will create a rule where corporate employers are liable for punitive damages in most employment cases.” (White v. Ultramar, supra, at p. 575.)

Plaintiffs thus argue that even though Mr. Weaver may have had certain supervisory duties, he did not have “the discretion and authority to set corporate policy.” (Smith Opposition, p. 11:1-2 [citing Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1209].) Plaintiff Smith argues that Mr. Weaver cannot be a managing agent because he is:

“an employee that is at least five levels below the Board of Education — the administrative body in charge of MUSD that actually sets MUSD policy . . . Mr. Weaver readily admits he can only recommend ‘policy changes,’ but cannot set MUSD policy . . . he does not employ a substantial amount of discretion in his day-to-day functions [because] he works under ‘direction from the Department Director and Maintenance Manager . . . [and he] does not exercise discretion in other aspects of his job that would imply any ability to set district policy. . . . he has no discretion to hire or fire employees in his department . . . [and] he does not even have authority to bind MUSD to any contracts.”

(See Smith Opposition, p. 11:3-18 [citing to Mr. Weaver’s deposition testimony, See Imoisili Decl., Exh. B].) Plaintiff Pell further argues that “[m]uch like the sales manager in Snider, Mr. Weaver provides input for organizational policies and decisions, but the actual authority to make organizational policy lies elsewhere (here, with MUSD’s Board) . . . he does not control hiring decisions; instead, the candidate must first go through HR, then the personnel commission, and then be ultimately approved by the Board.” (See Pell Opposition, p. 8:27-9:14 [citing to Mr. Weaver’s deposition testimony, King Decl., Exh. A].)

Based on Mr. Weaver’s job description, as well as Mr. Weaver’s deposition testimony, it does not appear that he qualifies as a “managing agent” within the meaning of rule 2-100(B)(1).

Defendants further argue that Mr. Bonin’s communications with Mr. Weaver constitute a violation of rule 2-100(B)(2) because “the available evidence suggests that [Mr. Weaver] was questioned on his ‘act[s] or omissions[] . . . in connection with the matter’ or matters at issue in this case. By virtue of respondeat superior liability, these acts or omissions could be imputed to the District, constitute an admission, or subject either Mr. Weaver and/or the District to liability.” (See Motion, p. 8:3-8 [citing Snider v. Superior Court, supra, at p. 1209].) Defendants fail to specify what “available evidence” they are referring to or how it suggests that Mr. Weaver was questioned about his own “acts or omissions” in relation to the subject of this action.

In their oppositions, plaintiffs maintain that “Mr. Weaver was not asked about his own acts or omissions, but only what he witnessed others do.” (Pell Opposition, p. 10:16-17; Bonin Decl., ¶ 6.) Plaintiff Smith elaborates, explaining that Mr. Bonin only sought to learn what Mr. Weaver had observed as a percipient witness. (Smith Opposition, p. 11:21-26.) Furthermore, Mr. Weaver’s own deposition testimony confirms that Mr. Bonin’s questions were “similar to what he was asked at his deposition” and that the deposition questions “did not concern [his] own actions or omission concerning the dispute, but [his] percipient knowledge and understanding of events surrounding the dispute.” (Id. at p. 12:1-8; Imoisili Decl, Exh. B.)

As noted above, Courts have routinely found that rule 2-100 does not prohibit ex parte communications with lower level employees so long as the questioning does not concern the employee’s own acts or omissions. (See Tuft & Peck, supra, at ¶ 8:770.)

The evidence submitted by defendants does not support the conclusion that Mr. Bonin, and by extension, plaintiffs’ counsel, violated rule 2-100 by meeting with Mr. Weaver.

Mr. Bonin’s Communications with Cynthia Colmenares

Defendants also claim that Mr. Bonin and plaintiffs’ counsel have engaged in “general bad faith and improper tactics” by “intimidating another potential witness and District employee,” Cynthia Colmenares.” (See Motion, p. 8:18-9:16.) Crucially, defendants allege that Mr. Bonin improperly communicated with Ms. Colmenares between May 14, 2017 and May 17, 2017. (See Ibid., Colmenares Decl., ¶¶ 1-6.) However, as defendants acknowledge, plaintiffs did not commence this action until June 29, 2017 and “plaintiffs were aware that counsel represented the District by no later than July 31, 2017. (See Motion, p. 1:27-2:1.)

By defendant’s own admission, Mr. Bonin’s alleged communications with Ms. Colmenares took place over two months before plaintiffs learned that the district was represented by counsel. As a result, those communications cannot constitute a violation of rule 2-100. (See Tuft & Peck, supra, at ¶ 8:773; See Jorgensen v. Taco Bell Corp., supra, at p. 1402.)

Conclusion

The Court concludes that defendant’s allegations and accompanying evidence are insufficient to establish a violation of Rule 2-100. Accordingly, there is no reason to disqualify plaintiff’s counsel, nor has defendant shown good cause to impose evidentiary or monetary sanctions.

The motion is DENIED.