Case Number: BC701395 Hearing Date: February 14, 2020 Dept: 27

[TENTATIVE] ORDER RE: MOTION TO DISQUALIFY; MOTION FOR TERMINATING SANCTIONS

On April 5, 2018, plaintiffs Rosa Dellarina Salas and Margarita Caballero (collectively, “Plaintiffs”) filed this action against defendants Melody Bar, LLC, Christian Warren, and Robert Hughes for injuries sustained on May 5, 2017 when a speaker placed above an entrance fell and struck Plaintiffs on the head. Plaintiffs bring a motion to disqualify defense counsel Nelson & Griffin LLP and a motion for terminating sanctions.

Motion to Disqualify

Plaintiffs contend that Nelson & Griffin LLP should be disqualified for communicating with a third party witness, Lanier Stewart, and “illegally soliciting representation” before Stewart’s deposition began. Stewart testified that just before his deposition, defense counsel asked if he wanted representation and Stewart responded that he did not know what he needed representation for because he was not liable for anything. Plaintiffs argue defense counsel made this inquiry because defense counsel was trying to conceal an email that Stewart sent on April 17, 2018, in which Stewart described what he remembered about the incident of the speaker falling. Plaintiff contends defense counsel’s question about representation violated California Rules of Professional Conduct section 4.3 and is grounds for disqualification.

Disqualification is a “particularly heavy penalty” imposing “substantial hardship on the disqualified attorney’s innocent client, who must bear the monetary and other costs of finding a replacement.” Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300. An attorney is disqualified when “it is satisfactorily established that he or see 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.” (Ibid.) Rule 4.3 states that a lawyer shall not state or imply that the lawyer is disinterested when speaking with a non-represented party, not give legal advice to that person, and not seek to obtain privileged or confidential information from that person.

There is no evidence that by asking Stewart if he wanted representation, defense counsel stated or implied that he was disinterested, gave legal advice to Stewart, or sought to obtain privileged or confidential information from Stewart. Nor is there any evidence that defense counsel wrongfully acquired an unfair advantage by asking that question. Accordingly, there are no grounds for disqualification, and the motion is DENIED.

Motion for Terminating Sanctions

On January 22, 2020, Plaintiffs filed this motion for terminating sanction based on Defendants’ late production of the April 18, 2017 email from Stewart to “Oscar (Melody),” who is Oscar Armando Bela, the general manager of the bar where the incident occurred. In the email, Stewart described his memory of the incident on May 5, 2017. Plaintiffs claim they were prejudiced by Defendants’ failure to produce the email before Stewart’s deposition on January 3, 2020. In the deposition, Plaintiff’s counsel stated that he had spoken with Stewart a couple of months before the deposition and Stewart had told him about the email. Stewart testified that he had looked for the email at Plaintiff’s counsel’s request but could not find it. Defendants provided the document to defense counsel on January 6, 2020, who then produced it to Plaintiffs on January 9, 2020. Plaintiffs argue these events constitute spoliation of evidence and warrant sanctions.

“Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another’s use in pending or future litigation.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.) There is no destruction or alteration of evidence here. Rather, the gist of Plaintiffs’ argument is that Defendants failed to produce the email in time for Plaintiffs to ask Bela and Stewart about it at their depositions.

Nor is there evidence that Defendants willfully withheld the email from the document production. Plaintiffs present no evidence that defense counsel knew about the email before Stewart mentioned it at his deposition. There is no evidence defendants Christian Warren and Robert Hughes, who are apparently the owners of Melody Bar, knew about the email. Based on the evidence presented, the only people who knew about the email before Stewart testified about it were Stewart, Bela, and Plaintiffs’ counsel who had talked to Stewart about the email a couple months earlier. Six days after Stewart testified about the email, Defendants produced it.

Plaintiffs do not explain why Plaintiffs’ counsel did not ask defense counsel about the email when they first spoke with Stewart and learned he had sent it. If Plaintiffs’ counsel had alerted defense counsel to the existence of the email immediately after learning about it, they could have obtained a copy of the email before the Stewart’s deposition. Either Defendants would have produced it as they did on January 9, 2020, or Plaintiffs could have scheduled an informal discovery conference and then filed a motion to compel the production of the document before the deposition. Having failed to take those steps via the regular discovery procedures, Plaintiffs do not have grounds for seeking sanctions now.

Accordingly, Plaintiffs’ motion is DENIED.