Jane Doe vs Santa Barbra Graduate School Inc et al
Case No: 17CV04317
Hearing Date: Wed Jun 05, 2019 9:30

Nature of Proceedings: Disqualify Counsel

TENTATIVE RULING: Plaintiffs’ motion to disqualify defense counsel is denied.

BACKGROUND:

On September 26, 2017, plaintiffs Jane Doe and Jane Roe (both fictitious names utilized to protect plaintiffs’ privacy) filed their complaint in this action, asserting 12 causes of action, including claims for assault and battery, violation of the Unruh Civil Rights Act, violation of the California Education Code, negligence, and negligent misrepresentation. Plaintiffs allege that they were sexually harassed and assaulted by defendant Caleb Alexander (“Alexander”), a fellow student, while they were all enrolled in the Master’s of Psychology Program at defendant Pacifica Graduate Institute (“Pacifica”) during the 2016-2017 school year. Plaintiffs claim that when they reported Alexander’s alleged conduct to defendant Willow Young (“Young”), Pacifica’s Dean, Young was indifferent to their complaints and took no action.

Pacifica and Young are represented in the action by attorneys Mark G. Intrieri and Jessica A. Fakhimi of the law firm of Chapman & Intrieri, LLP. Plaintiffs seek to disqualify the Chapman firm, including attorneys Intrieri and Fakhimi, for alleged conflicts of interest in the case. Defendants oppose the motion.

ANALYSIS:

In general, an attorney may not represent a client in a matter where the attorney has a conflict of interest with a party adverse to the client. California Rules of Professional Conduct, Rule 1.7, subdivision (b), provides:

“A lawyer shall not, without informed written consent from each affected client . . . represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.”

Where a conflict of interest is shown to exist, the trial court has the power, on motion of a party, to disqualify the attorney from further representation in the matter. Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 299. A motion to disqualify counsel presents competing policy considerations, however. “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. [Citations.] On the other hand, it must keep in mind that disqualification usually imposes a substantial hardship on the disqualified attorney’s innocent client, who must bear the monetary and other costs of finding a replacement. A client deprived of the attorney of his choice suffers a particularly heavy penalty where . . . his attorney is highly skilled in the relevant area of the law.” Id., at 300.

Plaintiffs seek to disqualify the Chapman firm from representing Pacifica and Young because attorney Intrieri met with and interviewed defendant Alexander in August 2017, prior to the litigation being filed. Plaintiffs contend that any statements or admissions imparted by Alexander during the interview constitute critical evidence in the case and Intrieri will likely be a witness at trial. “[W]here it becomes likely that an attorney will testify as a material witness, he should ‘resolve any doubt in favor of preserving the integrity of his testimony and against his continued participation as trial counsel.’” Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1211, quoting People v. Dunkle (2005) 36 Cal.4th 861, 915. Plaintiffs claim that they may be harmed or prejudiced by defense counsels’ continuing participation in the case because they will be handicapped in challenging Intrieri’s credibility if he appears both as a witness and an advocate. “The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” Id., at 1209.

The court finds that attorney Intrieri did nothing inappropriate or unethical in interviewing Alexander. Plaintiffs and Pacifica agreed to mediate the case in advance of litigation, with the mediation scheduled for September 9, 2017. (Intrieri Dec., ¶3.) On August 2, 2017, in preparation for the mediation, Intrieri met with Alexander and interviewed him regarding the allegations. (Intrieri Dec., ¶4.) Prior to the interview, Intrieri advised Alexander that he was not his lawyer and could not represent him and that Alexander was under no obligation to meet with him and that his doing so was strictly voluntary. (Intrieri Dec., ¶5.) Alexander stated that he understood and voluntarily agreed to the meeting. (Ibid.) During Alexander’s deposition on November 18, 2018, plaintiffs’ counsel questioned Alexander about any and all communications he had with Intrieri and he answered all questions without any objections from defense counsel. (Intrieri Dec., ¶8.)

The mere fact that defense counsel interviewed Alexander on one occasion before the lawsuit was filed does not make counsel a “material witness,” subject to disqualification. Attorneys prosecuting or defending cases regularly interview witnesses as part of their investigation of a matter and such preparation work certainly does not warrant disqualification. Presumably, plaintiffs’ counsel has interviewed potential witnesses to the events alleged in the complaint and counsel certainly should not be disqualified for interviewing these witnesses. While plaintiffs contend that Intrieri may be called to testify at trial, the court finds this highly unlikely given Alexander’s deposition testimony and the fact that Intrieri has no personal knowledge of what allegedly transpired between plaintiffs and Alexander.

Plaintiffs next argue that the Chapman firm should be disqualified because attorneys in the firm purportedly assisted Alexander with his discovery responses to plaintiffs. However, defense counsel merely provided Alexander, who is in pro per and had previously failed to respond timely to discovery, with a proof of service form and a verification form so that he could properly respond to written discovery propounded by plaintiffs. (Fakhimi Dec., ¶¶ 2-3.) At no time did defense counsel ever advise, suggest, or recommend how Alexander should respond substantively to the discovery propounded to him. (Ibid.)

In their opposition, defendants argue that plaintiffs’ motion is frivolous and brought in bad faith, entitling them to sanctions. “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Code Civ. Proc. §128.5, subd. (a). The sanctions request will be denied as the court does not find that the motion was frivolous or brought in bad faith or to harass defendants.

For the above-stated reasons, plaintiffs’ motion to disqualify defense counsel will be denied.