Case No.: 1-12-CV-228043

Defendant moves to disqualify Plaintiff’s counsel Jack Russo and the Computerlaw Group LLP (“Computerlaw”). Plaintiff moves for sanctions against Defendant pursuant to Code of Civil Procedure section 128.7 for making the disqualification motion.

This action was commenced on July 10, 2012, by Mr. Russo and Computerlaw acting for Plaintiff. Defendant appeared through counsel Anand Judge on July 26, 2012. On August 17, 2012, Defendant filed a Substitution of Attorney, replacing Mr. Judge with Charles Bronitsky of the Law Offices of Peter Brewer. On November 27, 2012, Defendant, through Mr. Bronitsky, stipulated to an expedited court trial on March 4, 2013, and on November 29, 2012, the Court so ordered. On January 17, 2013, Defendant filed a bankruptcy petition, causing this case to be stayed. Defendant failed to appear at the bankruptcy review on September 26, 2013, which was continued to October 24, 2013. In its October 16, 2013 statement in anticipation of the October 24, 2013 hearing, Plaintiff stated that the bankruptcy stay had been lifted, and at that hearing at which Mr. Bronitsky represented Defendant, a trial setting conference was set for February 4, 2014. On November 13, 2013, Defendant filed a Substitution of Attorney, substituting himself for Mr. Bronitsky. On January 14, 2014, Defendant filed a Notice of Limited Scope Representation, stating that his former counsel, Mr. Judge, would represent him in a motion to disqualify Plaintiff’s counsel, “case management”, “pretrial preparation”, and “general settlement purposes”. The disqualification motion was filed on January 28, 2014. The trial date of May 12, 2014, was set at the February 4, 2014 conference, at which Mr. Judge and a colleague, Timothy English, represented Defendant.

I. Disqualification

Defendant’s request for judicial notice of a 2006 order in another case is denied, as the order is not relevant to any issue on this motion.

Defendant seeks disqualification of Plaintiff’s counsel pursuant to Rule 3-330(E) of the California Rules of Professional Conduct, based on the factual premises that: (1) he was a former client, and (2) by reason of such former representation, Mr. Russo received confidential information material to the current case. (Notice of Motion, at 2:2-5.)

Defendant’s proof does not establish that he was a former client. At most, Adozu was a potential client. Defendant admits that when he first met Mr. Russo, he understood that Mr. Russo represented Plaintiff and Patrick Barkhordarian. (Stirling Declaration, at 3:9-10.) That did not change. (Id., at 4:16-17 and 22-23.) The standard disclaimer on an attorney communication that the contents might be privileged (id., at 4:6-10) did not create an attorney-client relationship between Mr. Russo and Defendant personally.

If confidential information was presented to Mr. Russo, it was, in Defendant’s own words, “confidential information about Adozu and its technologies”—not Defendant personally. (Stirling Declaration, at 3:15-16.) Defendant does not prove, or even claim, that Adozu’s confidential information has been used in this litigation. Defendant attempts to claim that his own “potential equity position at Adozu” was “highly confidential” (id., at 3:11-13), but this is based on his own apparently uncommunicated “feeling” that it was confidential and an unarticulated “hope” that Mr. Russo would regard it as confidential. (Id.) However, given that this purportedly confidential discussion was on the same day as (and in the context of) the discussion with Adozu about potential representation of the company, this discussion could not have been confidential vis-à-vis Adozu. In any event, Defendant does not show how that particular datum is material to this case. No other “personal information” (id., at 3:22-4:1) is identified as confidential and disclosed.

Defendant’s premise fails on his own documents alone, before the Court considers the showing in opposition. In any event, given Plaintiff’s showing, it is abundantly clear that Defendant is not entitled to the relief sought. The motion is denied.

II. Sanctions

Plaintiff moves for sanctions pursuant to Code of Civil Procedure section 128.7. The statute provides that a signature on a filed paper such as a motion is a certification that the contentions are not legally or factually frivolous, have evidentiary support, and are not being presented for an improper purpose.

The motion for disqualification is signed by Defendant individually as well as by counsel Judge and English. Plaintiff seeks sanctions against all three. The Court is mindful of the limitation in subpart (d)(1).

As discussed above, the factual showing in support of this motion, even before considering Plaintiff’s showing in opposition, is so weak as to cause the Court to conclude that Defendant and counsel did not have a reasonable belief that the asserted factual contentions had evidentiary support, as required by section 128.7(b)(3).

As an independently sufficient basis, the Court finds that the circumstantial evidence is substantial that in bringing this motion, Defendant has been motivated by an improper purpose–e.g., “to harass or cause unnecessary delay or needless increase in the cost of litigation”, in the words of section 128.7(b)(1). The events which form the factual basis of Defendant’s motion are nothing new: they were well known to Defendant when this action was commenced in July 2012, and presumably to counsel on this motion who also represented Defendant at the outset. Defendant does not contend otherwise, but does not plausibly explain why, despite the knowledge of these facts and Mr. Russo’s representation of Plaintiff, he never raised this concern until one week before the matter was going to be set for trial for the second time.

Accordingly, the Court orders that Defendant, counsel Judge and counsel English are jointly and severally responsible for the reasonable attorney fees and costs incurred by Plaintiff in connection with opposing the disqualification motion and making the sanctions motion, including but not limited to meet and confer efforts in an attempt to forestall the filing of the disqualification motion. On or before March 28, 2014, Plaintiff may file and serve evidence to support the amount of this award, as well as a proposed form of order. Defendant may file and serve a response to this evidence on or before April 8, 2014, at which time the matter will be submitted.