Case Number: KC063640    Hearing Date: July 24, 2014    Dept: O

Letran v. Ayers, et al. (KC063640)

Defendants Dental Health Services and Ayers’s MOTION FOR AN ORDER DISQUALIFYING MICHAEL J. KHOURI AND THE KHOURI LAW FIRM

Respondent: Plaintiff LeTran

TENTATIVE RULING

Defendants Dental Health Services and Ayers’s motion for an order disqualifying Michael J. Khouri and The Khouri Law Firm is DENIED.

Every court shall have the 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 matter pertaining thereto. (CCP 128(a)(5).)

Defendants rely on Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197 for the proposition that disqualification is necessary in this instance because Plaintiff’s counsel is acting in the dual roles of advocate and witness. However, Kennedy v. Eldridge is distinguishable. There, “[i]n a roiling support and custody dispute involving an infant child,” the trial court acted within its discretion to disqualify the child’s paternal grandfather from representing his son, who is the father, against the mother of his grandson because “there exists a genuine likelihood that the status or misconduct of the attorney in question will affect the outcome of the proceedings before the court. Thus, disqualification is proper where, as a result of a prior representation or through improper means, there is a reasonable probability counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation… Although the trial court found that Kayla was not a former client of the Eldridge firm, it did NOT find that the firm had no exposure to confidential information about her. On the contrary, the trial court was very troubled by the fact that the Eldridges may have acquired confidential facts about her and her family’s situation that could be used to Tyler’s advantage. Not only did the firm represent Kayla’s father, Kayla herself had filed a declaration in his case at the request of her stepmother Megan, who was a secretary at the Eldridge firm.” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1200-1205.)

Here, Defendants admit there is no current or potential conflict of interest between them and Plaintiff’s counsel. Defendants make no showing that “confidential” information was ever relayed to Plaintiff’s counsel. Instead, Defendants seek to disqualify Plaintiff’s counsel because Plaintiff acted on advice of counsel, and according to Defendants, this advice somehow now makes counsel a witness in the case. This logic would potentially support disqualification of every attorney for every client involved in litigation.

…[M]otions to disqualify counsel often pose the very threat to the integrity of the judicial process that they purport to prevent. Such motions can be misused to harass opposing counsel, to delay the litigation, or to intimidate an adversary into accepting settlement on terms that would not otherwise be acceptable. In short, it is widely understood by judges that “attorneys now commonly use disqualification motions for purely strategic purposes. Gregori v. Bank of Am., (1989) 207 Cal. App. 3d 291, 300-01 [internal citations omitted].

Defendant purports to not be seeking this disqualification to protect their client, but to protect the plaintiff and the integrity of the judicial process. The concern is groundless. The standing issue aside, nothing raised in the motion suggests that counsel acted beyond his role as advocate for Plaintiff or necessitates his being called as a witness. The fact of any non-privileged communications by the attorney on behalf of the client, if relevant, appear to not be disputed. The thought process of the attorney in making the communication or doing the acts and the reasons behind them are privileged as work-product or attorney/client communications. It is doubtful any trial court would allow opposing counsel to call the plaintiff’s attorney as a witness under these circumstances and even if the trial court allowed such there are less drastic measures to protect the client than denying the client the representation of her chosen counsel.

The motion is DENIED.