Case Name: F. Nguyen vs H. Pham
Case No.: 20151CV276295

Defendant Howie Pham (“Defendant”) has moved to disqualify counsel for Plaintiff Frank Nguyen, Michael Vu, because Mr. Vu allegedly will be required to testify as a witness. It appears that Defendant intends to call Mr. Vu, to testify that Plaintiff actually consented to an email sent to customers of the parties’ jointly owned business.

In response to the reply papers filed by Defendant, the Court first notes that counsel’s consent to electronic service is no longer required, and counsel are required as accept papers served electronically. (Local Rules, General Rule 6A.) It is apparent that Defendant was not prejudiced by the late opposition, and the Court will exercise its discretion to consider the tardy opposition.

The Court notes that Defendant has created the alleged conflict, by its stated intention to call opposing counsel as a witness which has led to the attempt to disqualify opposing counsel. Initially, the Court notes that an opponent cannot automatically compel the testimony of opposing counsel, particularly where privileged information is implicated, as it is here. It does not appear that Plaintiff or his attorney intend to call Mr. Vu as a witness. This is purely Defendant’s idea.

“[A]s courts are increasingly aware, motions 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 America (1989) 207 Cal.App.3d 291, 300, 301.)

The Motion to disqualify is DENIED. Not only will the subject of the proposed testimony likely be privileged (whether the Plaintiff knew of discussions between his attorney and defense counsel), and therefore not admissible, and it appears that this motion is for purely strategic purposes.

Opposing party shall prepare the order.