Fine Consulting Services, Inc. vs. Alvarez

“[A] court retains discretion to disqualify a likely advocate-witness as counsel, notwithstanding client consent, where there is ‘a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.’ (Lyle[v. Superior Court (1981) 122 Cal.App.3d 470,] 482.)” (Doe v. Yim (2020) 55 Cal.App.5th 573, 581-582; see also Cal. Prof. Rules Conduct, Rule 3.7(a), comment 3.) “Disqualification of counsel when consent has been given must be based on a convincing showing of prejudice to the opposing party or the potential for palpable injury to the judicial process.” (Geringer v. Blue Rider Finance (2023) 94 Cal.App.4th 813, 822-823.)

“In exercising its discretion to disqualify counsel under the advocatewitness rule, a court must consider: (1) ‘“‘whether counsel’s testimony is, in fact, genuinely needed’”’; (2) ‘the possibility [opposing] counsel is using the motion to disqualify for purely tactical reasons’; and (3) ‘the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.’ [Citation.]” (Yim, supra, 55 Cal.App.5th at pp. 583–584.) “California courts have agreed that one purpose of the advocate-witness rule is to prevent fact finder confusion regarding whether an advocate-witness’s statement is to be considered proof or argument. [Citations.] They have identified another, related purpose of avoiding the risk of ‘the jurors’ tying [counsel’s] persuasiveness as an advocate to his credibility as a witness . . . .’ [Citations.]” (Yim, supra, 55 Cal.App.5th at p. 582.)

“In balancing the several competing interests, . . . ‘[t]he right of a party to be represented in litigation by the attorney of his or her choice is a significant right [citation] and ought not be abrogated in the absence of some indication the integrity of the judicial process will otherwise be injured. . . .’ [Citations.” (Mith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 580.)

“‘[T]rial judges must indicate on the record they have considered the appropriate factors and make specific findings of fact when weighing the conflicting interests involved in recusal motions.’ [Citation.] The court’s exercise of discretion must be affirmed on appeal if there is any fairly debatable justification for it under the law. [Citation.]” (Yim, supra, 55 Cal.App.5th at p. 584.)

The court may properly disqualify plaintiff’s counsel where the defendant “promptly moved to disqualify [an attorney] as counsel under the advocate-witness rule.” (Yim, supra, 55 Cal.App.5th at p. 577.) The Yim court affirmed the trial court order disqualifying the plaintiff’s counsel, finding the trial court had reasonably concluded there was a “near certainty” counsel would testify, had concluded the dual role would prejudice the defendant, had impliedly considered and rejected the motion was not sought for purely tactical reasons, and had explained the informed-consent exception did not apply due to the risk of prejudice to the defendant and to the integrity of the judicial process—especially where the plaintiff did not assert her interest in retaining her counsel of choice was heightened by any burden in retaining new counsel of paying for duplication of counsel’s efforts to date. (Doe v.

Yim (2020) 55 Cal.App.5th 573, 585.)

“‘[T]he trial court can disqualify counsel only where it is confronted with manifest interests which it must protect from palpable prejudice.’ [Citations.]” (Geringer v. Blue Rider Finance (2023) 94 Cal.App.5th 813, 821-822.) In Geringer v. Blue Rider Finance, the court reversed the trial court order disqualifying the plaintiff/crossdefendant’s counsel where the cross-defendant argued the moving parties had known for eight years that counsel would provide testimony at trial. (Id. at pp. 818-819.)

The appellate court found “the timing of the motion and the fact the [moving parties’ initially sought to preclude [the advocate-witness’s] testimony, not to disqualify him, strongly suggest the motion was filed for purely tactical reasons.” (Id. at p. 823.) The appellate court found the counsel’s “extensive involvement[—including representing the client in the underlying transaction, acting as counsel of record in the litigation, and indicating in an early case management conference statement that he would be trial counsel, and actively participating in discovery—] fully supports a finding not only of prejudice, but extreme prejudice if he were disqualified. [Citation.]” (Geringer, supra, 94 Cal.App.5th at p. 823.)

The Geringer court concluded the circumstances supported the moving party’s tactical purpose for the motion and that the trial court had improperly faulted the cross-defendant and counsel for not having “identified the issue earlier and ‘taken appropriate action to comply with rules of professional responsibility and California law.’” (Id. at pp. 823-824.)

Factor # 1: Genuinely Necessary Witness

Defendant SFA argues the limited ability to attack Attorney Charleston’s conduct and credibility are unduly prejudicial to Defendant SFA.

Here, it is undisputed that Attorney Charleston has personal knowledge of key events. It is also undisputed that Defendant SFA knew for years the role Attorney Charleston would play as a fact witness. In December 2023, Attorney Charleston was deposed in her capacity as Plaintiff’s PMK witness. (See Pitet Decl., Ex. 1.) Among other things, her testimony related to her setting up, testing, attempting to resolve technical issues with, and ultimately closing Ellen and Stephen’s e-mail accounts—all central issues in this case. (See, e.g., Pitet Decl., Ex. 1 at pp. 29-65, 108, 129, 140.) In fact, the parties’ 2024 Joint Witness List identifies Attorney Charleston as an anticipated witness with examination from both sides estimated to total five hours. (See ROA # 783.)

During the first jury trial, which ended in a mistrial, Plaintiff did not call Attorney Charleston in its case-in-chief. (See Pitet Decl., Ex. 2 at pp. 1-127.) Before resting its case, Plaintiff preemptively objected to Attorney Charleston’s being called as a witness by Defendant SFA. (See Pitet Decl., Ex. 2 [06/30/2026 Trial Tr.] at pp. 110-111.)

During Defendant’s opening statement, counsel contended Attorney Charleston “was manufacturing evidence to support” Plaintiff’s claims. (Pitet Decl., Ex. 2 at p. 138.) The court admonished counsel against making unfounded accusations against Attorney Charleston, advising “there might be ways of communicating what [defendant SFA’s] position is without using a phrase or making an accusation that will lead to the disbarment of an attorney . . . .” (Pitet Decl., Ex. 2 at p. 141.) The court also cautioned counsel against “slinging accusations that this Court finds to be unfounded, [as that] may trigger another obligation on [the court’s] part.” (Ibid.)

Defendant called Attorney Charleston as a witness, and she testified before the jury while serving as Plaintiff’s trial counsel. (See Charleston Decl. ¶ 9; Pitet Decl., Ex. 2 at pp. 144-188.)

Here, Defendant does not argue or submit evidence it was unable to fully elicit testimony from Attorney Charleston or fully advocate for its client at the first trial.

Factor # 2: Possibility of Tactical Purpose

Unlike the defendant in Yim that promptly moved to disqualify opposing counsel, Defendant SFA delayed months if not years to file the motion to disqualify. The court finds this case to be more analogous to the situation in Geringer. Attorney Charleston was extensively involved in the litigation from August 2019, and Defendant SFA knew of Attorney Charleston’s role as both trial counsel and a key witness no later than 2023. In June 2025, Attorney Charleston appeared for trial and actively participated as counsel at trial. (See Pitet Decl., Ex. 2.)

After the mistrial, Attorney Charleston filed a claim with the State Bar against defense counsel Attorney Pitet, alleging that defendant counsel Pitet knowingly made false statements accusing her of destroying evidence and manufacturing facts and evidence. (Id.) Attorney Pitet promptly responded to the inquiry, and the State Bar closed the matter without further investigation. (See id. at Exs. 5-6.)

Defendant SFA first moved to disqualify Attorney Charleston two months after the State Bar investigation had closed.

Defendant argues there was no delay because SFA did not know of the need for disqualification until (1) Attorney Charleston acted as trial counsel in the June 2025 trial; (2) trial counsel was admonished for attacking Charleston’s conduct; and (3) SFA learned in 01/2026 that Charleston had filed a State Bar complaint against SFA’s counsel.

SFA’s argument is not persuasive. First, Plaintiff identified Attorney Charleston as trial counsel in January 2023. (ROA # 640 [01/04/2023 CMC Statement].) Second, even if SFA remained unaware of the full scope of the situation until the June 2025 trial, SFA could and should have moved for disqualification at or shortly after that trial. In fact, the issue of disqualification came up on June 30, 2025, and Defendant SFA did not move to disqualify at that time.

Defendants knew as early as January 2023 and as late as June 2025 that Attorney Charleston would take on a dual role at trial and took no steps to disqualify, to object to Charleston’s testimony or continued representation, or otherwise alert the court to this issue.

Factor # 3: Plaintiff’s Interest in Chosen Representation

Lastly, Plaintiff has a significant interest in its chosen counsel. Like the counsel in Geringer, Attorney Charleston represented Plaintiff in the underlying transaction, acted as counsel of record in this litigation and actively participated in all material aspects of this litigation, including discovery. (Charleston Decl. ¶¶ 3-5.) Attorney Charleston has been extensively involved in this litigation since filing this action nearly seven years ago. The court notes Plaintiff here has co-counsel, Outwater and Pinckes LLP, but the court record reflects Attorney Charleston has acted as lead counsel throughout this action.

On balance, the court finds the circumstances do not justify an exercise of this court’s discretion to disqualify Attorney Charleston at this late stage. Defendant’s having to carefully consider its arguments before making unfounded accusations against Attorney Charleston is not palpable injury to Defendant or to the judicial process. Furthermore, Defendant’s lengthy delay in moving for disqualification supports a reasonable finding that this motion was made for tactical purposes.

Plaintiff to give notice.

9 Mendoza vs. TENTATIVE RULING: Sanchez Motion to Expunge Lis Pendens

Defendant Nalleli Morales-Ueligitone esa Nalleli Yesenia Sanchez moves to expunge the Notice of Pendency of Action relating to Assessor’s Parcel Number 014-032-02 and recorded in the Official Records of Orange County as Document Number 2023000232674. For the following reasons, the unopposed motion is GRANTED.

Standard on Motions to Expunge Lis Pendens

Pursuant to Code of Civil Procedure Section 405.30, “[a]t any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice.” A court “shall” grant a motion to expunge if: (1) the pleading upon which the lis pendens is based does not contain a real property claim (Code Civ. Proc., § 405.31); or (2) the claimant has not established by a preponderance of the evidence the probable validity of the real property claim (Code Civ. Proc., § 405.32). “Probable validity” means that it is more likely than not that the claimant will obtain a judgment against the Defendant on the claim. (Code Civ. Proc., § 405.3.)

After entry of judgment, a lis pendens may remain on record only if the claimant can meet the statutory burden to justify its continued maintenance. (Code Civ. Proc., §§ 405.30, 405.32; see also Knapp Development & Design v. Pal-Mal Props., Ltd. (1987) 195 Cal.App.3d 786, 789 [holding expungement is mandatory after judgment, unless the claimant can establish a continuing real property claim with probable validity]; Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1018-1019 [determining probable validity of real property claim post-judgment and while the appeal is pending].)

The burden of proof rests with the party responsible for filing the lis pendens. (Amalgamated Bank v. Superior Court (2007) 149