Darling vs. SRPP III, LP

3. 30-2024-01434147 1. Case Management Conference 2. Motion-Other Darling vs. SRPP III, (for Evidentary Hearing Regarding Discovery Misconduct) LP 3. Motion to Disqualify Attorney of Record 4. Motion to Quash Subpoena 5. Order to Show Cause

Motion to Quash Subpoena and for Protective Order (ROA 221)

Plaintiffs Oriann Clair Darling and Lucas Budwig (“Plaintiffs”) seek an order quashing the medical records subpoena issued by Defendants SRPP III, LP and Sullivan Properties Inc. (“Defendants”) to Eduard Drannikov, MD. Plaintiffs also seek a protective order and monetary sanctions.

Defendants represent that they have withdrawn the subject subpoena. Accordingly, the Court hereby deems the subpoena WITHDRAWN. The subpoena having been withdrawn, the motion is now MOOT insofar as it seeks to quash the subpoena.

Plaintiffs purport to seek a protective order to limit the scope of production of Plaintiffs Darling’s medical records, ostensibly pursuant to the now-withdrawn subpoena. However, the proposed protective order is a protective order governing the exchange of confidential information. (See Darling Decl., Exh. 5.) This Court already—more than a year ago—signed a stipulated protective order governing the exchange of confidential materials. (ROA 130.) Plaintiffs have not made any showing that the previously-entered protective order is now inadequate.

Further, a protective order governing the exchange of confidential materials does not accomplish Plaintiffs’ stated objectives of limiting the scope of medical records to be produced. Finally, as the subject subpoena has been withdrawn, there is nothing before the Court upon which the Court could base a protective order of the type requested by Plaintiffs. The Court would be ruling in a vacuum.

Accordingly, Plaintiffs’ request for a protective order is DENIED.

Plaintiffs’ request for monetary sanctions pursuant to CCP § 2031.060(h) is DENIED.

Motion for Evidentiary Hearing re Discovery Misconduct (ROA 271)

Plaintiffs’ motion for evidentiary hearing regarding discovery misconduct is DENIED.

Plaintiffs seek an evidentiary hearing to resolve various discovery disputes. However, the evidentiary hearing is not sought in connection with any particular motion. Further, the Court is not convinced at this time that live testimony would be necessary, or even helpful, to resolve any of the discovery disputes identified in this motion.

Motion to Disqualify Attorney

Plaintiffs Oriann Clair Darling and Lucas Budwig’s (“Plaintiffs”) motion to disqualify attorneys Mark Heinish, Kimia Karami and the law firm of Hinshaw & Culbertson LLP (collectively, the “Attorneys”) from representing Defendants in this action is DENIED.

“A trial court's authority to disqualify an attorney derives from its inherent power, codified at Code of Civil Procedure section 128, subdivision (a)(5), to control the conduct of its ministerial officers and of all other persons connected with its proceedings in furtherance of justice. Disqualification may be ordered as a prophylactic measure against a prospective ethical violation likely to have a substantial

continuing effect on future proceedings.” (Doe v. Yim (2020) 55 Cal.App.5th 573, 581 (citations omitted).)

Plaintiffs’ motion is made on the grounds that the Attorneys’ representation of Defendants in this action violates California Rules of Professional Conduct Rules 3.7 and 1.7, primarily because attorneys Heinish and Karami are necessary witnesses to issues in this case.

Disqualification under Rule 3.7. Rule 3.7, entitled “Lawyer as Witness,” reads, in pertinent part:

(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: (1) the lawyer’s testimony relates to an uncontested issue or matter; (2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or (3) the lawyer has obtained informed written consent from the client. . . (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm* is likely to be called as a witness unless precluded from doing so by rule 1.7 [Conflict of Interest: Current Clients] or rule 1.9 [Duties to Former Clients].

Plaintiffs contend that the Attorneys are witnesses to conduct concerning various discovery disputes. Namely, the failure to produce the LP Agreement, even after ordered to do so by this Court; producing inconsistent responses to Form Interrogatory No. 4.1 (regarding disclosure of insurance policies) that Plaintiffs contend could not have been a mistaken discrepancy or oversight; failing to cooperate with making Kris Kipness and other representatives of Defendants available for depositions; and failing to disclose how, when, or whether their clients had searched Microsoft Teams for responsive documents.

Plaintiffs contend that the entire law firm of Hinshaw & Culbertson LLP should be disqualified pursuant to Rule 1.7 on the basis of Heinish and Karami’s conduct because the firm now has a conflict of interest with its clients (Defendants), as Defendants refused to provide details about their Microsoft Teams search on the advice of counsel, and counsel now contends that responses to discovery were based on information supplied by Defendants.

“ ‘In exercising its discretion to disqualify counsel under the advocate-witness 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.” ’ ” (Geringer v. Blue Rider Finance (2023) 94 Cal.App.5th 813, 822.)

All of the conduct that allegedly makes the Attorneys witnesses consists of garden variety discovery disputes. These are pretrial matters that are collateral to the issues to be determined at trial. Plaintiffs may seek to resolve these matters through the mechanisms provided by the Discovery Act, but they do not constitute grounds for disqualification. To the extent that witnesses are needed to testify at trial regarding any verified responses, the party representative who verified the responses shall serve as witness. Thus, the Court does not find that counsel’s testimony is genuinely needed at trial. Further,

the interest of Defendants in representation by counsel of their choice weighs heavily against disqualification in this case, where trial is approximately four months away.

Plaintiffs cite Doe v. Yim for the proposition that the term “trial” as used in Rule 3.7 includes a pretrial evidentiary hearing at which counsel is likely to testify. (See Doe v. Yim (2020) 55 Cal.App.5th 573, 583.) Here, there is currently no such evidentiary hearing anticipated. The discovery disputes can be resolved, as they routinely are, by way of declarations and argument of counsel.

Accordingly, the motion is DENIED.

Plaintiffs’ requests for judicial notice are denied as immaterial to the disposition of this motion.

Clerk to give notice.

4. 30-2024-01412908 1. Motion to Be Relieved as Counsel of Record

DSC41, LLC vs. ERN Michael J. Sachs and Scott D. Nelson, Callahan & Blaine, PC (“Moving Counsel”), move to be Trucking, Inc relieved as counsel of record for Plaintiff, DSC41, LLC.

Moving Counsel has stated a basis for permissive withdrawal under Rules of Professional Conduct, Rule 1.16 based on a breakdown in communications between the client and Moving Counsel, and the client’s conduct which has made it unreasonably difficult for Moving Counsel to effectively carry out the remainder of this representation. (ROA 79, Judicial Council Form MC-052, Declaration in Support of Attorney’s Motion to be Relieved as Counsel, ¶ 2.) California Rules of Professional Conduct, Rule 1.16(b)(4) provides that a lawyer may withdraw from representing a client if “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively.”

Moving Attorney has also utilized the Judicial Council Forms (MC-051, MC-052, and MC-053), and has satisfied the notice, declaration, proposed order, and service requirements of California Rules of Court, rule 3.1362.

The motion to be relieved as counsel of record is GRANTED.

“An attorney may be allowed to withdraw without offending the rule against corporate self- representation.” (Thomas G. Ferruzzo, Inc. v. Superior Court (1980) 104 Cal.App.3d 501, 504.) However, an entity such as Defendant, Electronic Commerce LLC, cannot represent itself. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 n.5.) Defendant, Electronic Commerce LLC, must obtain representation or risk forfeiting important rights through nonrepresentation. (Ibid.)

Plaintiff, DSC41, LLC, is ordered to obtain new counsel, and file evidence thereof with the court within 30 days from the notice. (CLD Constr., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1150 [“[T]he court retains authority to dismiss an action if an unrepresented corporation does not obtain counsel within reasonable time.”].)

The Court will sign the proposed order and delete the next scheduled hearing date set forth in paragraph 7(a) which is listed as “May 29, 2026, 9:00 AM, Dept. C34 of the above-entitled court,” as well as the trial date set forth in paragraph 9(b) which is listed as “July 20, 2026, 9:00 AM, Dept. C34 of the above-entitled court.”