On 02/14/2017 LENNY K DYKSTRA filed a Contract - Professional Negligence lawsuit against BOUCER LLP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DYKSTRA LENNY K.
BOUCHER RAYMOND P.
BUSH BRIAN M.
DOES 1 TO 50
LOS ANGELES COUNTY SHERIFF'S DEPARTMENT
PIERCE JOHN MARK
COLE JONATHAN B
NELSON HENRY PATRICK
2/4/2020: Notice - NOTICE MOTION FOR RELIEF FROM UNDERTAKING PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 1030; MEMO P&A MCDONOUGH DECL.
5/29/2019: Declaration - DECLARATION OF JOSHUA C. WILLIAMS RE PRE FINAL STATUS CONFERENCE REPORT
5/29/2019: Reply - REPLY DEFENDANTS' REPLY TO PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. 3; MEMORANDUM OF POINTS AND AUTHORITIES
5/30/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
7/26/2019: Opposition - OPPOSITION TO PLAINTIFF'S MOTION TO ENTER JUDGMENT FOR PLAINTIFF AS TO LIABILITY AS A SANCTION FOR PERJURY AND FRAUD ON THE COURT
8/1/2019: Writ of Execution - WRIT OF EXECUTION (SACRAMENTO)
8/15/2019: Witness List - WITNESS LIST DEFENDANTS' SECOND AMENDED WITNESS LIST
8/15/2019: Witness List - WITNESS LIST DEFENDANTS' FIRST AMENDED WITNESS LIST
10/9/2019: Opposition - OPPOSITION TO MIL NO. 3
10/21/2019: Trial Brief
11/18/2019: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE LONG CAUSE TRIAL DETERMINATION)
12/19/2017: ORDER SUSTAINING DEFENDANTS' DEMURRER TO PLAINTIFF'S SECOND CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY WITHOUT LEAVE TO AMEND
3/22/2018: Minute Order -
7/31/2018: DEFENDANTS HERMEZ MORENO AND BRIAN M. BUSH?S SEPARATE STATEMENT OF QUESTIONS AND RESPONSES IN DISPUTE FIELD IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE
11/7/2018: Declaration - Declaration Of Robert R. Shiri In Opposition To Defendants Motions To Compel Further Response To Form Interrogatories
3/5/2019: Substitution of Attorney
4/24/2019: Declaration - DECLARATION OF ERICK KUYLMAN IN SUPPORT OF PLAINTIFF LENNY K. DYKSTRAS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT
5/3/2019: Notice of Lodging - NOTICE OF LODGING COMPENDIUM OF EXHIBITS VOL. III OF III
Hearing07/21/2020 at 08:30 AM in Department 16 at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing07/13/2020 at 08:30 AM in Department 16 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing04/17/2020 at 08:30 AM in Department 16 at 312 North Spring Street, Los Angeles, CA 90012; Post-Mediation Status ConferenceRead MoreRead Less
Hearing04/15/2020 at 16:30 PM in Department 16 at 312 North Spring Street, Los Angeles, CA 90012; Non-Appearance Case ReviewRead MoreRead Less
Hearing03/13/2020 at 08:30 AM in Department 16 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion in Limine filed by Plaintiff and DefendantsRead MoreRead Less
Hearing02/28/2020 at 08:30 AM in Department 16 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Order filed by Plaintiff's for Relief from Undertaking Pursuant to California Code of Civil Procedure Section 1030Read MoreRead Less
DocketObjection (Objection to New Evidence); Filed by Boucher, LLP (Defendant); Raymond P. Boucher (Defendant); Brian M. Bush (Defendant) et al.Read MoreRead Less
Docketat 08:30 AM in Department 16, J. Stephen Czuleger, Presiding; Hearing on Motion for Order (To Lift Undertaking of Bond) - Not Held - Rescheduled by PartyRead MoreRead Less
DocketReply (in Support of Plaintiff's Motion for Relief from Undertaking; Declaration of Lenny Dykstra); Filed by Lenny K. Dykstra (Plaintiff)Read MoreRead Less
Docketat 4:30 PM in Department 16, J. Stephen Czuleger, Presiding; Non-Appearance Case Review (1) New Statement of Case, 2) New Exhibit List & 3) List of Real MILs due)Read MoreRead Less
DocketREQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE BOUCHER DEFENDANTS' DEMURRER AND MOTION TO STRIKE PLAINTIFF'S COMPLAINTRead MoreRead Less
DocketDECLARATION OF AMANDA M. MOGHADDAM PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41 FOR AUTOMATIC 3O-DAY EXTENSION TO RESPOND TO COMPLAINTRead MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketCOMPLAINT FOR: 1. PROFESSIONAL NEGLIGENCE; ETCRead MoreRead Less
DocketComplaint; Filed by Lenny K. Dykstra (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC650381 Hearing Date: October 25, 2019 Dept: 24
Defendants Boucher, LLP; Raymond P. Boucher; Hermez Moreno; and Brian Bush’s motion to disqualify Plaintiff Lenny K. Dystra’s attorney of record is DENIED.
This legal malpractice action arises out of Plaintiff Lenny K. Dykstra’s allegations that his former attorneys, Defendants Boucher, LLP; Raymond P. Boucher; Hermez Moreno; and Brian Bush, failed to properly prosecute his civil rights action brought under 42 U.S.C. § 1983 against the County of Los Angeles Sheriff’s Department and numerous individual deputies, Lenny K. Dykstra v. County of Los Angeles, et al., LASC Case No. BC541436, involving two alleged beatings of Plaintiff that occurred inside the County Jail on or about April 5 and April 6, 2012 (the “Underlying Action”).
Plaintiff in pro per commenced this action against Defendants on February 14, 2017. On July 24, 2017, Plaintiff, represented by counsel, filed the operative second amended complaint (“SAC”) alleging two causes of action for negligence (legal malpractice) and breach of fiduciary duty. On November 21, 2017, the Court sustained Defendants’ demurrer to the breach of fiduciary duty claim without leave to amend. Defendants filed an answer to the SAC on December 1, 2017. Trial is set for October 28, 2019.
On October 4, 2019, Defendants filed the instant motion to disqualify Pierce Bainbridge Beck Price & Hecht LLP (“PBBPH”) or in the alternative Thomas D. Warren (“Warren”) based on an alleged violation of California Rules of Professional Conduct (“CRPC”), Rule 4.2(a) (previously Rule 2-100). On October 15, 2019, Plaintiff filed an opposition. On October 18, 2019, Defendants filed a reply.
Disqualification is a drastic measure that is only justified where the misconduct will have a continuing effect on judicial proceedings. (Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1711; Baugh v. Garl (2006) 137 Cal.App.4th 737, 744.) The State Bar Rules of Professional Conduct govern attorney discipline not standards for attorney disqualification in courts; however, courts may look to the Rules of Professional Conduct for guidance regarding attorney disqualification. (Great Lakes Const., Inc. v. Burma (2010) 186 Cal.App.4th 1347.)
Defendants’ objections to the Warren declaration are OVERRULED. The mediation privilege only precludes what was communicated—not the fact that communications occurred. (See Evid. Code § 1119.) The statements are not offered to prove the truth of the matter asserted, rather they are relevant to show that statements were said.
Likewise, Defendants’ objections to the Pansky declaration are OVERRULED. The various other objections interposed only go to the weight of Pansky’s opinion, not its admissibility.
Defendants’ objections to the Terzian declaration are OVERRULED. The statements are not hearsay because they are not offered for the truth of the matters stated (e.g. that Dykstra was on Howard Stern or any comment on Dykstra’s book).
Defendants accuse Warren of a direct, ex parte communication with Boucher in violation of Rule 4.2(a). This rule states in relevant part: “In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person* the lawyer knows* to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.”
Defendants’ evidence undoubtably establishes such a communication. By way of background, the parties have been in settlement negotiations. On September 25, 2019, Warren emailed Defendants' insurer to invite a settlement discussion. (Williams Decl., ¶ 2; Ex. 1.) The insurer responded. (Ibid.) Following this email exchange, Warren emailed Defendants’ counsel the following message, CC’ing Boucher: “Subject: Boucher/Dykstra
Frank/Jon – looking forward to trial in this matter. To that end, I would like to speak to Ray [Boucher] in a 408 capacity unless you have any objection. Thx Tom [Warren]”
The 408 term appears to be a reference to Fed. Rules Evid., rule 408, which makes inadmissible communications related to settlement. The Court takes this to mean that Warren wanted to discuss settlement with Boucher directly.
The email, even if a CC, was a direct communication about the subject of the representation. Plaintiff contends that there was not communication regarding the subject of the litigation and that it did not even include the name Dykstra. First, it did contain the name Dykstra, not that it matters. Second, the rule is more expansive than Plaintiff states. The rule does not forbid only communications regarding the subject matter of the litigation, but forbids a wider scope of communications pertaining to the subject matter of the representation. Certainly, communications regarding settlement—one of the ultimate purposes of the representation—pertain to the subject of the representation. Thus, Warren’s email requesting that Boucher speak with him directly regarding settlement would be a direct communication regarding the subject of the representation.
Plaintiff argues that counsel had implied consent to speak with Boucher. The Court agrees that implied consent could apply to rule 4.2. The plain language of the rule sets out “consent” which could reasonably be construed as actual or implied consent. Ethics opinions on the former rules recognize implied consent as a proper basis for direct communications with opposing clients based on the facts and circumstances. (CA Eth. Op. 2011-181.) Such facts and circumstances may include the following: 1) whether the communication is within the presence of the other attorney; 2) prior course of conduct; 3) the nature of the matter; 4) how the communication is initiated and by whom; 5) the formality of the communication; 6) the extent to which the communication might interfere with the attorney-client relationship; 7) whether there exists a common interest or joint defense privilege between the parties; 8) whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and 9) the instructions of the represented party's attorney. (Ibid.) Examining Plaintiff’s evidence and the context of the email, the Court does not find any implied consent.
The Court does not see Warren’s communication as “within the presence of the other attorney.” The reason that this factor is significant towards implied consent is the ability of the opposing attorney to object or stop the communication while it is happening. The presence of the other attorney gives them the opportunity to correct errors in such communication and otherwise protect the attorney-client relationship. (See Cal. State Bar Formal Opn. No. 1993-131.) Where the opposing attorney fails to stop or cease the continued communication, their silence could reasonably be inferred as consent for continuing the communication. However, in the context of an email, an opposing counsel does not have the ability to stop the email from reaching his client. This was the case here. Further, the ethics opinion explicit states that “copying the other lawyer on correspondence is not necessarily sufficient—the rule requires consent.” (CA Eth. Op. 2011-181 citing AIU Ins. Co. v. The Robert Plan Corp. (2007) 17 Misc.3d 1104(A), Niesig v. Team I (1990) 76 N.Y.2d 363 [concluding that sending a letter to the directors, even with a copy sent to the company's counsel, violated New York DR 7-104]; ABA Informal Opn. No. 1348 [offering party's lawyer not permitted to send opposing party carbon copy of settlement offer sent to opposing party's lawyer].) Thus, this factor does not weigh towards consent.
The discussion on the previous factor logically extends into the factor regarding whether Defense Counsel had a reasonable opportunity to counsel Boucher with regard to the communication contemporaneously or immediately following the email. Given the nature of the email, Defense counsel did have that opportunity. Moreover, Boucher himself is an attorney who would be aware of the impropriety of direct communications. Boucher, and any reasonable attorney, should be rightfully suspicious of such communications. This somewhat ameliorates the effect of the improper communication but does not weigh heavily towards finding consent.
Plaintiff insists that the prior course of conduct creates consent here. The Court does not agree. Plaintiff argues that there was a tenor of openness and free communication between the parties based on specific examples. Plaintiff cites two general categories of communications: 1) Defendants’ counsel allowed Pierce Bainbridge to communicate directly with Lawyers Mutual, and 2) Defendants’ counsel communicated directly with Mr. Dykstra. First, this “tit for tat” argument is unpersuasive. Notably absent is any evidence that Plaintiff’s counsel was ever allowed to speak with Boucher directly. Simply because Plaintiff’s counsel may have allowed communications with Dykstra does not mean that Defense Counsel allowed communications with Boucher. It would be different if Warren had already established direct communications with Boucher that was permitted by Defense Counsel, but no evidence shows such communications. Further, as Defendants point out, Dykstra was in pro per at points during the litigation, so communications during this period would not be improper. Moreover, Plaintiff does not suggest that the communications between himself and opposing counsel related to the subject matter of the representation, as opposed to small talk. (Terzian Decl., ¶¶ 2-9 [discussing communications between Feenberg and Dykstra, e.g. discussing Dykstra’s media appearance and book]; Supp. Feenberg Decl., ¶¶ 4-5.) Second, Lawyers Mutual is Defendants’ malpractice insurance. The record does not suggest that Defendants’ counsel represents Lawyers Mutual; instead they appear to be in a tripartite relationship without representation. Defendants’ counsel would have no ability or right to stop Plaintiff’s counsel from communicating with Lawyers Mutual. The settlement negotiations just show that Lawyers Mutual consented to a communication with themselves, not that Defendants’ counsel consented to a communication with Boucher. This factor does not weigh towards consent.
How the communication was initiated and by whom does not weigh towards consent. Warren indisputably initiated the communication. Plaintiff argues that Lawyers Mutual initiated the emails. The evidence does not establish this. Warren did communicate with Lawyers Mutual regarding settlement prior to the subject email. However, this was not a “follow up email” since Lawyers Mutual was not even included on Warren’s email to Boucher and his counsel. The email did not even reference the insurance settlement negotiations. Directly emailing Boucher is not a “logical extension” of the settlement negotiations between Warren and Lawyers Mutual. Warren did initiate the communication—not Lawyers Mutual, and certainly not Defendants or their counsel.
The communication is somewhat informal, though this does not strongly favor consent. The ethics opinion on the subject notes: “For example, whereas under the proper circumstances, a “Reply to All” email communication might be acceptable, copying the represented party in a demand letter to the other attorney would be difficult to justify.” (CA Eth. Op. 2011-181.) The present issue is somewhere between the two examples. As discussed, Warren initiated this communication through intentionally adding Boucher to the email. This was not the common “reply all” email—the scourge of corporate employees everywhere. However, it was not a formal demand letter; it was an attempt to initiate settlement negotiations without a specific or formal demand. This weighs slightly towards consent, but not substantially.
Defendants note several ways this communication might interfere with the attorney-client relationship. A direct email about settlement communications may lead a client to suspect that their attorneys are not being forthright in communicating settlements. In effect, this type of email suggests, “let’s cut out the middle-man and settle this between us.” This undermines the attorney-client relationship by potentially influencing the client to question their attorney, and whether their attorney has their best interests at heart in refusing settlement. Thus, this email might drive wedge between opposing counsel and their client. However, the nature of the email would not necessarily elicit any confidential information and did not explicitly try to persuade Boucher to form that opinion. Notably, it did not elicit such a response. Boucher himself is an attorney logically understands the ethical obligations that his attorneys have to communicate. That said, this factor is about the potential for interference with the attorney client relationship and influencing opposing counsel’s credibility with their client. Rule 4.2 was put in place to eliminate that risk. Therefore, this factor does not weigh towards finding consent.
As to the remaining factors, the adversarial nature of the matter does not weigh towards consent. This is a bitterly fought legal malpractice suit. There is also no common interest or joint defense between the parties. Conversely, there is no evidence that Defense Counsel had explicitly forbid communications with Boucher; though they obviously were not required to given that rule 4.2 forbids such communications.
Given the above factors and the evidence before the Court, there was no consent, implied or otherwise. Warren’s communication violated rule 4.2. The next question is whether disqualification is the appropriate remedy for this violation.
Defendants argue that disqualification is the only appropriate remedy in these circumstances, and that this extends to the entire firm.
The Court must first note the purpose of disqualification. When attorneys violate the Rules of Professional Conduct, the court can use its inherent authority "in the furtherance of justice" to disqualify them. (CCP § 128(a)(5); People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) “At its core, a motion to disqualify ‘involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.’ ” (M'Guinness v. Johnson (2015) 243 Cal.App.4th 602, 613.) “[T]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar." (Wu v. O'Gara Coach Company, LLC (2019) 251 Cal.Rptr.3d 573, 581 [internal quotations omitted].) “The important right to counsel of one's choice must yield to ethical considerations that affect the fundamental principles of our judicial process.” (Ibid.) "Disqualification is proper to assure fairness in judicial proceedings-its point is not to punish ethical transgressions, but to prevent continuing, detrimental effects upon the proceedings." (Jackson v. Ingersoll-Rand Co. (1996) 42 Cal.App.4th 1163, 1166 [emphasis added].) "[W]hat the court must do is focus on identifying an appropriate remedy for whatever improper effect the attorney's misconduct may have had in the case before it." (San Francisco Unified School Dist. ex rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th 1212, 1231.)
The purpose of rule 4.2, while alluded to above, must also be explicitly noted. The so-called no contact rule "is necessary to the preservation of the attorney-client relationship and the proper functioning of the administration of justice." (Mitton v. State Bar of Cal. (1969) 71 Cal.2d 525, 534.) "It shields the opposing party not only from an attorney's approaches which are intentionally improper, but, in addition, from approaches which are well intended but misguided." (Abeles v. State Bar (1973) 9 Cal.3d 603, 609.)
In Chronometrics, the Court of Appeal upheld the trial court’s disqualification of an attorney who made phone calls to represented party. The trial court found that the cross-complainant's attorney had communicated with a cross-defendant respecting a subject of controversy, knowing that the cross-defendant was represented by counsel, without the consent of such counsel, in violation of a prior iteration of rule 4.2. (Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 603.) The court held it was not an abuse of the trial court's discretion to refuse to permit the attorney from continuing on the case, since he wrongfully obtained information and could use that information directly in the proceedings before the court. (Id. at 607-608.) However, the court modified the order to provide for the disqualification of the attorney personally, rather than the law firm. (Id. at 608.) The court held and emphasized that if the misconduct of an attorney which is urged as a ground for disqualification will have a “continuing effect” on the judicial proceedings which are before the court, the trial court is justified in refusing to permit the lawyer to participate in such proceedings. (Id. at 607 [emphasis added].) In these circumstances, disqualification of the entire firm was inappropriate because it had no purpose but a punitive one, and such purpose should be accomplished by disciplinary proceedings rather than disqualification of the law firm. (Id. at 608.)
Caselaw is still in accord with Chronometrics. (See Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116 5 [superseded on other grounds regarding corporate communications; affirming order disqualifying attorney for having conversation with represented party and obtaining confidential information, but reversing insofar as the trial court disqualified the law firm]; see also Baugh, supra, 137 Cal.App.4th at 744 [“The purpose of disqualification is not to punish a transgression of professional ethics. Disqualification is only justified where the misconduct will have a ‘continuing effect’ on judicial proceedings.”].) “An attorney's violation of [the no communication rule] can properly serve as the basis for that attorney's disqualification from an action only ‘[i]f the ... misconduct which is urged as a ground for disqualification will have a continuing effect on the judicial proceedings which are before the court, ... If, on the other hand, the court's purpose is to punish a transgression which has no substantial continuing effect on the judicial proceedings to occur in the future, neither the court's inherent power to control its proceedings nor Code of Civil Procedure section 128 can be stretched to support disqualification.’ ” (Bell v. 20th Century Ins. Co. (1989) 212 Cal.App.3d 194, 200 [citing Chronometrics].) Thus, the body of law cited by both parties indicates a requirement for a continuing effect of the rule violation before disqualification is appropriate.
Here, the Court cannot identify a continuing effect of Warren’s email that would be remedied by disqualification. Defendants argue purely theoretical effects of the email. Defendants argue that Warren's email was designed to persuade Boucher to reach the conclusion that his attorneys were not acting in his best interest, which would then lead Boucher to question his attorneys’ judgment regarding settlement and dupe him into settling. This risk exists, but there is no evidence before this Court that this result occurred. Otherwise, Defendants simply conclude that there is a “taint” without explaining as to how Warren’s communications prejudiced or impacted the case at all. While Warren’s email may have been designed to elicit this effect, the subjective intent of Warren does not appear important to the analysis. No matter how badly Warren wanted to interfere with the attorney client relationship, it simply does not matter unless the that effect occurred. Disqualification would do nothing to remedy any theoretical effect.
Instead, disqualification in this instance would be purely punitive. The Court does not see how disqualification could correct the taint of the communication, if any. The body of law presented by both parties present a common theme: the attorney who violated the no communication rule gained some appreciable advantage, and disqualification was used to prevent that effect. (See e.g. Chronometrics, supra, 110 Cal.App.3d at 604-607.) Here, no such advantage was gained.
What “continuing effect” was caused here? According to the record: none. Obviously, Warren’s conduct was improper and potentially warrants punishment. However, disqualification should not be used as punishment and cannot remedy theoretical continuing effects. This is simply the purview of the State Bar, rather than the trial court.
Accordingly, Defendant’s motion is DENIED.
Moving party is ordered to give notice.
ORDER RE: LONG CAUSE BINDERS
The Court has reviewed the Second Amended Joint Witness list filed October 22, 2019, which provides a time estimate for all witness testimony (lowest estimate) of 192 hours.
If this new time estimate for the witness testimony is correct, the entire trial will last over 20 days and therefore this trial will be submitted for consideration for a long cause trial courtroom. LASC, Rule 2.7(b) (E). By the Court’s calculation, the witness testimony is estimated to last 38 days. The Court will advance the Final Status Conference/MIL date of October 25, 2019 and continue it to the trial date of October 28, 2019 at 8:30 a.m.
Accordingly, the parties are ordered to comply with the Court’s Long Cause Trial Package Guidelines (forms LACIV 217 and 216) available on the Court’s website at lacourt.org. See link below.
The parties are ordered to bring to Department 24 the completed long cause trial binders to the final status conference scheduled for October 28, 2019. The Supervising Judge of the Civil Division will review the binders and determine if this case qualifies for a long cause trial courtroom.
Parties are to carefully review the guidelines and prepare the trial binders in strict compliance with said guidelines.
Plaintiff to give notice.