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Fox Hollow of Turlock v. Richard Sinclair

June 24, 2011


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


Defendant Richard Sinclair filed the this Motion to Disqualify John Dunn, D. Greg Durbin, Daniel Cho and the law firm of McCormick, Barstow, Sheppard, Wayte & Carruth, as counsel for Plaintiffs CEMQ, Andrew Katakis and Fox Hollow of Turlock Owners' Association on May 25, 2011. Pursuant to Local Rule 230(g), the Court deemed the matter suitable for decision without oral argument.


As is relevant to this motion, Mr. Sinclair presented an almost identical motion to this Court in 2005. Mr. Sinclair moved to disqualify Timothy Ryan, counsel for Plaintiffs at the time, and presented arguments almost identical to those he presents now.

The Court denied Mr. Sinclair's first motion on May 24, 2005. Mr. Sinclair presented the same two arguments he presents to the Court now: (1) that Mr. Ryan, who Mr. Sinclair had recently attempted to name as a Doe Defendant, was a material witness and would be called totestify in the state court case; and (2) that Mr. Ryan was representing adverse interests without consent.

As to his first argument, the Court found as follows:

Here, Ryan explains in his declaration that upon receiving service of Defendants' doe amendment naming him as a Doe defendant, he drafted a letter to his clients explaining that Mr. Sinclair claims that Ryan is a material witness and will be called to testify at trial. Declaration of Timothy Ryan ("Ryan Dec."), ¶ 6. He informed the clients that the matter could be impacted by his potential dual role in any eventual trial, and advised his clients to seek the opinion of another attorney to evaluate their options. Ryan Dec., ¶ 6. After a reasonable opportunity to seek the advice of outside counsel, Ryan's clients asked him to remain as counsel of record. Ryan Dec., ¶ 7. Ryan contends that this letter is protected by the attorney-client privilege. Ryan Dec., ¶ 7.

As Ryan obtained his clients' informed, written consent, the test becomes whether there is a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process. Plaintiffs argue, and this Court agrees, that Defendants' argument that they were former clients of Ryan and will somehow suffer if Ryan continues his representation of Plaintiffs is baseless. This will be discussed in more detail below.

Nor have Defendants demonstrated any injury to the integrity of the judicial process. Prior to ordering disqualification of counsel based on the opposing party's intent to call counsel as a witness, the court must determine whether counsel's testimony is genuinely needed. Reynolds v. Superior Court, 177 Cal.App.3d 1021, 1027 (1986). Defendants have provided little more than vague, generalized areas in which Ryan may be called to testify. This is insufficient to allow the Court to determine whether his testimony is genuinely needed.

The Court also rejected Mr. Sinclair's contention that Mr. Ryan represented adverse interests:

Defendants argument is flawed on a very basic level- Ryan's representation of the Association, alone, does not make any of the Defendants, who may have been past members of the Association or subject to its regulations, "clients." Pursuant to Rule 3-600(A), an attorney for an organization must treat the organization itself as the client and may also represent the organization's directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 3-310. Ryan contends that he has never represented any Defendants in any capacity, has been defending Plaintiffs against Defendants' claims for six years, and has never talked to Defendants, except for exchanging pleasantries with Sinclair after hearings. Ryan further contends that Defendants have never provided him with confidential information, nor can it be said that any Defendant was under the belief that Ryan was representing their interests at any time, given that Ryan has been defending suits by Defendants since September 2000.

The case law cited by Defendants does not further their position. Most of the cases cited discuss dual representation of a partnership and a partner, which of course involves different concerns and interests than an organization such as the Association. The Association cannot be analogized to a partnership, or even a corporation. In other words, there is no basis for finding that any of the Defendants are, or were, clients of Mr. Ryan.

Based on Mr. Sinclair's motion to disqualify and his attempt to name Mr. Ryan as a Doe Defendant, Plaintiffs filed a motion for Rule 11 sanctions on April 25, 2005. On June 2, 2005, the Court granted sanctions in the amount of $4,725.00, finding:

Sanctions are proper for Defendants' Doe Amendment and Defendants' Motion to Disqualify Ryan. That the procedurally improper Doe Amendment and the Motion to Disqualify, which was based in part on Ryan's alleged new status as a defendant, were filed on the same day is suggestive of the questionable motive behind the pleadings. It is obvious that this action and the involved parties are quite contentious, and the timing of these pleadings illustrates the heated nature of this action. Given this background, the Doe Amendment and the related Motion to Disqualify appear to be frivolous and brought for an improper purpose. Insofar as the Motion to Disqualify also alleges a conflict of ...

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