Court Of Appeal Reversed, But On A 2-1 Vote.
In one of our likely last posts for 2017, we enter into the area of ethics as far as disqualification of an attorney in an action relating to a CCP § 998 offer.
Miralda v. Heng Sheng, Inc., Case No B282158 (2d Dist., Div. 1 Dec. 29, 2017) (unpublished) involved a situation where a former employee sued her ex-employer for wage/hour and unfair business practices violations. After some interesting email exchanges about employee’s immigration status, employee served a 998 offer for $45,000, with employer returning it but interlineating it to accept the offer after changing the $45,000 number to $4,500. Of course, plaintiff former employee’s counsel balked and filed a motion to disqualify employer’s counsel based on the “fraudulent” section 998 conduct. The trial judge granted the disqualification, based on ethical violations by employer’s counsel.
The disqualification was reversed in a 2-1 decision. The majority found that plaintiff suffered no cognizable harm based on employer attorney’s conduct, meaning that no disqualification was in order. Presiding Justice Rothschild authored the majority decision. However, in dissent, Justice Chaney found no abuse of discretion because employer counsel’s conduct undermined and would continue to undermine the judicial process in her opinion.