“C.A. Affirms Denial of Disqualification of Century City Firm” —
- “Opinion Says No Conflict in Representing Both Supervisory, Non-Supervisory Employees in Wage Class Action Despite Tension With Supervisors Over Challenged Policies, Reporting of Attorney to State Bar”
- “Div. Three of the First District Court of Appeal has held yesterday that there is no conflict of interest for a law firm to concurrently represent both supervisory and non-supervisory class members in a wage-and-hour class action despite tension between some attorneys and supervisors.”
- “That tension was spawned by intense deposition questioning of supervisors over the challenged practices and the reporting by a supervisor of one of the firm’s lawyers to the State Bar.”
- “For disqualification, the court said, the ‘salient question’ is whether the concurrently represented clients have directly adverse interests and not whether some have differing opinions about counsel’s legal strategies, theories, and competence. Surviving the disqualification motion was the Century City firm of Capstone Law APC.”
- “In November 2022, Alameda Superior Court Judge Michael M. Markman granted Mendoza’s motion to certify a class of all nonexempt, hourly employees of the silicon parts manufacturer for the four years leading up to the filing of the complaint. Markman also certified six subclasses, including one relating to meal periods.”
- “At issue for the meal-period subclass was a written policy requiring that employees take their first break within six hours of their start time, which was inconsistent with well-established law mandating meal breaks within the first five hours.”
- “Markman rejected WCQ’s contention during the class certification hearings that there was a conflict in having the same lawyers represent the nonexempt supervisors as they ‘created and enforced break schedules,’ finding that there was no evidence that they played any role in setting policy.”
- “In April 2024, WCQ moved to disqualify Capstone, providing evidence that certain supervisory class members were opposed to the lawsuit and that Capstone attorney Daniel Jonathan had ‘viciously’ cross-examined them. The supporting evidence included a handwritten letter by supervisory employee Virgilio Presa opining that ‘[t]he case is a lie’ and expressing concerns about how the deposition had been handled.”
- “Markman denied the motion, saying that even if certain class members contradicted Mendoza’s allegations, ‘this conflict in evidence does not give rise to a disqualifying conflict between class members and class counsel,’ as certification was based upon written policies and statistical evidence. The judge also ruled that WCG lacked standing and expressed concern that the motion was being ‘used to gain tactical advantage.'”
“Acting Presiding Justice Carin T. Fujisaki wrote the unpublished opinion, filed Tuesday, affirming the denial. Justice Victor Rodríguez and Justice Gordon B. Burns of Div. Five, sitting by assignment, joined in the opinion. Fujisaki noted that ‘[t]he challenge here is to representation by counsel that is concurrent, as opposed to successive’ and said that the primary duty implicated is one of loyalty. She further pointed out that courts must be skeptical of disqualification motions brought by opposing parties.” - “‘That the class consists of nonexempt employees at different levels of authority does not, by itself, signal that Capstone’s loyalty is divided. In this regard, we observe federal courts have held that class counsel is not impermissibly conflicted due to the mere fact that ‘the class cuts across levels of authority in a company, with some class members supervising other class members.’….Like the federal courts, we decline to recognize a per se rule against including employees at different levels of an employment hierarchy in the same class.'”
- Read the decision: Mendoza v. West Coast Quartz Corporation, A170409
- “In a probate proceeding, Richard Feigen’s children allege that his will offered for probate, which was prepared by Zabel and Schulte Roth & Zabel, was the product of undue influence and fraud by Mr. Feigen’s third wife.”
- “Discovery produced by Feigen’s surviving spouse showed that while Feigen was alive, the firm was in direct communication with his third wife, who the firm did not represent at the time, about decedent’s estate plan. It was also revealed that, before decedent died, firm name partner William Zabel made additions and deletions to a physician’s letter concerning decedent’s mental capacity, anticipating that such a letter would be used by decedent’s spouse in a future probate contest.”
- “Westchester County Surrogate Brandon Sall disqualified Zabel as counsel for the executors, finding his testimony will be necessary on the issue of undue influence and likely prejudicial to his own clients. Sall also found that the entire law firm of Schulte Roth should be disqualified by imputation, effective at the time of trial.”