Barajas Centeno v. City of Carlsbad et al, No. 3:2019cv02098 - Document 208 (S.D. Cal. 2022)
Court Description: Order Denying Defendant Jordan Walker's Renewed Motion for an Order Disqualifying Genaro Lara as Plaintiff's Counsel (ECF No. 190 ). Furthermore, the Court finds no basis to award any of the relief prayed for in Plaintiff's opposition briefing, ECF No. 192 , and all such relief is HEREBY DENIED. Signed by Judge Gonzalo P. Curiel on 4/28/22. (jmo)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE LUIS BARAJAS CENTENO, Plaintiff, 12 13 v. 14 CITY OF CARLSBAD; JORDAN WALKER; and DOES 1 through 10, 15 Case No.: 19-CV-2098-GPC ORDER DENYING DEFENDANT JORDAN WALKER’S RENEWED MOTION FOR AN ORDER DISQUALIFYING GENARO LARA AS PLAINTIFF’S COUNSEL Defendants. 16 [ECF No. 190] 17 18 On March 1, 2022, Defendant Jordan Walker filed a renewed motion for an order 19 disqualifying Genaro Lara as Plaintiff’s counsel. ECF No. 190. The parties have fully 20 briefed the matter. ECF Nos. 192, 199. The Court held a hearing on this matter on April 21 20, 2022. 22 23 24 25 26 27 28 1 19-CV-2098-GPC 1 I. BACKGROUND On May 17, 2021, Defendants the City of Carlsbad (“the City”), Jordan Walker 2 3 (“Defendant Walker” or “Defendant”), and James Gallivan (collectively, “Defendants”)1 4 filed their first motion for an order disqualifying Genaro Lara (“Mr. Lara”) as Plaintiff’s 5 counsel, restraining Mr. Lara from communicating with Defendants, and awarding 6 sanctions. The bases for this initial disqualification motion were similar to the grounds on 7 which Defendant brings the pending motion before this Court: that Plaintiff’s counsel, 8 Genaro Lara, continually insulted defense counsel Daniel Modafferi, threatened Mr. 9 Modafferi with physical violence, fabricated allegations that Mr. Modafferi committed 10 misconduct during the course of the litigation, improperly contacted the City in 11 contravention of California Rule of Professional Conduct (“Rule”) 4.2, threatened to 12 pursue criminal charges in order to obtain an advantage in the instant civil litigation in 13 violation of Rule 3.10, and filed a separate civil lawsuit for the purpose of harassing the 14 City and Mr. Modafferi. ECF No. 128-1 at 4-9. Concurrently, the issue of Mr. Lara’s misconduct arose before Magistrate Judge 15 16 Daniel E. Butcher. On July 2, 2021, Magistrate Judge Butcher issued an Order imposing 17 sanctions on Mr. Lara following a hearing on the Magistrate Judge’s Order to Show 18 Cause. ECF No. 149. The hearing and Order concerned insulting comments written by 19 Mr. Lara to and about Mr. Modafferi in two letters, dated September 17 and October 20, 20 2020. Id. at 5. In the letters, Mr. Lara impliedly threatened Mr. Modafferi with physical 21 violence, called him a “low class thug,” a “disgrace to the human race,” and “an 22 unmitigated liar and a cheat,” accused Mr. Modafferi of tampering with evidence, and 23 stated that Mr. Modafferi’s “reckless, base, ignoble conduct is manifest evidence of the 24 25 26 27 28 11 Since the time of this motion, the City of Carlsbad and James Gallivan have been granted summary judgment, leaving Jordan Walker the only moving party before this Court. 2 19-CV-2098-GPC 1 low class vulgar, crass, nature of [his] origin . . .” Id. Magistrate Judge Butcher 2 sanctioned Mr. Lara and ordered him to pay $1000 ($500 per letter) to Mr. Modafferi. Id. 3 at 14. The Magistrate Judge also referred Mr. Lara to the District’s Standing Committee 4 on Discipline to investigate Mr. Lara’s fitness to practice law in the District and to 5 determine whether additional discipline was appropriate, and further ordered Mr. Lara to 6 report the sanctions imposed therein to the California State Bar by August 2, 2021. Id. 7 On February 18, 2022, District Judge M. James Lorenz issued an Order denying 8 without prejudice Defendant’s first motion to disqualify Plaintiff’s counsel, ECF No. 128. 9 ECF No. 186. Judge Lorenz found that Mr. Lara did not violate Rule 4.2 because Mr. 10 Lara sent a letter to the Mayor of Carlsbad, who was not a party to the litigation, rather 11 than to a represented party. Id. at 3. Judge Lorenz also found that Mr. Lara did not violate 12 Rule 3.10 because Mr. Lara did not inform Defendants that he was pursuing a parallel 13 criminal lawsuit, and therefore the lawsuit was not used for the purpose of gaining an 14 advantage in the instant litigation. Id. at 4 (noting that the pursuit of a criminal case 15 parallel to a civil proceeding is often valid and not necessarily prohibited by Rule 3.10). 16 Judge Lorenz also found that the separate civil action, which was dismissed with 17 prejudice on the pleadings, did not warrant disqualifying counsel in the instant action. Id. 18 However, Judge Lorenz did find that Mr. Lara threatened Mr. Modafferi and that Mr. 19 Lara made unprofessional remarks about Mr. Modafferi showing a lack of common 20 decency. Id. at 5. Judge Lorenz also noted that Mr. Lara made disrespectful remarks 21 about the Court, including referring to Magistrate Judge Daniel E. Butcher as “the 22 butcher of [his] civil rights” following the Order to show cause hearing and sanctions 23 Order. Id. 24 Judge Lorenz ultimately denied the first Motion for disqualification based on the 25 “practical realities” of the case: primarily that if Mr. Lara were disqualified, his client, 26 Jose Centeno, would face a gap in representation before counsel could potentially be 27 28 3 19-CV-2098-GPC 1 appointed from the District’s Pro Bono Panel—and that this would be a heavy blow in a 2 case “primed for trial.” Judge Lorenz also noted that there would be significant logistical 3 issues “due to Centeno’s residence in a vehicle somewhere in Carlsbad, California, and 4 limited English proficiency . . . [and] any change in counsel would further delay a final 5 resolution in this action.” Id. at 6. In denying the motion, however, Judge Lorenz 6 explicitly pointed out that “[t]his order does not prevent Defendants from raising a new 7 motion later in the proceedings.” Id. Judge Lorenz also admonished Mr. Lara “to refrain 8 from engaging in any more unprofessional or unethical conduct [because] Mr. Lara’s 9 statements about opposing counsel are indefensible and have no place anywhere.” Id. at 10 7. Judge Lorenz closed the Order by emphasizing that “[t]he Court has an arsenal of 11 sanctions it may impose for any more unprofessional or unethical conduct” and warning 12 Mr. Lara to look closely at Civil Local Rule 2.1 (setting forth the District’s Code of 13 Conduct) before making any statements or writing any letters. Id. 14 The underlying action was reassigned to this Court on February 23, 2022. ECF No. 15 188. On March 1, 2022, Defendant Walker, the sole remaining defendant in this action, 16 filed a renewed motion to disqualify Mr. Lara as Plaintiff’s counsel. ECF No. 190. 17 Defendant complains that despite Magistrate Judge Butcher’s sanctions Order and Judge 18 Lorenz’s admonition, Mr. Lara’s misconduct has persisted and indeed Mr. Lara “has now 19 been emboldened by the denial of the motion to disqualify.” ECF No. 190-1 at 3. 20 Defendant complains of the following misconduct: 21 First, Mr. Lara sent a letter to Mr. Modafferi’s law partners on February 21, 2022. 22 The letter refers to Magistrate Judge Butcher’s order as a “judicial lynching” and refers to 23 the Standing Committee as “part of the judicial tyranny that has been ordered.” Id. The 24 letter also threatens each of Mr. Modafferi’s law partners with suit for “aiding and 25 abetting” Mr. Modaferri. ECF No. 190-2 at 4-5 (Ex. A to Decl. of Daniel S. Modafferi). 26 27 28 4 19-CV-2098-GPC 1 Second, on February 23, 2022, Mr. Lara filed a declaration with the Court in 2 support of his motion to strike in which he repeats his insults against Mr. Modafferi, 3 including that Mr. Modafferi is “low class,” “vulgar,” “reprehensible,” and a “disgrace to 4 the human race.” ECF No. 187-1 para. 24. Defendant states that Mr. Lara justified the 5 comments as his “personal opinions” and reiterated that his statement about reacting in 6 self-defense, which Judge Lorenz found to be a threat against Mr. Modafferi, was 7 supported by the “law of self defense in the common law of the United States.” Id. The 8 declaration also refers to Magistrate Judge Butcher as a “juror, prosecutor, and 9 executioner” and calls Mr. Modafferi a “miscreant.” Id. para. 28, 29. 10 Finally, Defendant points out that to the extent that Judge Lorenz was concerned 11 that disqualifying Mr. Lara would require Plaintiff to seek new counsel on the eve of 12 trial, that concern is assuaged by the fact that there is no pending date for a pretrial 13 conference, nor is trial scheduled in this matter. ECF No. 190-1 at 5. 14 Plaintiff’s Opposition briefing2 argues that his actions were justified by Mr. 15 Modafferi’s “illegal conduct” and refers to the Magistrate Judge’s Order imposing fines 16 as “draconian and [] motivated in [sic] spite and hatred toward plaintiff’s counsel.” ECF 17 No. 192 at 2-3. Plaintiff contends that Mr. Modafferi was able to “double-dip” because he 18 was paid by the City for his work on the case, but also “convince[ed] the magistrate to 19 impose money from plaintiff counsel’s personal funds.” Id. Plaintiff also speculates that 20 “[a]nother possible motive for the magistrate’s bad faith rulings against plaintiff’s 21 22 23 24 25 26 27 28 Much of Plaintiff’s Opposition brief focuses on Modafferi’s alleged misconduct with respect to a deposition, in which Plaintiff’s counsel accuses Modafferi and a court reporter, Lori Turner, of mocking him. Further, Lara accuses Modafferi of witness tampering in obtaining a declaration from Turner that no mocking occurred. This Order deals with the specific issue at hand, disqualification, and since Plaintiff has raised the deposition and tampering issues in a separate motion to strike, the Court will not address these issues herein. Whether or not Turner’s declaration was proper, or whether any mocking occurred during the deposition, have no direct bearing on the issue of Plaintiff’s counsel’s misconduct. 2 5 19-CV-2098-GPC 1 counsel could be that plaintiff moved for the [sic] magistrate to recuse himself, because 2 he did not know the law on how to proceed with the investigation and ruling on motion 3 for sanctions, and did not know the difference between criminal and civil contempt, and 4 the proper rules to be used . . . The magistrate did not respond to queries about his 5 flawed, impermissible, defective prosecution of plaintiff’s counsel.” Id. at 3. Plaintiff 6 insists that he did not violate any rules, threaten anyone, or commit any improper actions. 7 Id. at 5. According to Plaintiff, “[t]he bottom line is that they [the Magistrate Judge and 8 Modafferi] pursued in a coordinated action without statutory jurisdiction and added insult 9 to injury by prohibiting plaintiff’s counsel to subpoena witnesses, to cross-examine 10 witnesses, to know the basis or reasons for the imposition of horrendous illegal fines.” Id. 11 Plaintiff also further accuses the Magistrate Judge of “showing biased [sic] in favor of 12 one side over the other and violating due process rights to present evidence” during the 13 Order to Show Cause hearing by not allowing the service of subpoenas or the 14 presentation of evidence. Id. at 10. Finally, Plaintiff explains that his referral to the 15 Magistrate Judge as the “butcher of my civil and constitutional rights” was “not an 16 exaggeration and it is not used to disrespect [sic] him,” but rather was a “metaphor, a 17 poetic term that expresses my depression, despair, my anguish over an [sic] injustices.” 18 Id. Plaintiff’s Opposition brief ends with a prayer for the following relief: (1) to permit 19 Plaintiff to subpoena Mr. Modafferi to testify about “his multiples instances of perjurious 20 conduct in this case”; (2) to strike the monetary sanctions ordered against Plaintiff’s 21 counsel and for Defendant to return the sanctions payment; (3) to enter default judgment 22 as a sanction in favor of Plaintiff; (4) to declare each member of Mr. Modafferi’s law 23 firm liable as an aider and abettor of Mr. Modafferi’s alleged misconduct; (5) to order the 24 City of Carlsbad to implement a Civilian Review Board to investigate police abuse; and 25 (6) to award attorney’s fees. 26 27 28 6 19-CV-2098-GPC 1 This Court held a hearing on the Motion to Disqualify and admonished Mr. Lara 2 for his statements and conduct, noting the Court’s great concern over Mr. Lara’s 3 unprofessional behavior. In particular, the Court instructed Mr. Lara to focus on the 4 merits of the case and on his representation of his client, rather than devolving into side- 5 issues of a personal nature. Mr. Lara stated that he would “take to heart” the Court’s 6 advice to abstain from making any further disparaging, personal, or improper remarks 7 about opposing counsel or any officer of the court. Hrg. Trans. at 11:17. However, Mr. 8 Lara also opined that the words he used, for which he had been sanctioned, were what he 9 believed to be the “proper adjectives” which were “well-thought . . . [and] fit the 10 situation.” Id. at 5:25-6:1. Mr. Lara also reiterated his belief that Mr. Modafferi should be 11 subject to RICO liability for his purported actions, prompting the Court to question again 12 whether Lara was prepared to represent his client fully and zealously by focusing on the 13 needs and interests of the client, rather than on personal vendettas. 14 II. 15 DISCUSSION The disqualification of counsel because of an ethical violation is a discretionary 16 exercise of the trial court’s inherent powers. Crenshaw v. MONY Life Ins. Co., 318 17 F.Supp.2d 1015, 1020 (S.D. Cal. 2004) (citing United States v. Wunsch, 84 F.3d 1110, 18 1114 (9th Cir. 1996)). However, disqualification is a drastic measure that is strongly 19 disfavored, especially because motions for disqualification are often tactically motivated. 20 Visa U.S.A., Inc. v. First Data Corp., 241 F.Supp.2d 1100, 1104 (N.D. Cal. 2003). 21 Because they carry the potential for abuse, disqualification motions should be subject to 22 “particularly strict judicial scrutiny.” Optyl Eyewear Fashion Int’l Corp. v. Style Cos., 23 760 F.2d 1045, 1050 (9th Cir. 1985). “Even a violation of the California Rules of 24 Professional Conduct does not automatically compel disqualification.” Del Thibodeau v. 25 ADT Security Servs., No. 3:16-cv-2680-GPC-AGS, 2018 WL 2684254, at *2 (S.D. Cal. 26 June 5, 2018) (citing Crenshaw, 318 F.Supp.2d at 1020)). The question, rather, is whether 27 28 7 19-CV-2098-GPC 1 the misconduct of the attorney in question will affect the outcome of the proceedings 2 before the court. Id. (citing Gregori v. Bank of Am., 207 Cal. App. 3d 291, 303 (1989)). 3 “Disqualification is inappropriate simply to punish a dereliction that will likely have no 4 substantial continuing effect on future judicial proceedings; other sanctions such as 5 imposition of attorneys’ fees and costs or reporting misconduct to the State Bar of 6 California is more appropriate in this situation.” Id. In other words, disqualification looks 7 to prevent future disruptive effects on the coming proceedings indicated by an attorney’s 8 conduct, rather than simply to punish past wrongs. “The district court is permitted to 9 resolve disputed factual issues in deciding a motion for disqualification and must make 10 11 findings supported by substantial evidence.” Visa U.S.A., 241 F.Supp.2d at 1104. Based on the parties’ filings and indeed on Plaintiff’s counsel’s own briefing, it 12 appears that Mr. Lara continues to disrespect both opposing counsel and this Court, 13 including accusing the Magistrate Judge of being “draconian” and “motivated in [sic] 14 spite and hatred toward plaintiff’s counsel.” ECF No. 192 at 3. Such accusations are 15 baseless, grounded in reprehensible disrespect for the functions and responsibilities of 16 this Court, and are abhorrent to Mr. Lara’s responsibilities and position as an attorney and 17 officer of the court. The Court reprimands Mr. Lara for this behavior and warns him not 18 to continue further with such intolerable statements, whether “metaphor” or not 19 (including repeating threats of physical self-defense against Mr. Modafferi, calling 20 defense counsel names or insults of any kind, and casting aspersions on the integrity of 21 this Court, including the Magistrate Judge). Any further insulting, degrading, or uncivil 22 statements by Mr. Lara will result in an order removing Mr. Lara as counsel of record. 23 Mr. Lara should take the opportunity this Court extends to review and reflect on Civil 24 Rule 2.1, Professionalism, of the Local Rules of this District. The Court points Mr. Lara 25 to two subsections in particular: 2.1(a)(2) and (3), which require all lawyers practicing in 26 this district to maintain the integrity of our justice system, including by not impugning the 27 28 8 19-CV-2098-GPC 1 integrity of its proceedings, or its members, and which warn lawyers to conduct 2 themselves amicably, professionally, and not personally with opposing counsel. Mr. 3 Lara’s statements to and about defense counsel are grave violations of these standards, 4 and the Court expects Mr. Lara to take this admonition with the utmost seriousness. 5 While Mr. Lara’s statements are serious in their effrontery, the Court is not 6 prepared to find that the drastic measure of disqualification is warranted at this time. 7 However, Defendants are free to bring a renewed motion to disqualify or to impose 8 further sanctions should Mr. Lara continue to violate the bounds of civility during this 9 litigation, especially if any substantive breach of the ethical considerations underlying the 10 fundamental principles of our judicial process should arise. See People ex rel. Dept. of 11 Corps. v. SpeeDee Oil Change Sys., Inc., 20 Cal.4th 1135, 1144-45 (1999) (noting that 12 disqualification balances several important considerations, including the client’s right to 13 chosen counsel and the need to maintain ethical standards of professional responsibility). 14 As an attorney, Mr. Lara is required to represent his client zealously within the 15 bounds of the law. While the practice of civil law is often uncivil, a lawyer who is unable 16 to control their prose and their temper is not in control of himself and is less effective as 17 an advocate. Rather than impugning the integrity of all of those around him, an effective 18 lawyer succeeds by building goodwill and wielding the power of persuasion, not by the 19 release of outrage. Mr. Lara’s paramount duty is the professional and effective 20 representation of Mr. Barajas Centeno in bringing his claims, which take precedence over 21 any personal feeling that Mr. Lara may have about the case. Mr. Centeno will be best 22 served by Mr. Lara’s professionalism, grace, and respect toward opposing counsel and 23 the Court. 24 The Court recognizes the frustration inherent in dealing with repeated incivilities 25 from opposing counsel, which Defendants have faced continually throughout these 26 proceedings. However, under the standard for attorney disqualification due to unethical 27 28 9 19-CV-2098-GPC 1 conduct, the Court looks to whether these statements, however discourteous, will have a 2 substantial continuing effect on future judicial proceedings. At this point in time, the 3 Court will provide Mr. Lara with a final chance to conduct himself professionally in this 4 litigation—noting, however, that should such behavior continue to impede the litigation 5 and the interests of Mr. Lara’s client, then the Court will have no recourse but to 6 disqualify or otherwise sanction Mr. Lara. 7 III. CONCLUSION 8 Defendant’s renewed motion to disqualify plaintiff’s counsel, Genaro Lara, is 9 HEREBY DENIED WITHOUT PREJUDICE. Though the Court does not find a 10 substantial enough basis to enact the drastic measure of disqualification at this time, Mr. 11 Lara is cautioned in the strongest terms to immediately cease any harassment, insulting 12 language, and personal attacks against both defense counsel and any officers or functions 13 of this Court. Further violations will be met with discipline, including possible monetary 14 sanctions. Furthermore, the Court finds no basis to award any of the relief prayed for in 15 Plaintiff’s opposition briefing, ECF No. 192, and all such relief is HEREBY DENIED. 16 17 IT IS SO ORDERED. Dated: April 28, 2022 18 19 20 21 22 23 24 25 26 27 28 10 19-CV-2098-GPC
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