LEVINE VS. FAIRCHILD

Moving party to give notice.

6. LEVINE VS. FAIRCHILD 2025-01534040 MOTION TO DISQUALIFY ATTORNEY OF RECORD

Plaintiff Andrew S. Levine’s motion to disqualify Alex Wesevich, Esq. as counsel for defendant Aaron Fairchild is DENIED.

Plaintiff’s Evidentiary Objections to Defendant’s Evidence is SUSTAINED as to Objection Nos. 8 and 12 and OVERRULED as to the remaining.

Plaintiff moves to disqualify Wesevich on the grounds his representation of Defendant violates Rules of Professional Conduct, Rules 3.7 and 1.7.

Disqualification under Rule 3.7:

Rules of Professional Conduct, Rule 3.7 provides: “(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: [¶] (1) the lawyer’s testimony relates to an uncontested issue or matter; [¶] (2) the lawyer’s tes timony relates to the nature and value of legal services rendered in the case; or [¶] (3) the lawyer has obtained informed written consent from the client. . .”

“A comment to the rule clarifies that the informed-consent exception is not absolute: ‘Notwithstanding a client’s informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or the opposing party from being prejudiced.’ [Citations.] ‘In other words, a court retains discretion to disqualify a likely advocate-witness as counsel, notwithstanding client conse nt, where there is “a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process. ” ’ [Citations.]” (Lopez v. Lopez (2022) 81 Cal.App.5th 412, 423 (Lopez).)

“Rule 3.7 is limited on its face to trial.” (Lopez, supra, 81 Cal.App.5th at p. 423.) “Nevertheless, to effectuate the rule’s purpose of avoiding fact finder confusion, we interpret the rule’s use of the term ‘trial’ to encompass a pretrial evidentiary hearing at which counsel is likely to testify.” (Doe v. Yim (2020) 55 Cal.App.5th 573, 583 (Doe).) Further, “ ‘most courts recognize that an attorney who intends to testify at trial may not participate in “any pretrial activities which carry the risk of revealing the attorney’s dual role to the jury.” [Citation.] In particular, a testifying attorney should not take or defend depositions.’ [Citations]” (Ibid.)

“In exercising its discretion to disqualify counsel under the advocatewitness rule, a court must consider: (1) ‘ “ ‘whether counsel’s testimony is, in fact, genuinely needed’ ” ’; (2) ‘the possibility [opposing] counsel is using the motion to disqualify for purely tactical reasons’; and (3) ‘the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.’ [Citation.] ‘[T]rial judges must indicate on the record they have considered the appropriate factors and make specific findings of fact when weighing the conflicting interests involved in recusal motions.’ [Citation.]” (Doe, supra, 55 Cal.App.5th at pp. 583–84.)

Plaintiff moves to disqualify Wesevich from the entire action on the grounds that Wesevich is a material witness to the events alleged in the Second Amended Complaint (“SAC”). Plaintiff states that Wesevick worked as a paralegal at Fairchild & Levine LLP, and a significant portion of the fiduciary breaches and related misconduct he alleges against Defendant involve his favoritism toward, protection of, and actions taken on behalf of Wesevich, including decisions made without consultation and actions taken over Plaintiff’s objection. (Levine Decl., ¶ 3.)

Further, the SAC alleges that “in or around late July 2025, Fairchild conducted an undisclosed “investigation” with certain staff members, in cluding employees A.W. (Alex Wesevich), T.B., and L.E., regarding accusations and narratives about Levine, without disclosing the scope, questions, or content of the investigation to Levine, and while leveraging Firm systems and access to amplify the accus ations.” (SAC, ¶ 37.) The SAC further alleges that Weservich was the subject of concerns regarding the time-entry manipulation and billing irregularities raised by Plaintiff to Defendant. (SAC, ¶ 62.)

Levine anticipates calling Wesevich as a witness at trial regarding these matters, and others including issues of favoritism, firm management decisions, disparagement/interference with employees, and timekeeping practices. (Levine Decl. ¶ 15.)

Defendant disputes that Wesevich is a material witness and argue Plaintiff’s own responses show alternative witnesses who can testify about their own communications and observations. Further, Defendant contends Fairchild & Levine, LLP’s RingCentral messages, emails, time records, policies, and other business records capture substantial portions of the events. (Opp., 6:20-22.) As to the billing allegations, Defendant argues not only does Plaintiff admit he cannot identify every allegedly affected client or invoice and relies heavily on records, but Plaintiff’s claim that Fairchild APC’s time is not a genuine economic charge rests on the ownership relationship and his stated belief that Fairchild has not transferred personal funds, not on evidence of falsified time. (Wesevich Decl., ¶ 18, Ex. F [Response Nos. 112-118].)

Based on the conflicting evidence submitted by the parties, there appears to be a genuine risk that Wesevich’s testimony maybe necessary at least as to Wesevich’s timekeeping practices. Howe ver, Plaintiff’s request to disqualify Wesevich from the entire action is not supported by Rule 3.7. Rule 3.7 is limited to trial, any pretrial activities which carry the risk of revealing the attorney’s dual role to the jury, and the taking or defending of depositions by a testifying attorney. (Doe, supra, 55 Cal.App.5th at pp. 583.)

Further, here, Defendant has given informed written consent to Wesevich’s continued representation of Defendant in the pretrial and non-witness aspects of this action. (Fairchild Decl., ¶ 12.) Wesevich states in his declaration that before Plaintiff filed his motion to disqualify him, Defendant and Wesevich had already decided that, if this action proceeds to trial and Wesevich is expected to testify, Defendant will associate separate trial counsel. (Wesevich Decl., ¶ 7.) Under this plan, Wesevich will not act as trial advocate, sit at counsel table before the trier of fact, examine witnesses, argue to the trier of fact, or otherwise present the case at trial. (Wesevich Decl., ¶ 7.)

If Wesevich is deposed or required to testify at an evidentiary hearing, separate counsel will handle the examination or advocacy associated with Wesevich’s testimony. (Wesevich Decl., ¶ 7.) Wesevich avers that he disclosed this plan to Plaintiff in writing on Decembe r 31, 2025, several months before Plaintiff filed this Motion. (Wesevich Decl., ¶ 8, Ex. B.)

Here, the advocate-witness concern is mostly addressed by Defendant’s informed written consent to Wesevich’s continued representation and Defendant’s agreement to have separate counsel represent Defendant at trial and if Wesevich is deposed or required to testify at an evidentiary hearing.

Additionally, the court will order that Wesevich will not represent Defendant at any pretrial activities which carry the risk of revealing the attorney’s dual role to the jury, and not take or defend any depositions in this action. (Doe, supra, 55 Cal.App.5th at pp. 583.)

Disqualification under Rule 1.7: Rule 1.7, subdivision (b) provides: “A lawyer shall not, without informed written consent from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer's own interests.”

Here, Defendant has given his informed written consent under Rule 1.7 to Wesevich continuing to represent him in the pretrial and nonwitness aspects of this action. (Fairchild Decl., ¶ 12.) There is currently no claim by Plaintiff against Wesevich, no defense requiring Defendant to blame Wesevich, and no identified strategic decision on which their interests presently diverge. Further, to the extent Plaintiff states he anticipates that Wesevich may be named as a defendant, Defendant and Wesevich state they will reassess if actual adversi ty develops. (Wesevich Decl., ¶¶ 9-10; Fairchild Decl., ¶ 13.)

Therefore, disqualification of Wesevich under Rule 1.3 is not warranted.

Moving party to give notice.

7. MONSTER ENERGY COMPANY VS. C.H. ROBINSON WORLDWIDE, INC. 2026-01537801 1. MOTION FOR ORDER TO STAY PROCEEDINGS

Defendant C.H. Robinson’s (CHR) Motion to Stay Proceedings is DENIED. Plaintiff’s objections are overruled. Plaintiff’s requests for judicial notice are granted. The parties dispute the proper forum for this action. CHR argues the Customs Power of Attorney agreement applies and Minnesota is the proper forum. Alternatively, CHR argues Florida is the proper forum because GSDMIA already filed an action regarding the claims in Florida. Monster argues the Warehouse Agreement applies and the proper forum is California.

First, as to the Warehouse Agreement, it is not clear the document is an enforceable contract. The Agreement is unsigned and is labeled “CONFIDENTIAL DRAFT FOR DISCUSSION PURPOSES ONLY.” However, David Kitashima from CHR sent an email on 1/4/23 to two Monster employees stating there were a “few adjustments to the rates for the Jacksonville warehouse” and those were added “to the attached contract.” (Carver Decl., Ex. 1.) Kitashima further stated the rates would be “valid starting on 2/1/23.” (Carver Decl., Ex. 1.) Kitashima attached the Warehouse Agreement at issue. On 12/5/24, Kitashima sent an email to Monster providing a similar contract for 2025. (Carver Decl., Ex. 3.) The warehouse agreement attached to the 2025 email also has “CONFIDENTIAL DRAFT FOR DISCUSSION PURPOSES ONLY.”

Formation of a contract requires assent through an offer communicated to the offeree and acceptance communicated to the offeror. (Moorpark v. Moorpark Unified School Dist. (1991) 54 C.3d 921, 930.) Acceptance of a written offer may be oral or manifested through conduct. (Rest.2d, Contracts § 19.) Carver states in his declaration, “[s]tarting February 1, 2023, and throughout 2023, CHR invoiced MEC at the new, adjusted rates for labor and full pallet storage set forth in the January 4, 2023 email and attached Warehouse Agreement ....” (Carver Decl., ¶ 10.)

Further, the contract itself provides “[i]n the absence of written acceptance, the act of tendering Goods ... within 30 days from the proposal date shall constitute such acceptance by Depositor.” (ROA 22, Ex. 1.) CHR argues the contract is unsigned, watermarked as a discussion draft only, has comments in the margins, does not have standard operating procedures, is self-contradicting, and was disavowed by