Wilmington-Lomita Boulevard, LLC v. Port of Long Beach, et al.

(Governor George Deukmejian Courthouse: Dept. S28) September 4, 2026 DEPARTMENT S28 LAW AND MOTION RULINGS

On February 27, 2025, Plaintiff Wilmington-Lomita Boulevard, LLC ("Plaintiff") filed a Complaint alleging causes of action for inverse condemnation and trespassing against Defendants Port of Long Beach aka Long Beach Harbor Department, Long Beach Board of Harbor Commissioners, California Department of Transportation aka CalTrans ("Defendant") and R.J. Noble Company. Plaintiff seeks damages of not less than $866,408.40 from Defendants. On August 19, 2026, Defendant filed the instant motion to disqualify Mark B.

Simpkins from serving as counsel herein for Plaintiff. On August 19, 2026, Plaintiff filed their opposition. On August 26, 2026, Defendant filed a reply. DISCUSSION Applicable Law "The trial court is vested with the power '[t]o control in furtherance of justice, the conduct of its ministerial officers.' That power includes the disqualifying of an attorney." (Henricksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th 109, 113 (" Henricksen").) "Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. [Citations.]

In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. [Citation.]" (Id.) "[D]isqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. [Citation.] The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.

The important right to counsel of one's choice must yield to ethical considerations that affect the fundamental principles of our judicial process. [Citations.]" (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204 (" Kennedy"), internal quotation marks omitted.) The "paramount concern" in evaluating a motion to disqualify counsel "must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar." (Jarvis v. Jarvis (2019) 33 Cal.App.5th 113, 139.) The primary fiduciary values at stake in conflict-of-interest cases are the client's right to confidentiality and the attorney's duty of

loyalty. (Id.) Under California Rule of Professional Conduct 3.7(a) ("CRPC") a lawyer cannot "act as an advocate in a trial in which the lawyer is likely to be a witness" unless one of the following exceptions applies: (1) the lawyer's testimony relates to an uncontested issue or matter; (2) the lawyer's testimony 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. . . . (CRPC 3.7(a).) Under CRPC Rule 1.7: (a) A lawyer shall not, without informed written consent* from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter. (b) 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. (c) Even when a significant risk requiring a lawyer to comply with paragraph (b) is not present, a lawyer shall not represent a client without written* disclosure of the relationship to the client and compliance with paragraph (d) where: (1) the lawyer has, or knows* that another lawyer in the lawyer's firm* has, a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter; or (2) the lawyer knows* or reasonably should know* that another party's lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer's firm,* or has an intimate personal relationship with the lawyer. (d) Representation is permitted under this rule only if the lawyer complies with paragraphs (a), (b), and (c), and: (1) the lawyer reasonably believes* that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; and

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. (e) For purposes of this rule, "matter" includes any judicial or other proceeding, application, request for a ruling or other determination, contract, transaction, claim, controversy, investigation, charge, accusation, arrest, or other deliberation, decision, or action that is focused on the interests of specific persons,* or a discrete and identifiable class of persons.* (CRPC 1.7.)

One purpose of the advocate-witness rule is to prevent factfinder confusion regarding whether an advocate-witness's statement is to be considered proof or argument. (See, e.g., People v. Donaldson, (" Donaldson ") (2001) 93 Cal.App.4th 916, 928-29; People ex rel. Younger v. Super. Ct., (1978) 86 Cal.App.3d 180, 196 ("the jury may have difficulty keeping properly segregated the arguments of the attorney acting as advocate and his testimony as a witness").) Additionally, where a lawyer representing a party is also a witness during the trial, his or her effectiveness, both as a lawyer and as a witness, may be impaired in the eyes of the fact finder. (Id.)

Analysis

A. Preliminary Matters i. Evidentiary Objections The Court rules on Plaintiff's evidentiary objections to the Declaration of Kirsten R. Bowman filed in support of the Motion as follows: 1. SUSTAINED, lacks authentication as the Bowman declaration was executed on August 13, 2026, and Exhibit 1 consists of an internal email transmittal dated August 17, 2026; 2. OVERRULED; 3. OVERRULED; 4. OVERRULED; 5. OVERRULED; 6. SUSTAINED, improper argument in declaration; 7. OVERRULED. ii.

Untimely Notice Plaintiff argues that the instant Motion is procedurally void as eighteen court days' notice was required, but Defendant gave only two Court days notice and never sought an order shortening time. (Code Civ. Proc., Sec.Sec. 1005, subd. (b), 1010.6, subd. (a)(3)(B).) Here, while Plaintiff argues that t he instant motion was noticed for hearing on August 21, 2026, at the Final Status Conference, it is unclear what Plaintiff is basing that on. T he instant Motion was originally noticed for November 12, 2026 per the moving papers and the Court's reservation system.

At the Final Status Conference on August 21, 2026, the Court advanced the hearing date to September 4, 2026. Plaintiff had already filed an opposition on the merits, and Defendant was given a reply briefing deadline. Thus, the Court will hear this Motion on the merits. B. Merits Plaintiff seeks damages alleged as a result of Defendant's RJ Noble's use of a 5,000 square foot portion of a vacant parcel leased by Wilmington from the City of Long Beach for use as a construction staging area. Wilmington's complaint alleges one cause of action against Caltrans for inverse condemnation, and two causes of action against RJ Noble for inverse condemnation and trespass. i.

Defendant's Arguments Defendant contends that a conflict of interest has been created pursuant to CRPC Rules 1.7, 1.9, and 3.7 by the fact that Mark B. Simpkins will act both as a "person most qualified" witness and as advocate for Plaintiff in the instant matter. (Motion, p. 8.) In response to Defendant Caltrans's Notice of the Taking of the Deposition of Wilmington's Person Most Qualified, Plaintiff produced its attorney of record, Mark B. Simpkins, for deposition. (Id., pg. 3.) On June 19, 2026, Caltrans took Mr.

Simpkins's PMQ deposition. (Mot., Ex. 2.) Mr. Simpkins confirmed that he would be the person most knowledgeable on a range of topics at issue in this matter. (Ibid.) As to his current position or leadership with regard to the LLC Plaintiff, Mr. Simpkins responded as follows: "I manage the property for my sister. I'm really the only person that has anything to do with the property. All I -- all my sister does really is I deposit the rent checks from the northern parcel into her bank account every month.

That's really all she did. Although she did become more -- she did become involved this year in renewing the insurance the annual insurance this year. Normally, I do that. And she did that just because the insurance sent documents to her and I helped her with that." (Ex. 2, 19:12-24.) When asked if he had a "familial relationship to the LLC," Mr. Simpkins responded, "Yeah. The only member of the LLC is my sister." (Id., pp. 19-20.) Defense Counsel declares that "I met and conferred with Plaintiff's counsel by email.

On August 4, 2026, I emailed Plaintiff's counsel to meet and confer regarding the subject matter of this Motion to Disqualify. Attached hereto as Exhibit 1

is a true and correct copy of that email correspondence. Plaintiff's counsel stated that he would oppose the Motion." (Bowman Decl., P. 2.) The Court did not see these meet and confer efforts in the Bowman declaration. ii. Plaintiff's Arguments Plaintiff first argues in opposition that Defendant's delay in seeking the instant relief and the resulting prejudice to Plaintiff defeat this disqualification motion. (Opp., p. 6.) Plaintiff contends that Caltrans has known about Mr. Simpkins' dual role at the latest since June 12 and June 19, 2026, after he was identified as PMQ and then deposed, and at the earliest, since February 27, 2025, when Plaintiff filed this action. (Opp., p. 7.)

Plaintiff asserts that Caltrans took depositions in June, negotiated a stipulation in July, corresponded about motions in limine in early August, and issued four trial subpoenas duces tecum on August 13, all before filing the instant Motion on August 19, 2026. (Ibid.) Plaintiff further argues that it would suffer severe prejudice were the instant motion granted, as trial is set for September 28, 2026. (Opp., p. 8.) Plaintiff asserts that disqualification would necessarily vacate the current trial date as replacement counsel could not master that record in such a short time.

Plaintiff would forfeit the work invested in motions in limine, exhibit and witness lists, and trial subpoenas, and impose on a small entity the cost of educating new counsel. (Ibid.) Plaintiff further argues that Plaintiff's sole member has given informed written consent to the representation. (Opp., p. 9.) Mr. Simpkins prepared a written disclosure setting out the relevant circumstances enumerated material risks - among them disqualification notwithstanding consent, the risks to his effectiveness as an advocate and his credibility as a witness, the impeachment exposure Caltrans emphasizes, the expert's reliance on his statements, the waiver of privilege, and the cost of substitute counsel - with the available alternatives and an advisement of the right to consult independent counsel.

Ms. Dean executed the consent on August 18, 2026. (Simpkins Decl., 11-13 & Ex. A.) iii. The Court's Findings 1. Defendant was dilatory in filing the instant Motion. The Court finds that Defendant has known about Mr. Simpkins' dual role since June 19, 2026, after he was identified as PMQ and then deposed. In reply, Defendant appears to minimize and try to justify this "just two month[]" delay in filing the instant Motion by detailing internal staffing changes. (Reply, pp. 2-3.) Plaintiff also puts forth that that Caltrans negotiated a stipulation in July, corresponded about motions in limine in early August, and issued four trial subpoenas duces tecum on August 13, all before filing the instant Motion on August 19, 2026.

The Court finds that Defendant was dilatory in filing the instant Motion on the eve of trial, causing severe prejudice to Plaintiff, as further discussed below.

2. Disqualification of Plaintiff's counsel would cause substantial prejudice to

the Defendant at this stage of the proceedings. The court must balance its reasons for disqualifying counsel against the unavoidable prejudice that disqualification will cause to his client. (See Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300 (Gregori) .) A litigant is entitled to counsel of his, her, or their choice; a court cannot lightly infringe on that right. (Lyle v. Superior Court (1981) 122 Cal.App.3d 470, 481 (Lyle); People ex rel. Younger v. Superior Court (1978) 86 Cal.App.3d 180, 201 (Younger).)

Removing a litigant's chosen counsel "often pose[s] the very threat to the integrity of the judicial process that [it] purport[s] to prevent." (Gregori, supra, at p. 301.) If nothing else, disqualification causes a litigant inconvenience and expense that should not be imposed if it can be avoided. (Lyle, supra, at p. 481; Younger, supra, at p. 201.) Here, Plaintiff's counsel has represented Plaintiff since the outset of this case. Trial is less than one month away. The prejudice of denying Plaintiff its counsel of choice at this late stage would be considerable.

Trial would need to be continued. Plaintiff would have to locate new counsel, who would have to get up to speed on the case, get familiar with all discovery, review depositions, and interview witnesses. Plaintiff would incur inconvenience and substantial duplicative costs as new counsel reviewed the record and history of the case. Further, Mr. Simpkin has obtained written informed consent from his client's Sole Member and Managing Member, Annamarie Simpkins Dean, under Rule 3.7(a). (Simpkins Decl., Ex A.)

Mr. Simpkins advised Ms. Dean that if this matter proceeds to trial Plaintiff intends to call him to testify as the Person Most Knowledgeable regarding proof of liability and several elements of damages. (Ibid.) Mr. Simpkins disclosed to Ms. Dean that his dual role as an advocate and as a witness in this matter may create a potential conflict of interest including, but not limited to, potential divergent interests and impartiality concerns. (Ibid.) Overall, the severe prejudice that would be caused to Plaintiff and to the orderly administration of justice by requiring the disqualification of Plaintiff's counsel on the eve of trial compels the Court to only mandate withdrawal in an extreme and clear case.

Thus, Defendant must demonstrate a considerable likelihood of substantial prejudice in order to outweigh the prejudice that disqualification would cause to Plaintiff.

3. Defendant must balance the prejudice to the Plaintiff by showing that counsel's misconduct is likely to cause a substantial continuing effect on the outcome of proceedings. "Since the purpose of a disqualification order must be prophylactic, not punitive, the significant question is whether there exists a genuine likelihood that the status or misconduct of the attorney in question will affect the outcome of the proceedings before the court." (Gregori, supra, at pp. 308-309, italics added.) " '[T]he trial court can disqualify counsel only where it is confronted with manifest interests which it must protect from palpable

prejudice.' [Citation.]" (Geringer v. Blue Rider Finance (2023) 94 Cal.App.5th 813, 822.) The Court has discretion, notwithstanding the Client's consent, to disqualify counsel who seeks to both testify and serve as advocate in order to protect the opposing party from being prejudiced per Lyle v. Super. Ct. (City of Rancho Cucamonga) (1981) 122 Cal.App.3d 470, 482. The Court must consider whether there is a convincing demonstration of detriment to the opposing party or injury to the integrity of the judicial process.

Further, the trial court must deny the disqualification motion under the advocate-witness rule, where (1) counsel's testimony is not needed, (2) opposing counsel files the motion for purely tactical reasons, and (3) when the balance tips in favor of the party because 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. (Doe v.

Yim (2020) 55 Cal.App.5th 573, 583.) Here, the Court finds that Defendant has not shown a genuine likelihood of substantial effect on the proceedings sufficient to outweigh the prejudice to the Plaintiff should counsel be disqualified. Defendant argues that it realized it would be prejudiced by Mr. Simpkin's testimony in this action after taking his deposition and expert witness, Ms. Hosseinzadeh's, deposition. Plaintiff asserts the following based on Mr. Simpkin and Ms. Hosseinzadeh's testimony: (1) Ms.

Hosseinzadeh testified that the basis of her opinions is primarily Mr. Simpkins statements to her; (2) Mr. Simpkins made inconsistent statements that he is the person most qualified on the issue of zoning, advising Ms. Hosseinzadeh not to opine based on zoning, and then testifying that he had no knowledge of the South Parcel zoning after Ms. Hosseinzadeh testified to the contrary. Overall, Defendant makes no clear argument as to how Mr. Simpkin's participation in the action as counsel will prejudice it.

There is also minimal risk of factfinder confusion. "The very fact of a lawyer taking on both roles will affect the way in which a jury evaluates the lawyer's testimony, the lawyer's advocacy, and the fairness of the proceedings themselves." (People v. Donaldson, (2001) 93 Cal.App.4th 916, 928.) Given that the instant case will not be tried to a jury, there is not a risk of factfinder confusion as to whether the advocate-witness's statements are to be considered proof or argument. While a jury may be confused regarding Mr.

Simpkin's role as a witness as opposed to his role as an advocate, the Court will not suffer from that same confusion. Thus, there is no risk of harm to the integrity of the judicial process based on factfinder confusion. It also appears that Defendant may have filed the instant motion for tactical reasons. After Defendant was put on notice of Mr. Simpkins's dual role on June 19, 2026, Defendant (1) negotiated a stipulation in July, (2) corresponded about motions in limine in early August, and (3) issued four trial subpoenas duces tecum on August 13, all before filing the instant Motion on August 19, 2026, which is on the eve of trial.

Overall, the balance tips in favor of Plaintiff because of 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 efforts to replace counsel already familiar with this case. Plaintiff's client would surely face hardship upon the disqualification of Mr. Simpkin from advocating on its behalf. Although a reasonable continuance may be sought for Defendant to secure new counsel, this case commenced on February 27, 2025, nearly two years ago, and further delay may potentially cause prejudice, duplicate expense, and time-consuming efforts to replace counsel already familiar with this case.

Further, the Court does not take lightly Annamarie Simpkins Dean's waiver of the conflict which may arise in this case. Accordingly, the instant motion is DENIED. CONCLUSION Defendant's Motion to Disqualify Counsel is DENIED. | Home -->)" -->