PADILLA vs SHERRILL, et al.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing

23CV003404: PADILLA vs SHERRILL, et al. 04/29/2026 Hearing on Motion to Disqualify Counsel in Department 8D

or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided

***NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G. ST. SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 25 WILL BE HEARD IN DEPARTMENT 8D OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION****

TENTATIVE RULING

Defendant Joseph Sherrill’s (“Defendant”) Motion to Disqualify Counsel for Plaintiff Joseph Padilla (“Plaintiff”) is ruled upon as follows.

Factual Background

This action arises out of Plaintiff’s operation of a machine shop business known as Precision Machine & Engine out of premises located at approximately 3100-B Elkhorn Boulevard, North Highlands, California (the “Premises”). Plaintiff leased the Premises from Defendant, who owns, controls, and/or manages the real property commonly known as 3100 Elkhorn Boulevard, North Highlands which contains the Premises.

Defendant now moves to disqualify Plaintiff’s counsel, Steven S. Brand. Plaintiff opposes.

Defendant argues that Plaintiff’s counsel of record should be disqualified because continued representation “violates multiple provisions of the California Rules of Professional Conduct (CRPC), including Rule 1.2(d) (advising fraudulent conduct), Rule 1.7 (conflict of interest), 1.9 (duties to former clients), 3.3 (candor toward the tribunal), 3.7 (lawyer as witness), and 8.4 (misconduct) and Business and Professions Code § 6128 (attorney Deceit/Collusion) and Uniform Voidable Transactions Act, (codified at Civil Code §§ 3439 et seq.) for Brands role in counseling and drafting the 2025 transaction designed to transfer/shield this actions disputed assets during litigation.” (Mtn., p. 2:1-6.)

Legal Standard

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV003404: PADILLA vs SHERRILL, et al. 04/29/2026 Hearing on Motion to Disqualify Counsel in Department 8D

A trial court's authority to disqualify an attorney derives from the power inherent in every court “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal. 4th 1135, 1145.) Disqualification motions implicate several important interests. Among them are the clients’ right to counsel of their choice, the attorney’s interest in representing a client, the financial burden of replacing a disqualified attorney, and tactical abuse that may underlie the motion. (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 586.)

The “paramount” concern in determining whether counsel should be disqualified is “the preservation of public trust in the scrupulous administration of justice and the integrity of the bar.” (Ibid.; see also People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.)

It must be remembered, however, that disqualification is a drastic course of action that should not be taken simply out of hypersensitivity to ethical nuances or the appearance of impropriety. (Hetos Investments, Ltd. v. Kurtin (2003) 110 Cal.App.4th 36, 47-48.) (Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 218-219.) Indeed, disqualification is generally disfavored and should only be imposed when absolutely necessary. (Concat, LP v Unilever, PLC (N.D. Cal 2004) 350 F.Supp.2d 796, 814.)

Discussion

In sum, Defendant argues that Mr. Brand should be disqualified based on (1) his conflict of interest; (2) his likely role as a necessary witness; (3) his personal interest and involvement in the litigation; and (4) ethical violations.

As noted above, the disqualification of counsel is a drastic measure that should only be taken in extreme circumstances. Generally, disqualification is the result of a conflict of interest or for misuse of confidential information where there exists a genuine risk that the “status or misconduct of the attorney in question will affect the outcome of the proceedings before the court.” (People ex rel. City of San Diego v. Experian Data Corp. (2022) 77 Cal.App.5th 1006, 1016.)

While preservation of the public trust is a policy consideration of the highest order it is just one of the many policy interests which must be balanced by a trial court considering a disqualification motion; “other policy considerations include: (1) a client’s right to chosen counsel; (2) an attorney’s interest in representing a client; (3) financial burden on a client to replace disqualified counsel; (4) possibility that tactical abuse underlies the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV003404: PADILLA vs SHERRILL, et al. 04/29/2026 Hearing on Motion to Disqualify Counsel in Department 8D

disqualification motion; (5) need to maintain ethical standards of professional responsibility; and (6) preservation of public trust in the scrupulous administration of justice and the integrity of the bar.” (Winter v. Menlo (2025) 110 Cal.App.5th 299, 319- 320.)

1. Conflict of Interest

Defendant argues that Mr. Brand should be disqualified from representing Plaintiff because it would result in prejudice, as Mr. Brand acted as counsel in a related action and prepared certain partnership transfer documents for Plaintiff and a company identified as Apodaca in 2025. Defendant further argues that as the result of his involvement in this 2025 property transfer, Mr. Brand is an essential witness additionally warranting his disqualification.

In opposition, Plaintiff argues that no grounds exist which would support disqualification, as Defendant has made no showing that there is a conflict of interest nor that Mr. Brand is an essential witness in the instant action.

California Rules of Professional Conduct, rule 1.9(a), cited by Defendant as the basis for disqualification, provides:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed written consent.

“Before an attorney may be disqualified from representing a party in litigation because his representation of that party is adverse to the interest of a current or former client, it must first be established that the party seeking the attorney's disqualification was or is ‘represented’ by the attorney in a manner giving rise to an attorney-client relationship.” (Civil Service Com. v. Superior Court (1984) 163 Cal.App.3d 70, 76-77 [emphasis added]; Strasbourger Pearson Tulcin Wolff Inc. v. Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399, 1404-1405 [company's payment of attorney fees to law firm representing underwriter for company's stock offering did not establish attorney-client relationship between law firm and company]; Lynn v. George (2017) 15 Cal.App.5th 630, 641 [“potential attorney-client relationship” with alleged partnership insufficient to warrant disqualification].)

Defendant does not explicitly argue that he was previously represented by Mr. Brand.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV003404: PADILLA vs SHERRILL, et al. 04/29/2026 Hearing on Motion to Disqualify Counsel in Department 8D

The motion appears to contend that Mr. Brand previously advised Apodaca in a transactional matter. (See e.g., Mot., at pp. 4:4-10; 7:5-11.) However, Defendant does not argue that he is the owner of Apodaca, nor that Mr. Brand represented Defendant in relation to this transactional matter. Based on the moving papers and evidence before the Court, the Court finds that Defendant has not established that he was or is represented by Mr. Brand.

Moreover, even if Defendant could appropriately raise a challenge regarding a purported conflict of interest, there is no evidence that the interests of Mr. Brand’s former or current clients, Padilla and Apodaca, are materially adverse to one another. Defendant further contends that Mr. Brand provided guidance to Defendant and a company identified as Apodaca in forming a partnership, which permitted Plaintiff to protect Plaintiff’s assets by utilizing Defendant’s interests and liens as security. Defendant argues that Mr. Brand informed Defendant and Apodaca of the potential conflict and prepared the partnership/transfer agreement. However, Defendant does not provide any explanation as to what his interest are with respect to Apodaca. As such, there is no basis for the Court to find that such a conflict exists.

2. Lawyer as Witness

Defendant also argues that Mr. Brand should be disqualified because he is a necessary witness.

Plaintiff argues that Defendant has failed to show that Mr. Brand is a necessary witness or that any testimony he might provide would be unavailable through other sources. Plaintiff argues that “The mere fact that an attorney may have been involved in or aware of underlying events is insufficient to justify disqualification.” (Opp., p. 3:10-12.)

California Rules of Court, rule 3.7 states:

(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 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. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV003404: PADILLA vs SHERRILL, et al. 04/29/2026 Hearing on Motion to Disqualify Counsel in Department 8D

firm is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.

Disqualifying a testifying lawyer despite client consent “must be based on a convincing showing of prejudice to the opposing party or the potential for palpable injury to the judicial process.” (Geringer v. Blue Rider Finance (2023) 94 Cal.App.5th 813, 822; Lopez v. Lopez (2022) 81 Cal.App.5th 412, 424.) The Lopez Court explained:

In exercising its discretion to disqualify counsel under the advocate- witness 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 ... .”

(Lopez, supra, 81 Cal.App.5th at p. 424.) “In determining the necessity of counsel's testimony, the court should consider the significance of the matters to which he might testify, the weight his testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established.” (Smith, Smith & Kring v. Superior Court (Oliver) (1997) 60 Cal.App.4th 573, 581.) In Lopez, the appellate Court reversed a trial court’s disqualification of counsel where the content of counsel’s testimony was uncertain, the Court did not consider prejudice to the represented party, and the disqualification was to all phases of litigation, not just those limited to fact-finder conclusion. (Lopez, supra, 81 Cal.App.5th at pp. 424-427.)

Here, Defendant has not demonstrated that Mr. Brand is likely to be a witness (or a necessary witness) at trial. Indeed, to the extent that Defendant contends that information regarding the partnership/transfer contract is “central,” it appears that it is “central” to the related litigation, not this litigation; Defendant does not present evidence or persuasive argument regarding how this information is “central” to this case. (See Mot., p.6:14-17.) Further, to the extent Defendant contends that Mr.

Brand is a “necessary witness on formation, intent, and asset consolidation,” Defendant has not provided evidence or persuasive argument regarding why the actual parties to the litigation or the contract would not be witnesses to the contract formation or intent (if admissible) and why the contractual terms in the document would not speak for itself. (See ibid.) Likewise, it is unclear why Mr. Brand would need to testify to asset

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV003404: PADILLA vs SHERRILL, et al. 04/29/2026 Hearing on Motion to Disqualify Counsel in Department 8D

consolidation when there is no evidence that the assets at issue belong to him.

There is no evidence before the Court at this time of Mr. Brand’s unique personal knowledge. Indeed, the Court notes that Defendant only asserts that Brand advised Padilla/Apodaca “upon information and belief.” Nor has Defendant cited to any authority which would persuade the Court that rule 3.7 stands for the proposition that disqualification from this entire action and all related actions is required where an attorney may possess information related to underlying events. (See Doe v. Yim (2020) 55 Cal.App.5th 573, 583 [defining “advocate in a trial” to include limited pretrial evidentiary hearings].)

3. Personal Interest/Involvement

Defendant argues that Mr. Brand should be disqualified because he has a personal interest in the instant action. (Mot., pp. 6:20-7:4.) However, Defendant has made no argument or presented any evidence in support of this ground for disqualification. To the extent that Defendant presents evidence that Mr. Brand was named as a protected party in a temporary restraining order proceeding, Defendant has not provided evidence or persuasive argument regarding how this demonstrates a personal interest in this or the related proceeding.

4. Other Ethical Violations

Defendant argues that Mr. Brand’s other purported ethical violations—including bringing non-meritorious claims in the TRO proceeding, failing to exercise diligence in the TRO proceeding, and fraud/lack of candor on the tribunal in the TRO proceedings and in representations to this Court regarding those proceedings—constitute grounds for disqualification. (Mot., pp. 7:12-8:5.)

Plaintiff contends that Defendant’s allegations of ethical violations are factually disputed, irrelevant to disqualification, unsupported by any competent evidence, and do not provide a basis for disqualification. (Opp’n at pp.3:25-4:7.)

In McMillan v. Shadow Ridge at Oak Park HOA (2008) 165 Cal.App.4th 960, 968, the Court of Appeal explained the role of disqualification in the fact of alleged ethical violations, as follows:

The court's goal is not to impose a penalty, as the propriety of punishment for violation of the Rules of Professional Conduct is a matter within the purview of the State Bar, not of a court presiding over the affected case.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV003404: PADILLA vs SHERRILL, et al. 04/29/2026 Hearing on Motion to Disqualify Counsel in Department 8D

[citation] Instead, what the court must do is focus on identifying an appropriate remedy for whatever improper effect the attorney’s misconduct may have had in the case before it.

(emphasis original)].)

As an initial matter, the Court finds the evidence before it insufficient to conclusively establish that an ethical violation occurred as asserted by Defendant. Nevertheless, even if it had, Defendant does not present sufficient evidence to demonstrate to this Court that there was an improper effect in this case (or the related action). Further, the Court does not find that disqualification in this proceeding would be the proper remedy to any such improper effect.

Disposition

Based on the foregoing, Defendant’s motion to disqualify counsel for Plaintiff is DENIED.

The minute order is effective immediately. No formal order pursuant to California Rules of Court, rule 3.1312 or further notice is required.