Leon v. Pearson Realty CA5

Filed 4/17/13 Leon v. Pearson Realty CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

MARIO LEON, et al., F064513 Plaintiffs and Appellants, (Super. Ct. No. 11CECG00809) v.

PEARSON REALTY, INC., et al., OPINION Defendants and Respondents.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. M. Bruce Smith, Judge. Miller & Ayala, Nathan S. Miller for Plaintiffs and Appellants. McCormick, Barstow, Sheppard, Wayte & Carruth, David R. McNamara and Scott M. Reddie, for Defendants and Respondents. -ooOoo- Plaintiffs and appellants Mario Leon, Cesar Culqui, MSC Restaurants, Inc., dba Rumba, Robin Kraemer, David Fansler, Yosemite Ranch Investors, LLC, Michelle

* Before Levy, Acting P.J., Cornell, J. and Gomes, J.

Maxwell and William Maxwell (collectively appellants) appeal from an order denying their motion to disqualify opposing counsel. Appellants contend the trial court erred by not recognizing that disqualification was required because opposing counsel improperly communicated with plaintiff Michelle Maxwell (Maxwell) without her attorney’s consent, and in doing so, threatened and intimidated her. We conclude that appellants lacked standing to bring a disqualification motion and affirm. FACTUAL AND PROCEDURAL BACKGROUND The underlying lawsuit in this case arises from leases appellants entered into for a shopping center. Appellants sued defendants and respondents Pearson Realty, Mike Mele and John Lee (collective respondents) for alleged misrepresentations as to the shopping center including the presence of a specialty supermarket within the center that eventually became a Dollar Store. Appellants are represented by Nathan Miller, while respondents are represented by David R. McNamara (McNamara) and his law firm, McCormick, Barstow, Sheppard, Wayte & Carruth, LLP (the law firm). In January 2012, appellants filed a motion to disqualify McNamara and the law firm from representing respondents. Appellants asserted disqualification was required because McNamara improperly communicated with an adverse party, Maxwell, knowing she was represented by counsel, in violation of Rule 2-100 of the Rules of Professional Conduct, and also violated Rule 5-310 of the Rules of Professional Conduct by threatening and intimidating Maxwell. Maxwell asserted in her accompanying declaration that while attending a football game in San Francisco on September 3, 2011, McNamara, who was obviously intoxicated, walked up to her at a tailgate party, put his arm around her and said “I hope we can still be friends after you lose your case.” Maxwell, who did not “really know who he was,” asked what he was talking about. McNamara responded that he was representing Pearson Realty and he “was going to come down really hard” on her when he deposed her. McNamara also said he hoped she was not expecting to win with her