Witt v. Ross

Background

Jeremy Witt brought claims against Patrick Ross for malicious prosecution and intentional infliction of emotional distress. His amended complaint added a claim for abuse of process. Gordon J. Finwall represented Ross.

Finwall sent Witt’s former attorneys, Michael L. Farley and Matthew D. Owdom, an email pointing out that a federal complaint described Witt as a Nevada resident while a state-court complaint filed three days earlier described him as a resident of San Jose, California. Finwall stated that Ross disputed diversity jurisdiction, asked Witt to preserve documents concerning his residence, and urged Witt to dismiss the federal case. Farley and Owdom later withdrew as Witt’s counsel. Witt then moved to disqualify Finwall and sought $73,343.25 in monetary sanctions.

Disqualification motion

The court applied California professional-conduct law. To disqualify counsel, Witt had to show both that Finwall violated an ethical rule and that disqualification was appropriate after considering the equities.

Witt argued that Finwall’s conduct violated several California Rules of Professional Conduct, including rules concerning interference with representation, truthfulness, conduct involving opposing persons, and dishonesty. The court found that these arguments depended on Witt’s conclusory claim that Finwall intended to mislead Witt’s counsel about jurisdiction. Witt provided no evidence that Finwall inaccurately described the inconsistent allegations in the federal and state complaints.

The court instead found it reasonable for Finwall, after discovering a possible problem with diversity jurisdiction, to dispute that jurisdiction and attempt to persuade Witt’s attorneys that the case lacked merit. The court also rejected Witt’s argument that Finwall should be disqualified because he might be a material witness. Witt did not identify any contested facts on which Finwall would testify, and the court found no evidence supporting Witt’s claim that Finwall was part of a broader retaliatory or extortionate scheme.

Sanctions motion

The court explained that monetary sanctions under its inherent authority require an express finding that the attorney acted in bad faith. Witt argued that Finwall sent the email as a strategic effort to deprive him of representation. The court found that Witt offered no evidence that Finwall sent the email for an improper purpose, such as delaying or disrupting the case. Because the court found no basis for a bad-faith finding, it concluded that monetary sanctions were not warranted.

Order

The court denied Witt’s motion to disqualify Gordon J. Finwall. It also denied Witt’s motion for monetary sanctions. The order addressed these motions and did not decide the merits of Witt’s underlying claims.