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JANE LUCIANO, ESQ. CA. SBN ¹12463
9000 CROW CANYON RD., SUITE ¹168
DANVILLE, CA 94506
7/14/2020
(925) 216-6030
jane-luciano~comcast.net.
WILLIAM McCANN, ESQ. NV. SBN ¹ 12038
P. O. Box 370
Genoa, NV 89411
(775) 200-0627
wdmccann gmai1.corn
Pro Haec Vice
8
Attorneys for Plaintiffs ELIZABETH ANN SIMS and
EDNA GLEASON
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
12
13 LIZA SIMS an individual
and in her capacity as Guardian Ad Litem for
EDNA GLEASON
Plaintiff
15
16 Case 19-cv-01700
Date: July 29, 2020
17 PACIFIC GAS tl'6 ELECTRIC COMPANY Time: 9:00 a.m.
a California Corporation Department I
18 Assigned: Hon. Tamara L. Mosbarger
PG &E CORPORATION
19 A Delaware Corporation
Farmers Group, Inc. dba Farmers Insurance
20 Company, dba Farmers Exchanges,
a Delaware Corporation
21 Dawn Foster, an individual
22 CORPORATE DOES I through 30, inclusive
Defendants
23
MEMORANDUM OF POINTS AND AUTHORITIES OF PLAINTIFF LIZA SIMS, an
individual, and in her capacity as Guardian Ad Litem for EDNA GLEASON, IN
25
OPPOSITION TO MOTION OF FARMER'S GROUP INC. TO DISQUALIFY
WILLIAM D. McCANN AS PRO HAEC COUNSEL FOR PLAINTIFFS
26
27
28
Memorandum of Points and Authorities in Opposition to Motion to Disqualify
TABLE OF CONTENTS
Page
3
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
4 TO MOTION TO DISQUALIFY WILLIAM MCCANN
I. GENERAL OBSERVATIONS
6
H. THE MOTION IS PROCEDURALLY DEFECTIVE
7
HI. UNDERLYING FACTS
8
9 IV. LEGAL ARGUMENT
10 A. Moving Party Has Concealed From This Court The
Leading Case Which Set Forth the Criteria By Which
Its Motion Must Be Decided.
12
B. Moving Party Has Failed To Articulate That Section 10
13 California Code of Civil Procedure 128 (a) Upon Which
It Relies in Bringing This Motion.
14
15 C. This Motion Was Not Properly Filed or Served. 10
D. Mr. McCann Had No Duty to 'Disclose'hat Which
Was Of Public Record.
17
18 E. Moving Party's Motion is Dilatory, and Late.
l9 F. The Prior Circumstances Giving Rise to Mr. McCann's 12
Resignation From The State Bar of California Cannot
20
Be Used Against Him For Any Purpose.
21
G. Other Than The Damage This Motion Has Already 13
22 Inflicted, It ls A Tempest ln A Teapot.
23
H. Granting Of The Motion Abrades Plaintiffs Constitutional 14
24 Right To Have Counsel Of Their Choice Represent
Them and Mr. McCann's Constitutional Right To Do So.
25
V. CLEARLY THIS MOTION WAS FILED FOR AN IMPROPER 14
PURPOSE AND SUBSTANTIAL SANCTIONS SHOULD BE AWARDED
27 AGAINST FARMERS INSURANCE GROUP.
28 VI. CONCLUSION 15
TABLE OF AUTHORITIES
CASKS Page
3
Bock v. Hansen, 225 Cal. App. 4'2014)
I II
4
Steller v. Superior Court of Los Angeles, 159 Cal. App 4re (2008) 9, 10, 13, 14
5
Roush v.Seagate Technology, LLC, supra, 150 Cal. App. 4" at pp. 218-219
Bough v. Gurl (2006) 137 Cal. App. 4'37, 744
Stevenson v. Bourn, 65 Cal. App. 4'" 159 (1998)
Knight v. Ferguson, 149 Cal. App. 4'" 1207 (2007) 14
10
Danker v.Hathaway, Perrett, Webster, Powers, 97 Cal. App. 4'" 949 (2002) 15
II
Guillemin v. Stein, 104 Cal. App. 4'" 156 (2002) 15
fg
13
15
STATUTES
IG
California Code of Civil Procedure 127.5 (b) (I)
17
California Rules of Court 3.742 (I )
10 COVID Rule 12. 21.2
20
California Code of Civil Procedure128 (a) 10
21
Assembly Bill 2138 10. 12, 15
22
California Business & Professions Code Section 480 12
23
34 California State Bar Rule 1-311 13
25 California Code of Civil Procedure 128.7 15
2G
27
28
1 I. GENERAL OBSERVATIONS
This is an attempt by Farmers Group Inc. to disqualify William D. McCann, Esq., counsel duly
3
licensed in the State of Nevada residing in Douglas County, from representing Plaintiffs Liza
Sims and her elderly Mother, Edna Gleason, also residents of Douglas County, Nevada, who
5
lost their homes in the so-called Camp Fire in Paradise, Butte County, California.
6
7 Post this tragedy, which occurred on November 8, 2018, Ms. Sims and Ms. Gleason, then
homeless, became refugees and relocated to Gardnerville, Nevada, where they were referred to
9
Mr. McCann for a number of purposes including, inter aliu, representation with respect to their
10
losses in the fire. (Declaration of Liza Sims, page 2, line 11-21)
ll
The record will reflect that at the time Ms. Sims and Ms. Gleason were referred to Mr. McCann
12
Ms. Sims was then- and is now - the victim of severe post- traumatic stress disorder, having, by
td the courageous act of saving her elderly mother's life in the fire,almost forfeited her own. The
record will reflect that Mr. McCann has been an AV Rated Martindale Hubbell lawyer of long
16
standing and was lead counsel in the Cathedral Hill Fire litigation which occurred in San
17
Francisco, California, on December 19, 1983. (Declaration of Liza Sims, page 2, line 5-10; 24-
18
28)
20 Thus, Mr. McCann who was 72 (seventy-two) years of age at the time of referral to him of Ms.
Sims and Ms. Gleason, had extensive experience in complex federal bankruptcy proceedings as
22
well as catastrophic fire litigation with particular emphasis on causation. Since Mr. McCann had
23
resigned from the State Bar of California some 11 (eleven) years earlier, he referred the matter to
24
Jane Luciano, Esq., a California lawyer in good standing, and before meeting with these newly
26 referred clients, asked Ms. Luciano to come to Gardnerville, Nevada, to participate in a client-
intake meeting and to review that portion of the clients'omplaints cognizable under California
28
Memorandum of Points and Authorities in Opposition to Motion to Disqualify
law. (Ibid., page. 2, line, 16-28; page 3, line I-2) The record reflects — and the evidence will
show — that Farmer Insurance Group and its agent, one Dawn Foster plaintiffs — longtime
3
customers of both the insurance company and its agent — left Ms. Sims high and dry, and without
coverage of the dwelling occupied by Ms. Sims at the time of the fire. She lost everything,
5
including her tools, equipment, cosmetic products, client chairs and other components necessary
6
to practice her profession as a well-known — and highly regarded — aesthetician in serving the
residents of Paradise. (Ibid., 2, line 4-10; page 3, line 24-27)
9
This is an attempt by Farmers Insurance Group, having lost a key demurrer heard by the Hon.
10
Robert A. Glusman on October 9, 2019, to rob Ms. Sims and Ms. Gleason of their chosen
11
counsel. Not only does this motion violate — procedurally - both this Court's local rules and the
12
I 3 new COVID-19 emergency rules but is substanrively defective and unmeritorious. It is,at once,
1tl dilatory, harassing, late, specious, retaliatory, and malicious, and intended to further damage Ms.
15
Sims and Ms. Gleason. The burden of proof to justify disqualification lies with the moving party
16
and it has utterly failed to carry that burden
17
The present motion has no other purpose than to gain some illusory advantage in this litigation,
18
19
filed by a law firm, GORDON REES SCULLY MASUKHANI, LLP (hereinafter GRSM) which
20 has no nexus to either Butte County, California, or Douglas County, Nevada, but advertises
itself (falsely) as having offices in each of the 50 states, (arrogantly addressing opposing counsel
22
in emails 'YOUR 50 STATE PARTNER') and boasts that it is as the law firm in this country
23
i
It is clearly filed for some improper purpose: one may be to obtain attorney-client privileged information which
occurred during the client intake meeting in Gardnerville, Nevada, attended by the clients, Mr. McCann, and Ms.
Luciano. This sort of tactic is to be condemned.
25
See, Exhibit "A" to Request for Judicial Notice,
2
United States Service Mark Registration Number 5968861for
26 'YOUR 50 STATE PARTNER' lutli:i/tmsearch.uspgo~ov binishowtield f=doc8:state= 180 I;Iv3899.2.1 It is
ironic that this law firm thinks it can practice in all 50 states, yet has the 'firepower'revent a Nevada lawyer from
27 representing his Nevada clients in a California litigation after the Nevada lawyer has received permission to do so.
See also the Email to Ms. Luciano containing this appellation, attached as Exhibit "'A" to the Declaration of
28 Jane Luciano.
Memorandum of Points and Authorities in Opposition to Motion to Disqualify
with the maximum amount of
FIREPOWER'as 'LEGAL FIREPOWER'. Now, that 'LEGAL
been trained — apparently on behalf of Farmers Insurance Group — against these plaintiffs
3
generally, and against Mr. McCann, specifically.
4
Since, as the record will reflect, neither he nor Ms. Luciano have ever had to advertise — and
5
harbor the antediluvian view that of the practice of law as a profession rather than as an attack
6
7 weapon (such as, for example, an AK-47 — or a Kalashnikov ), a tactic such as this motion
under review is considered -by them - deplorable — puerile — and/or mendacious. Certainly the
9
moving party has not articulated — nor can it articulate - any substantive reason for filing such a
10
motion — it must be concluded that it was filed for an improper purpose, as condemned by
11
California Code of Civil Procedure 127.5 (b) (I).
12
13
II. THE MOTION IS PROCEDURALLY DEFECTIVE
AND MUST BE DENIED.
15
The motion is contains 4 (four) fatal procedural defects:
17 1. The moving party failed to 'meet and confer'ith either Mr. McCann or Ms. Luciano
before filing the motion, in violation of California Rule of Court 3.742 (I) (See, Declaration of
19
Jane Luciano in Opposition to Motion to Disqualify, page 2, line 8-9.)
20
2. The moving party, in its notice, incorrectly designates the department to in which this
21
matter is to be heard. It is noticed for Department 10. The case, because of the fact that it is a PG
23 and E Camp Fire liability case, is assigned to Judge Mosbarger. She is in Department 1.
25
26
See, Exhibit "B" to Request for Judicial Notice, United States Service Mark Registration Number 3118435,
3
27
For 'LEGAL FIREPOWER'- http: //tmsearch.uspto.gov/bin/showfield?f=doc&state=4802:e443xy.2.1
4
28 Admittedly, this Russian made rifle can fire only 600 rounds per minute. GRSM advertises that it has 1000
lawyers on staff.
Memorandum of Points and Authorities in Opposition to Motion to Disqualify
3. The moving party improperly served this motion under COVID-19, Rule 12. (See Exhibit
"A" to Declaration of Jane Luciano, Esq., email from Legal Secretary Jennifer L. Odell to
3
Plaintiffs'ounsel) stating that the instant motion is served under the COVID s Emergency Rule
12. That rule states, in pertinent part:
5
6
(a) Application
7
b. Notwithstanding (I), tire rule does not apply in cases where parties are already
required by court order or local rule to provide or accept notices and documents by
electronic service, and is not intended to prolri bit electronic service in cases not
addressed by this rule. (Emphasis added)
10
4. Moving party was required, therefore, to file and serve this motion pursuant to Local
11
Rule 21, since the parties have already been required to use the EFSPs required by Local Rule
12
J 3 21. In fact, Farmer's unsuccessful demurrer/motion to strike was filed and served
according to that rule. See, Rule 21.2.
15
Therefore, Plaintiffs objects to the filing and service 6 upon them in this matter. There is no
16
need to serve this motion in this manner.
17
18
III. UNDERLYING FACTS
19
Plaintiff Liza Sims, rented the premises located at 13854 Andover Dr. Magalia, California
21
95954 from her mother Plaintiff Edna Gleason as her primary residence, and from which
22
to operate her cosmetic tattoo pigment sales and service business from said premises.
23
The premises had been insured, for many years, under a policy including but not limited to loss
24
of property by fire, consequential damages arising from such loss, for third party liability, and for
26 s
Further evidence of the mendacity and greed of GRSM is found in their recent ad crowing that they are the experts
on the legal implications of COVID for their clients. See Exhibit "B" to the Declaration of Jane Luciano, Esq., a
27
screenshot of said ad. See httns:/.'wv vvunsm.corn. Apparently their expertise does not extent to this court's local
COVID rules.
28
Memorandum of Points and Authorities in Opposition to Motion to Disqualify
1
all personal property contained therein, issued by Farmers Group Inc. This policy was sold,
2
managed and maintained by defendant Dawn Foster, Farmers Insurance Group by its duly
authorized agent liable for the errors, acts, and omissions of pursuant to the doctrine of
respondeat superior.
6
At or about the time of Ms. Sims occupation of the premises as a tenant, she personally visited
7
Foster's place of work (Farmers) with her elderly mother and spoke face to face with Foster
8
concerning her mother's insurance coverage on the home at 13854 Andover Dr. in Magalia. Ms.
9
Sims had moved from AK to inhabit the house and eventually inherit it. It was or should have
11 been evident to Ms. Foster that Ms. Sim's mother was elderly, in decline and frail and Ms. Sims
12
was there to assist her. Ms. Sims was assured by Ms. Foster (Farmers) that Ms. Sims belongings
13
were covered under the then existing policy.
ld
Subsequent to the first encounter noted above, Ms. Sims visited Foster's office again when she
15
closed the shop she was working at in Paradise and moved all her hospital grade skincare
1 t equipment to her garage. Ms. Sims was again assured that the existing policy covered both her
personal belongings and her home business belongings. Ms. Sims was not advised of any
19
limitations to the coverage. The precise reason for the visits to Ms. Foster was to inquire whether
20
the existing policy covered Ms. Sims personal and business belongings on the property her
21
mother owned and insured. Based on Ms. Foster's representations that her belongings were
23 covered by the existing coverage under the Mother's policy, Ms. Sims did not pursue additional
coverage. Had Ms. Sims been informed that this was not the case or that there were any
25
limitations in the existing policy which would result in her being bare, she would have purchased
26
the necessary insurance coverage.
27
Ms. Foster had a duty to represent, accurately, the state of insurance coverage on the
Memorandum of Points and Authorities in Opposition to Motion to Disqualify
premises, and its scope, during the noted conversation. In fact, at the time of such conversation
the policy then in force excluded commercial activities on the premises or the contents therein
3
used in any commercial activity. Had Ms. Sims been so informed, she would then have
s
purchased a policy of 'tenant insurance'overing, also, her personal and commercial activities.
5
See, Bock v. IIrtnsen, 225 Cal. App. 4'" (2014).
7 Ms. Foster's assurances constituted a misrepresentation, since the policy then in force
did not cover the personal property or commercial property of a tenant thereof, and said
9
misrepresentation fell below the standard of care expected for insurance professionals in
10
explaining scope of coverage.
11
Ms. Sims relied upon Ms. Foster's representation, had a right to rely insofar as she is neither
12
13 an expert on insurance coverage or a lawyer, and thus did not purchase a 'tenant's insurance
1d policy'r coverage for her conunercial activities.
15
As a proximate result of said misrepresentation, Ms. Sims has been damaged in amount in
16
excess of $ 400,000.00 (four hundred thousand dollars) including but not limited to loss of
17
cosmetic equipment, pigment, and income for a period of at least 6 (six) months.
18
9
Counsel Jane Luciano, Esq., a former nurse at Enloe Medical Center in Chico and a California
20 licensee, was referred this matter by William D. McCann, a tormer California lawyer then
practicing in Nevada. Ms. Luciano understood that although the clients, Ms. Liza Sims and
22
Ms. Edna Gleason, had been catastrophically damaged by the Camp Fire, they were residents
23
in Gardnerville, Nevada. Mr. McCann did not meet with the client prior to Mr. Luciano
24
travelling to Gardnerville. Mr. McCann explained to the clients that he was not licensed in
26 California and would have Ms. Luciano analyze their case pursuant to California law; he
further indicated that, in view of his significant experience in fire cases resulting in post
28
Memorandum of Points and Authorities in Opposition to Motion to Disqualify
traumatic stress and other injuries, he would assist Ms. Luciano, because though she had
significant experience in Butte County in medical matters, she had never participated in a fire
3
liability case nor did she have complex bankruptcy experience. Mr. McCann explained that this
tt
would require permission of the Superior Court in and for the County of Butte, and would
5
6
require a motion which might or might not be granted. (See Declaration of William D. McCann
7 in Opposition to Motion to Disqualify and Declaration of Jane Luciano in Opposition to Motion
to Disqualify).
9
Prior to accepting representation of Ms. Sims and Ms. Gleason — and before coming to
10
Nevada to meet with them, Ms. Luciano discovered that Mr. McCann was an AV rated
11
Martindale Hubbell lawyer of long standing. (Ibid, at page 3, line 1-2)
12
] 3 The motion was filed on June 10, 2019; at the hearing on the motion, no representative of
7 t moving party appeared (See, Minute Order of July 10, 2019 attached to Declaration of Jane
15
Luciano as Exhibit "C")
16
Farmers Insurance Group had actual notice of Mr. McCann's involvement as of July 2019,
17
and constructive notice of Mr. McCann's prior membership in the State Bar of California
18
9 by virtue of public records both available online with a stroke of computer keys. Yet i t
20 waited one year — until the eve of the effective date of a statute — Assembly Bill 2138 as
codifieilin Business and Professions Code Section 480, to file this motion, believing,
22
presumably, tliatif tliey waited until after tliat date — Mr. McCann 's former membership in tlie
23
state bar — liis resignation — and any facts underlying tliat resignation — could be used to
24
discredit or disqualify liim. As will be seen, Farmers Insurance Group is prevented by the
26 noted statute from so proceeding.
27
28
Memorandum of Points and Authorities in Opposition to Motion to Disqualify
1 IV. LEGAL ARGUMENT
A. MOVING PARTY HAS CONCEALED FROM THIS COURT THE LEADING
CASE WHICH SET FORTH THE CRITERIA BY WHICH ITS MOTION MUST
BE DECIDF.D
That case is Sheller v. Superior Courl ofLos Angeles, 159 Cal. App. 4'" 1697 (2008). The
5
concealment by GRSM is particularly egregious since in Sheller, its client Farmers Insurance
6
7 Group tried to disqualify — in fact, tried to revoke — the pro lraec vice status of a Texas
lawyer based on alleged misconduct before the Superior Court of Los Angeles. The
9
attempted disqualification of the attorney in Shelle~ was REVERSED by the California
10
Court of Appeal. Because the burden of proving that a party's counsel of choice should be
11
removed is quite heavy, and Farmer Insurance Group failed to meet it.
12
13 The high bar Farmers Insurance Group failed to hurdle in Slreller — and in its paperwork
14 supporting the present motion is articulated in a case relied upon by the Slreller court:
15
"lt must be renrembered, however, that disqualification r's a drastic corirse of action that should not
be taken simply out of hyperserrsitiii ty to ethical nuances or the appearimce of'impropriety n (Roush
17 v. Seagate Technology, LLC, supra, 150 Cal, App.4th at pp. 218-219, 58 Cal.Rptr.3d 275.)
As is the case here, Sheller was a prominent Texas attorney and a member of the prominent
19
Jaworski law firm located Houston, Texas. Like Mr. McCann, Sheller was a Martindale Hubbell
20
AV rated lawyer. Sheller was accused of having sent a flyer to potential class members in the
21
litigation that contained a misrepresentation. The trial court reprimanded Sheller and
22
23 conditionally revoked bis pro haec vice status.
The Sheller court held that:
25
Distjuajificatiorr is only justified where the misconduct will have a 'continuirrg effect'n judicial
"
proceedings. Citing, (B~au h v. Garl (2006$ 137 Cal. App.4th 737. 744 40 Cal. R~tr.3d 539.)
In the present case, assuming, arguendo, that Mr. McCann's application for pro haec vice status
28
represents some form of 'misconduct', moving parties have failed to show how this alleged
Memorandum of Points and Authorities in Opposition to Motion to Disqualify
1
misconduct will have a 'continuing effect'n these proceedings. Moreover, the present motion
2
is engendered to punish Mr. McCann and reward Farmers Insurance Group. Such conduct is
3
condemned by the California Court of Appeals in Sheller:
"The purpose of disqualification is not to punish a transgression ofprofessional ethics. "
(Shellet7 at page 2l 7)
6
B. MOVING PARTY HAS FAILED TO ARTICULATE THAT SECTION
CALIFORNIA CODE OF CIVIL PROCEDURE 128 (a) UPON WHICH IT
RELIES IN BRINGING THIS MOTION
CCP 128 (a) generally states that a court can exercise control over the proceedings and
10
participants that come before it. The leading Sheller case recognizes this Court's inherent power
11
to do so.
12
But there are 8 (eight) separate 'grounds'hereunder, and moving party does not cite which
14 section applies. The Court and counsel are entitled to know that.
What does apply is Assembly Bill 2138 which became effective July 1,2020, as shall be
16
seen in section infra. and which directly applied to the substantive merits of this motion.
17
It is clear that this motion was filed to subvert this statute on the eve of its effective date.
18
19 C. THIS MOTION WAS NOT PROPERLY FILED OR SERVED.
20 This particular case has been governed by the local rules and EFSP. Moving party knew this
at the time it filed the present motion, because it has used this the court's EFSPs in filing
22
an unsuccessful motion for judgment on the pleadings.
23
Because of the moving party's violation of the EFSPs, this motion it is not even properly before
24
this court. So if it is moving parties view that if it had to file on June 30, 2020 it — then it 'blew*
26 — as they say — the statute.
27
28
Memorandum of Points and Authorities in Opposition to Motion to Disqualify 10
D. MR. McCANN HAD NO DUTY TO 'DISCLOSE'HAT WHICH WAS
OF PUBLIC RECORD
The gravamen of moving party's motion is that Mr. McCann somehow breached a
duty of disclosure, to wit, that he had resigned from the State Bar of California and had no
right to practice law therein. That somehow Mr. McCann concealed this fact.
6
First, Mr. McCann has no duty whatsoever to moving party, and moving party does not
7
demonstrate such duty; nor is moving party prejudiced by Mr. McCann's participation in the
8
case and moving party does not demonstrate such prejudice; nor, could Mr. McCann
'conceal'omething
that was of public record and easily available to moving party — which, of course, has
11 an incentive to remove an attorney of Mr. McCann's stature. Mr. McCann's Declaration is clear
12
on what he thought was expected of him in making this application, and only made the
13
application in an abundance of caution because he anticipated the scabrous attack characteristic
ld
of insurance defense counsel. (See, Declaration of William D. McCann in Opposition to Motion
15
to Disqualify) The Court is respectfully requested to review at this juncture Plaintiffs Motion to
17 Strike and the Objections to the Declaration of lnouye. It is hearsay, conclusory, and
malicious.
19
But GRSM'ncentive, in the context of this motion, represents an improper purpose in filing it.
20
Mr. McCann had no duty to disclose that which was clearly available in the public record. See,
21
Stevenson v.Bourn, 65 Cal. App. 4'" 159 (1998)
23 E. MOVING PARTY'S MOTIN IS DILATORY, AND LATE
GSRM and Farmers has known of Mr. McCann's involvement in this case for over a year. His
25
removal works great prejudice to Ms. Sims and Ms. Gleason. (See, Declaration of Liza Sims) In
26
fact, since ethical constraints have required Mr. McCann and Ms. Luciano to inform Ms. Sims of
27
the filing of the motion, and the purported reason therefor, she has suffered extreme emotional
Memorandum of Points and Authorities in Opposition to Motion to Disqualify
1
distress as a result of its filing. If Mr. McCann were removed from this case, it would cause
2
3
great emotional damage to Ms. Sims.
F. THE PRIOR CIRCUMSTANCES GIVING RISE TO MR. McCANN'S
RESIGNATION FROM THE STATE BAR OF CALIFORNIA CANNOT BE
USED AGAINST HIM FOR ANY PURPOSE.
6
Importantly, Governor Brown signed Assembly Bill 2138 in September 2018 and AB 2138 was
7
effective as of July 1, 2020. AB 2138, now codified in the Business and Professions Code
8
Section 480 limits the use of criminal convictions for license denial, eligibility or reinstatement.
9
Business and Professions Code Section 480 states in pertinent part:
11 (a) Notwithstanding any other provision of this code, a board may deny a license regulated by
this code on the grounds that the applicant has been convicted of a crime or has been subject to
12
formal discipline only if either of the following conditions are met:
13
(1) The applicant has been convicted of a crime within the preceding seven years from the date
14 of application that is substantially related to the qualifications, functions, or duties of the
business or profession
15
(2) The applicant has been subjected to formal discipline by a licensing board in or outside
California within the preceding seven years from the date of application.
17
Under AB 2138 7-year rule, criminal convictions that are 7 or more years old cannot form the
18
basis for licensure denial. In addition, the amendment to B & P section 480 explicitly prevents
the use of the "underlying conduct" as a basis for denial. As it relates to formal discipline by the
State Bar, the 7-year rule applies and the licensee cannot be denied the right to practice again.
20
There are limited exceptions to the 7-year rule for:
21
22 (1) Serious felonies.
(2) Convictions requiring reporting related to Penal Code Section 290 or
23 (3) Felony financial crimes limited to 6 Boards. The practice of law is not one of the Boards
subject to the exception to the 7-year rule.
Mr. McCann resigned from the State Bar 11 (eleven) years ago- well outside the 7-year window
26 and he is not subject to any of the exceptions noted above. Mr. McCann has never been
convicted of 'a serious felony'. Consequently, Mr. McCann is eligible for reinstatement, should
28
Memorandum of Points and Authorities in Opposition to Motion to Disqualify 12
he choose to apply for it.
The Court is respectfully requested to review Plaintiff s Objections to the Declaration of Inouye
3
and accompanying Motion to Strike. Farmers and GRSM*s motion is predicated upon Mr.
4
lnouye 's interpretation of what the public record of Mr. McCann 's California State Bar
5
resignation means. First, Mr. Inouye's opinions and conclusions are inadmissable hearsay;
6
7 second, his opinions and conclusions ignore, pervert, and misrepresent the current state of
8 the law — that the facts underlying Mr. McCann's resignation cannot be used for any purpose.
G. OTHER THAN THE DAMAGE THIS MOTION HAS ALREADY INFLICTED,
IT IS A TEMPEST IN A TEAPOT
11
California State Bar Rule 1-311 of the State Bar provides:
12
] 3 {C) A member may employ. associate professionally with, or aid a disbarred. suspended,
resigned, or involuntarilv inactive member to perform research, drafting or clerical activities.
14 including but not limited to:
15 (1) Legal work of a preparatory nature, such as legal research, the assemblage of data and other
necessary information. draging ol pleadings, briefs, and other similar documents;
16
17
Pl Direct communication with the client or third parties regarding matters such as scheduling,
billing, updates, confirmation of receipt or sending ol'conespondence and messagies; or
18
(3) Accompanying an active member in attending a deposition or other discovery matter for the
18 limited purpose of providing clerical assistance to thc active member who will appear as the
representalive of the client.
20
21
Nothing in rule 1-311 shall be deemed to limit or preclude any activity
engagedin pursuant to rules 9.40, 9.41, 9.42, and 9.44 of the California
Rules of Court, or any local rule of a federal district court concerning
admission pro haec vice. (Added by Order of Supreme Court, operative
August 1, 1996. Amended by order of the Supreme Court, operative Suly
11, 200S)
26 Mr. McCann has an independent right under Nevada State law to represent Nevada clieltts-
27 7
Mr. McCann is now 73 (seventy-three) years of age and essentially retired. He came out of retirement to assist the
28 needy victims of the tragic California fires. He has no intention of rejoining the State Bar of California or becoming
a California resident.
Memorandum of Points and Authorities in Opposition to Motion to Disqualify 13
1
especially needy ret'ugees from a catastrophic fire in another state, -in this matter. '1 he Sheller
2
case clearly holds that a client's right to counsel should be honored.
3
Ms. I,uciano could have just hired Mr. McCann to perform the local Nevada work necessary to
elfectively assist the clients.
6
But it was decided, in an abundance of caution — and in the best interests of the clients — to
7
have him assist as co-counsel in this matter. Are the clients, ivls. Luciano, and Mr. McCann
8
to bc ptrni t Jted for so doing?
9
10
H. GRANTING OF THE MOTION ABRADES PLAINTIFFS CONSTITUTIONAL
RIGHT TO HAVE COUNSEL OF THEIR CHOICE REPRESENT THEM AND
MR. McCANN'S CONSTITUTIONAL RIGHT TO DO SO
12
13
Moving party has articulated no reason why the rights of the plaintiffs to have Mr. McCann
14
as their counsel and his right to represent them should be abraded. The California case of
15
FnigJtr v. Fergtrs&trr, 149 Cal. App 4'" 1207 (2007), cited v ith approval in Sheller, requires a
17 very heavy burden of proof to take away these rights. Moving party has certainly not met its
burden.
19
V. CLEARLY THIS MOTION WAS FILED FOR AN IMPROPER PURPOSE
20 AND SUBSTANTIAL SANCTIONS SHOULD BE AWARDED AGAINST
FARMERS INSURANCE GROUP
21
A. Farmers and their agents GRSM knew, before filing this motion, that Mr. McCann had
23 worked on this case for over a year and
B. Were fully aware that William D. McCann he was local Nevada counsel practicing in
25
Douglas County Nevada and represented Plaintiff resident in Douglas County, Nevada, and
26
fully aware of his role in the case and
27
C. Were fully aware than Jane Luciano, Esq. was lead counsel in the case, which was of
Memorandum of Points and Authorities in Opposition to Motion to Disqualify 14
1
of record in the records of the Court Clerk of the Superior Court of Butte County and
2
3
D. Were fully aware of the fragile condition of Plaintiff Liza Sims, and intended to further
damage her by filing this motion and
E. Were fully aware of the fact that the motion was improperly filed and served on the last
6
day prior to the effective date of AB 2138 and yet, when placed on notice of that fact with a
7
request that it be withdrawn stubbornly and arrogantly failed to withdraw it, causing expense,
8
injury, and damage to Plaintiffs.
9
Plaintiffs are requesting an award of sanctions under Code of Civil Procedure 128.7 based on
11 the following violations:
12 ~ The failure to meet and confer
13 ~ The failure to use the proper filing rule
~ The failure to cite Steller case and
~ Filing a Motion for an 'improper purpose'ecause they neither state a purpose, but
15 purposely fail to cite the Steller case to hide the improper purpose.
16 See Banker v. Hathaway, Perrett, 5'ebster, Powers cfrChrisman, 97 Cal.App. 4'" 949 (2002);
Guillemin v. Stein,104 Cal.App. 4m 156 (2002)
17
Plaintiffs have complied with the 30 day rule because defense counsel were told to withdraw the
19 motion.
VI. CONCLUSION
20
For the reasons set forth, this motion should summarily be denied and sanctions awarded.
22
Dated: July 13, 2020 Respectfully submitted,
23
25
26 Jane Luciano, Esq.
27
CJ Counsel for Plaintiffs
Liza Sims and Edna Gleason
28
Memorandum of Points and Authorities in Opposition to Motion to Disqualify 15
Preview
JANE LUCIANO, ESQ. CA. SBN ¹12463 9000 CROW CANYON RD., SUITE ¹168 DANVILLE, CA 94506 7/14/2020 (925) 216-6030 jane-luciano~comcast.net. WILLIAM McCANN, ESQ. NV. SBN ¹ 12038 P. O. Box 370 Genoa, NV 89411 (775) 200-0627 wdmccann gmai1.corn Pro Haec Vice 8 Attorneys for Plaintiffs ELIZABETH ANN SIMS and EDNA GLEASON 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF BUTTE 12 13 LIZA SIMS an individual and in her capacity as Guardian Ad Litem for EDNA GLEASON Plaintiff 15 16 Case 19-cv-01700 Date: July 29, 2020 17 PACIFIC GAS tl'6 ELECTRIC COMPANY Time: 9:00 a.m. a California Corporation Department I 18 Assigned: Hon. Tamara L. Mosbarger PG &E CORPORATION 19 A Delaware Corporation Farmers Group, Inc. dba Farmers Insurance 20 Company, dba Farmers Exchanges, a Delaware Corporation 21 Dawn Foster, an individual 22 CORPORATE DOES I through 30, inclusive Defendants 23 MEMORANDUM OF POINTS AND AUTHORITIES OF PLAINTIFF LIZA SIMS, an individual, and in her capacity as Guardian Ad Litem for EDNA GLEASON, IN 25 OPPOSITION TO MOTION OF FARMER'S GROUP INC. TO DISQUALIFY WILLIAM D. McCANN AS PRO HAEC COUNSEL FOR PLAINTIFFS 26 27 28 Memorandum of Points and Authorities in Opposition to Motion to Disqualify TABLE OF CONTENTS Page 3 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION 4 TO MOTION TO DISQUALIFY WILLIAM MCCANN I. GENERAL OBSERVATIONS 6 H. THE MOTION IS PROCEDURALLY DEFECTIVE 7 HI. UNDERLYING FACTS 8 9 IV. LEGAL ARGUMENT 10 A. Moving Party Has Concealed From This Court The Leading Case Which Set Forth the Criteria By Which Its Motion Must Be Decided. 12 B. Moving Party Has Failed To Articulate That Section 10 13 California Code of Civil Procedure 128 (a) Upon Which It Relies in Bringing This Motion. 14 15 C. This Motion Was Not Properly Filed or Served. 10 D. Mr. McCann Had No Duty to 'Disclose'hat Which Was Of Public Record. 17 18 E. Moving Party's Motion is Dilatory, and Late. l9 F. The Prior Circumstances Giving Rise to Mr. McCann's 12 Resignation From The State Bar of California Cannot 20 Be Used Against Him For Any Purpose. 21 G. Other Than The Damage This Motion Has Already 13 22 Inflicted, It ls A Tempest ln A Teapot. 23 H. Granting Of The Motion Abrades Plaintiffs Constitutional 14 24 Right To Have Counsel Of Their Choice Represent Them and Mr. McCann's Constitutional Right To Do So. 25 V. CLEARLY THIS MOTION WAS FILED FOR AN IMPROPER 14 PURPOSE AND SUBSTANTIAL SANCTIONS SHOULD BE AWARDED 27 AGAINST FARMERS INSURANCE GROUP. 28 VI. CONCLUSION 15 TABLE OF AUTHORITIES CASKS Page 3 Bock v. Hansen, 225 Cal. App. 4'2014) I II 4 Steller v. Superior Court of Los Angeles, 159 Cal. App 4re (2008) 9, 10, 13, 14 5 Roush v.Seagate Technology, LLC, supra, 150 Cal. App. 4" at pp. 218-219 Bough v. Gurl (2006) 137 Cal. App. 4'37, 744 Stevenson v. Bourn, 65 Cal. App. 4'" 159 (1998) Knight v. Ferguson, 149 Cal. App. 4'" 1207 (2007) 14 10 Danker v.Hathaway, Perrett, Webster, Powers, 97 Cal. App. 4'" 949 (2002) 15 II Guillemin v. Stein, 104 Cal. App. 4'" 156 (2002) 15 fg 13 15 STATUTES IG California Code of Civil Procedure 127.5 (b) (I) 17 California Rules of Court 3.742 (I ) 10 COVID Rule 12. 21.2 20 California Code of Civil Procedure128 (a) 10 21 Assembly Bill 2138 10. 12, 15 22 California Business & Professions Code Section 480 12 23 34 California State Bar Rule 1-311 13 25 California Code of Civil Procedure 128.7 15 2G 27 28 1 I. GENERAL OBSERVATIONS This is an attempt by Farmers Group Inc. to disqualify William D. McCann, Esq., counsel duly 3 licensed in the State of Nevada residing in Douglas County, from representing Plaintiffs Liza Sims and her elderly Mother, Edna Gleason, also residents of Douglas County, Nevada, who 5 lost their homes in the so-called Camp Fire in Paradise, Butte County, California. 6 7 Post this tragedy, which occurred on November 8, 2018, Ms. Sims and Ms. Gleason, then homeless, became refugees and relocated to Gardnerville, Nevada, where they were referred to 9 Mr. McCann for a number of purposes including, inter aliu, representation with respect to their 10 losses in the fire. (Declaration of Liza Sims, page 2, line 11-21) ll The record will reflect that at the time Ms. Sims and Ms. Gleason were referred to Mr. McCann 12 Ms. Sims was then- and is now - the victim of severe post- traumatic stress disorder, having, by td the courageous act of saving her elderly mother's life in the fire,almost forfeited her own. The record will reflect that Mr. McCann has been an AV Rated Martindale Hubbell lawyer of long 16 standing and was lead counsel in the Cathedral Hill Fire litigation which occurred in San 17 Francisco, California, on December 19, 1983. (Declaration of Liza Sims, page 2, line 5-10; 24- 18 28) 20 Thus, Mr. McCann who was 72 (seventy-two) years of age at the time of referral to him of Ms. Sims and Ms. Gleason, had extensive experience in complex federal bankruptcy proceedings as 22 well as catastrophic fire litigation with particular emphasis on causation. Since Mr. McCann had 23 resigned from the State Bar of California some 11 (eleven) years earlier, he referred the matter to 24 Jane Luciano, Esq., a California lawyer in good standing, and before meeting with these newly 26 referred clients, asked Ms. Luciano to come to Gardnerville, Nevada, to participate in a client- intake meeting and to review that portion of the clients'omplaints cognizable under California 28 Memorandum of Points and Authorities in Opposition to Motion to Disqualify law. (Ibid., page. 2, line, 16-28; page 3, line I-2) The record reflects — and the evidence will show — that Farmer Insurance Group and its agent, one Dawn Foster plaintiffs — longtime 3 customers of both the insurance company and its agent — left Ms. Sims high and dry, and without coverage of the dwelling occupied by Ms. Sims at the time of the fire. She lost everything, 5 including her tools, equipment, cosmetic products, client chairs and other components necessary 6 to practice her profession as a well-known — and highly regarded — aesthetician in serving the residents of Paradise. (Ibid., 2, line 4-10; page 3, line 24-27) 9 This is an attempt by Farmers Insurance Group, having lost a key demurrer heard by the Hon. 10 Robert A. Glusman on October 9, 2019, to rob Ms. Sims and Ms. Gleason of their chosen 11 counsel. Not only does this motion violate — procedurally - both this Court's local rules and the 12 I 3 new COVID-19 emergency rules but is substanrively defective and unmeritorious. It is,at once, 1tl dilatory, harassing, late, specious, retaliatory, and malicious, and intended to further damage Ms. 15 Sims and Ms. Gleason. The burden of proof to justify disqualification lies with the moving party 16 and it has utterly failed to carry that burden 17 The present motion has no other purpose than to gain some illusory advantage in this litigation, 18 19 filed by a law firm, GORDON REES SCULLY MASUKHANI, LLP (hereinafter GRSM) which 20 has no nexus to either Butte County, California, or Douglas County, Nevada, but advertises itself (falsely) as having offices in each of the 50 states, (arrogantly addressing opposing counsel 22 in emails 'YOUR 50 STATE PARTNER') and boasts that it is as the law firm in this country 23 i It is clearly filed for some improper purpose: one may be to obtain attorney-client privileged information which occurred during the client intake meeting in Gardnerville, Nevada, attended by the clients, Mr. McCann, and Ms. Luciano. This sort of tactic is to be condemned. 25 See, Exhibit "A" to Request for Judicial Notice, 2 United States Service Mark Registration Number 5968861for 26 'YOUR 50 STATE PARTNER' lutli:i/tmsearch.uspgo~ov binishowtield f=doc8:state= 180 I;Iv3899.2.1 It is ironic that this law firm thinks it can practice in all 50 states, yet has the 'firepower'revent a Nevada lawyer from 27 representing his Nevada clients in a California litigation after the Nevada lawyer has received permission to do so. See also the Email to Ms. Luciano containing this appellation, attached as Exhibit "'A" to the Declaration of 28 Jane Luciano. Memorandum of Points and Authorities in Opposition to Motion to Disqualify with the maximum amount of FIREPOWER'as 'LEGAL FIREPOWER'. Now, that 'LEGAL been trained — apparently on behalf of Farmers Insurance Group — against these plaintiffs 3 generally, and against Mr. McCann, specifically. 4 Since, as the record will reflect, neither he nor Ms. Luciano have ever had to advertise — and 5 harbor the antediluvian view that of the practice of law as a profession rather than as an attack 6 7 weapon (such as, for example, an AK-47 — or a Kalashnikov ), a tactic such as this motion under review is considered -by them - deplorable — puerile — and/or mendacious. Certainly the 9 moving party has not articulated — nor can it articulate - any substantive reason for filing such a 10 motion — it must be concluded that it was filed for an improper purpose, as condemned by 11 California Code of Civil Procedure 127.5 (b) (I). 12 13 II. THE MOTION IS PROCEDURALLY DEFECTIVE AND MUST BE DENIED. 15 The motion is contains 4 (four) fatal procedural defects: 17 1. The moving party failed to 'meet and confer'ith either Mr. McCann or Ms. Luciano before filing the motion, in violation of California Rule of Court 3.742 (I) (See, Declaration of 19 Jane Luciano in Opposition to Motion to Disqualify, page 2, line 8-9.) 20 2. The moving party, in its notice, incorrectly designates the department to in which this 21 matter is to be heard. It is noticed for Department 10. The case, because of the fact that it is a PG 23 and E Camp Fire liability case, is assigned to Judge Mosbarger. She is in Department 1. 25 26 See, Exhibit "B" to Request for Judicial Notice, United States Service Mark Registration Number 3118435, 3 27 For 'LEGAL FIREPOWER'- http: //tmsearch.uspto.gov/bin/showfield?f=doc&state=4802:e443xy.2.1 4 28 Admittedly, this Russian made rifle can fire only 600 rounds per minute. GRSM advertises that it has 1000 lawyers on staff. Memorandum of Points and Authorities in Opposition to Motion to Disqualify 3. The moving party improperly served this motion under COVID-19, Rule 12. (See Exhibit "A" to Declaration of Jane Luciano, Esq., email from Legal Secretary Jennifer L. Odell to 3 Plaintiffs'ounsel) stating that the instant motion is served under the COVID s Emergency Rule 12. That rule states, in pertinent part: 5 6 (a) Application 7 b. Notwithstanding (I), tire rule does not apply in cases where parties are already required by court order or local rule to provide or accept notices and documents by electronic service, and is not intended to prolri bit electronic service in cases not addressed by this rule. (Emphasis added) 10 4. Moving party was required, therefore, to file and serve this motion pursuant to Local 11 Rule 21, since the parties have already been required to use the EFSPs required by Local Rule 12 J 3 21. In fact, Farmer's unsuccessful demurrer/motion to strike was filed and served according to that rule. See, Rule 21.2. 15 Therefore, Plaintiffs objects to the filing and service 6 upon them in this matter. There is no 16 need to serve this motion in this manner. 17 18 III. UNDERLYING FACTS 19 Plaintiff Liza Sims, rented the premises located at 13854 Andover Dr. Magalia, California 21 95954 from her mother Plaintiff Edna Gleason as her primary residence, and from which 22 to operate her cosmetic tattoo pigment sales and service business from said premises. 23 The premises had been insured, for many years, under a policy including but not limited to loss 24 of property by fire, consequential damages arising from such loss, for third party liability, and for 26 s Further evidence of the mendacity and greed of GRSM is found in their recent ad crowing that they are the experts on the legal implications of COVID for their clients. See Exhibit "B" to the Declaration of Jane Luciano, Esq., a 27 screenshot of said ad. See httns:/.'wv vvunsm.corn. Apparently their expertise does not extent to this court's local COVID rules. 28 Memorandum of Points and Authorities in Opposition to Motion to Disqualify 1 all personal property contained therein, issued by Farmers Group Inc. This policy was sold, 2 managed and maintained by defendant Dawn Foster, Farmers Insurance Group by its duly authorized agent liable for the errors, acts, and omissions of pursuant to the doctrine of respondeat superior. 6 At or about the time of Ms. Sims occupation of the premises as a tenant, she personally visited 7 Foster's place of work (Farmers) with her elderly mother and spoke face to face with Foster 8 concerning her mother's insurance coverage on the home at 13854 Andover Dr. in Magalia. Ms. 9 Sims had moved from AK to inhabit the house and eventually inherit it. It was or should have 11 been evident to Ms. Foster that Ms. Sim's mother was elderly, in decline and frail and Ms. Sims 12 was there to assist her. Ms. Sims was assured by Ms. Foster (Farmers) that Ms. Sims belongings 13 were covered under the then existing policy. ld Subsequent to the first encounter noted above, Ms. Sims visited Foster's office again when she 15 closed the shop she was working at in Paradise and moved all her hospital grade skincare 1 t equipment to her garage. Ms. Sims was again assured that the existing policy covered both her personal belongings and her home business belongings. Ms. Sims was not advised of any 19 limitations to the coverage. The precise reason for the visits to Ms. Foster was to inquire whether 20 the existing policy covered Ms. Sims personal and business belongings on the property her 21 mother owned and insured. Based on Ms. Foster's representations that her belongings were 23 covered by the existing coverage under the Mother's policy, Ms. Sims did not pursue additional coverage. Had Ms. Sims been informed that this was not the case or that there were any 25 limitations in the existing policy which would result in her being bare, she would have purchased 26 the necessary insurance coverage. 27 Ms. Foster had a duty to represent, accurately, the state of insurance coverage on the Memorandum of Points and Authorities in Opposition to Motion to Disqualify premises, and its scope, during the noted conversation. In fact, at the time of such conversation the policy then in force excluded commercial activities on the premises or the contents therein 3 used in any commercial activity. Had Ms. Sims been so informed, she would then have s purchased a policy of 'tenant insurance'overing, also, her personal and commercial activities. 5 See, Bock v. IIrtnsen, 225 Cal. App. 4'" (2014). 7 Ms. Foster's assurances constituted a misrepresentation, since the policy then in force did not cover the personal property or commercial property of a tenant thereof, and said 9 misrepresentation fell below the standard of care expected for insurance professionals in 10 explaining scope of coverage. 11 Ms. Sims relied upon Ms. Foster's representation, had a right to rely insofar as she is neither 12 13 an expert on insurance coverage or a lawyer, and thus did not purchase a 'tenant's insurance 1d policy'r coverage for her conunercial activities. 15 As a proximate result of said misrepresentation, Ms. Sims has been damaged in amount in 16 excess of $ 400,000.00 (four hundred thousand dollars) including but not limited to loss of 17 cosmetic equipment, pigment, and income for a period of at least 6 (six) months. 18 9 Counsel Jane Luciano, Esq., a former nurse at Enloe Medical Center in Chico and a California 20 licensee, was referred this matter by William D. McCann, a tormer California lawyer then practicing in Nevada. Ms. Luciano understood that although the clients, Ms. Liza Sims and 22 Ms. Edna Gleason, had been catastrophically damaged by the Camp Fire, they were residents 23 in Gardnerville, Nevada. Mr. McCann did not meet with the client prior to Mr. Luciano 24 travelling to Gardnerville. Mr. McCann explained to the clients that he was not licensed in 26 California and would have Ms. Luciano analyze their case pursuant to California law; he further indicated that, in view of his significant experience in fire cases resulting in post 28 Memorandum of Points and Authorities in Opposition to Motion to Disqualify traumatic stress and other injuries, he would assist Ms. Luciano, because though she had significant experience in Butte County in medical matters, she had never participated in a fire 3 liability case nor did she have complex bankruptcy experience. Mr. McCann explained that this tt would require permission of the Superior Court in and for the County of Butte, and would 5 6 require a motion which might or might not be granted. (See Declaration of William D. McCann 7 in Opposition to Motion to Disqualify and Declaration of Jane Luciano in Opposition to Motion to Disqualify). 9 Prior to accepting representation of Ms. Sims and Ms. Gleason — and before coming to 10 Nevada to meet with them, Ms. Luciano discovered that Mr. McCann was an AV rated 11 Martindale Hubbell lawyer of long standing. (Ibid, at page 3, line 1-2) 12 ] 3 The motion was filed on June 10, 2019; at the hearing on the motion, no representative of 7 t moving party appeared (See, Minute Order of July 10, 2019 attached to Declaration of Jane 15 Luciano as Exhibit "C") 16 Farmers Insurance Group had actual notice of Mr. McCann's involvement as of July 2019, 17 and constructive notice of Mr. McCann's prior membership in the State Bar of California 18 9 by virtue of public records both available online with a stroke of computer keys. Yet i t 20 waited one year — until the eve of the effective date of a statute — Assembly Bill 2138 as codifieilin Business and Professions Code Section 480, to file this motion, believing, 22 presumably, tliatif tliey waited until after tliat date — Mr. McCann 's former membership in tlie 23 state bar — liis resignation — and any facts underlying tliat resignation — could be used to 24 discredit or disqualify liim. As will be seen, Farmers Insurance Group is prevented by the 26 noted statute from so proceeding. 27 28 Memorandum of Points and Authorities in Opposition to Motion to Disqualify 1 IV. LEGAL ARGUMENT A. MOVING PARTY HAS CONCEALED FROM THIS COURT THE LEADING CASE WHICH SET FORTH THE CRITERIA BY WHICH ITS MOTION MUST BE DECIDF.D That case is Sheller v. Superior Courl ofLos Angeles, 159 Cal. App. 4'" 1697 (2008). The 5 concealment by GRSM is particularly egregious since in Sheller, its client Farmers Insurance 6 7 Group tried to disqualify — in fact, tried to revoke — the pro lraec vice status of a Texas lawyer based on alleged misconduct before the Superior Court of Los Angeles. The 9 attempted disqualification of the attorney in Shelle~ was REVERSED by the California 10 Court of Appeal. Because the burden of proving that a party's counsel of choice should be 11 removed is quite heavy, and Farmer Insurance Group failed to meet it. 12 13 The high bar Farmers Insurance Group failed to hurdle in Slreller — and in its paperwork 14 supporting the present motion is articulated in a case relied upon by the Slreller court: 15 "lt must be renrembered, however, that disqualification r's a drastic corirse of action that should not be taken simply out of hyperserrsitiii ty to ethical nuances or the appearimce of'impropriety n (Roush 17 v. Seagate Technology, LLC, supra, 150 Cal, App.4th at pp. 218-219, 58 Cal.Rptr.3d 275.) As is the case here, Sheller was a prominent Texas attorney and a member of the prominent 19 Jaworski law firm located Houston, Texas. Like Mr. McCann, Sheller was a Martindale Hubbell 20 AV rated lawyer. Sheller was accused of having sent a flyer to potential class members in the 21 litigation that contained a misrepresentation. The trial court reprimanded Sheller and 22 23 conditionally revoked bis pro haec vice status. The Sheller court held that: 25 Distjuajificatiorr is only justified where the misconduct will have a 'continuirrg effect'n judicial " proceedings. Citing, (B~au h v. Garl (2006$ 137 Cal. App.4th 737. 744 40 Cal. R~tr.3d 539.) In the present case, assuming, arguendo, that Mr. McCann's application for pro haec vice status 28 represents some form of 'misconduct', moving parties have failed to show how this alleged Memorandum of Points and Authorities in Opposition to Motion to Disqualify 1 misconduct will have a 'continuing effect'n these proceedings. Moreover, the present motion 2 is engendered to punish Mr. McCann and reward Farmers Insurance Group. Such conduct is 3 condemned by the California Court of Appeals in Sheller: "The purpose of disqualification is not to punish a transgression ofprofessional ethics. " (Shellet7 at page 2l 7) 6 B. MOVING PARTY HAS FAILED TO ARTICULATE THAT SECTION CALIFORNIA CODE OF CIVIL PROCEDURE 128 (a) UPON WHICH IT RELIES IN BRINGING THIS MOTION CCP 128 (a) generally states that a court can exercise control over the proceedings and 10 participants that come before it. The leading Sheller case recognizes this Court's inherent power 11 to do so. 12 But there are 8 (eight) separate 'grounds'hereunder, and moving party does not cite which 14 section applies. The Court and counsel are entitled to know that. What does apply is Assembly Bill 2138 which became effective July 1,2020, as shall be 16 seen in section infra. and which directly applied to the substantive merits of this motion. 17 It is clear that this motion was filed to subvert this statute on the eve of its effective date. 18 19 C. THIS MOTION WAS NOT PROPERLY FILED OR SERVED. 20 This particular case has been governed by the local rules and EFSP. Moving party knew this at the time it filed the present motion, because it has used this the court's EFSPs in filing 22 an unsuccessful motion for judgment on the pleadings. 23 Because of the moving party's violation of the EFSPs, this motion it is not even properly before 24 this court. So if it is moving parties view that if it had to file on June 30, 2020 it — then it 'blew* 26 — as they say — the statute. 27 28 Memorandum of Points and Authorities in Opposition to Motion to Disqualify 10 D. MR. McCANN HAD NO DUTY TO 'DISCLOSE'HAT WHICH WAS OF PUBLIC RECORD The gravamen of moving party's motion is that Mr. McCann somehow breached a duty of disclosure, to wit, that he had resigned from the State Bar of California and had no right to practice law therein. That somehow Mr. McCann concealed this fact. 6 First, Mr. McCann has no duty whatsoever to moving party, and moving party does not 7 demonstrate such duty; nor is moving party prejudiced by Mr. McCann's participation in the 8 case and moving party does not demonstrate such prejudice; nor, could Mr. McCann 'conceal'omething that was of public record and easily available to moving party — which, of course, has 11 an incentive to remove an attorney of Mr. McCann's stature. Mr. McCann's Declaration is clear 12 on what he thought was expected of him in making this application, and only made the 13 application in an abundance of caution because he anticipated the scabrous attack characteristic ld of insurance defense counsel. (See, Declaration of William D. McCann in Opposition to Motion 15 to Disqualify) The Court is respectfully requested to review at this juncture Plaintiffs Motion to 17 Strike and the Objections to the Declaration of lnouye. It is hearsay, conclusory, and malicious. 19 But GRSM'ncentive, in the context of this motion, represents an improper purpose in filing it. 20 Mr. McCann had no duty to disclose that which was clearly available in the public record. See, 21 Stevenson v.Bourn, 65 Cal. App. 4'" 159 (1998) 23 E. MOVING PARTY'S MOTIN IS DILATORY, AND LATE GSRM and Farmers has known of Mr. McCann's involvement in this case for over a year. His 25 removal works great prejudice to Ms. Sims and Ms. Gleason. (See, Declaration of Liza Sims) In 26 fact, since ethical constraints have required Mr. McCann and Ms. Luciano to inform Ms. Sims of 27 the filing of the motion, and the purported reason therefor, she has suffered extreme emotional Memorandum of Points and Authorities in Opposition to Motion to Disqualify 1 distress as a result of its filing. If Mr. McCann were removed from this case, it would cause 2 3 great emotional damage to Ms. Sims. F. THE PRIOR CIRCUMSTANCES GIVING RISE TO MR. McCANN'S RESIGNATION FROM THE STATE BAR OF CALIFORNIA CANNOT BE USED AGAINST HIM FOR ANY PURPOSE. 6 Importantly, Governor Brown signed Assembly Bill 2138 in September 2018 and AB 2138 was 7 effective as of July 1, 2020. AB 2138, now codified in the Business and Professions Code 8 Section 480 limits the use of criminal convictions for license denial, eligibility or reinstatement. 9 Business and Professions Code Section 480 states in pertinent part: 11 (a) Notwithstanding any other provision of this code, a board may deny a license regulated by this code on the grounds that the applicant has been convicted of a crime or has been subject to 12 formal discipline only if either of the following conditions are met: 13 (1) The applicant has been convicted of a crime within the preceding seven years from the date 14 of application that is substantially related to the qualifications, functions, or duties of the business or profession 15 (2) The applicant has been subjected to formal discipline by a licensing board in or outside California within the preceding seven years from the date of application. 17 Under AB 2138 7-year rule, criminal convictions that are 7 or more years old cannot form the 18 basis for licensure denial. In addition, the amendment to B & P section 480 explicitly prevents the use of the "underlying conduct" as a basis for denial. As it relates to formal discipline by the State Bar, the 7-year rule applies and the licensee cannot be denied the right to practice again. 20 There are limited exceptions to the 7-year rule for: 21 22 (1) Serious felonies. (2) Convictions requiring reporting related to Penal Code Section 290 or 23 (3) Felony financial crimes limited to 6 Boards. The practice of law is not one of the Boards subject to the exception to the 7-year rule. Mr. McCann resigned from the State Bar 11 (eleven) years ago- well outside the 7-year window 26 and he is not subject to any of the exceptions noted above. Mr. McCann has never been convicted of 'a serious felony'. Consequently, Mr. McCann is eligible for reinstatement, should 28 Memorandum of Points and Authorities in Opposition to Motion to Disqualify 12 he choose to apply for it. The Court is respectfully requested to review Plaintiff s Objections to the Declaration of Inouye 3 and accompanying Motion to Strike. Farmers and GRSM*s motion is predicated upon Mr. 4 lnouye 's interpretation of what the public record of Mr. McCann 's California State Bar 5 resignation means. First, Mr. Inouye's opinions and conclusions are inadmissable hearsay; 6 7 second, his opinions and conclusions ignore, pervert, and misrepresent the current state of 8 the law — that the facts underlying Mr. McCann's resignation cannot be used for any purpose. G. OTHER THAN THE DAMAGE THIS MOTION HAS ALREADY INFLICTED, IT IS A TEMPEST IN A TEAPOT 11 California State Bar Rule 1-311 of the State Bar provides: 12 ] 3 {C) A member may employ. associate professionally with, or aid a disbarred. suspended, resigned, or involuntarilv inactive member to perform research, drafting or clerical activities. 14 including but not limited to: 15 (1) Legal work of a preparatory nature, such as legal research, the assemblage of data and other necessary information. draging ol pleadings, briefs, and other similar documents; 16 17 Pl Direct communication with the client or third parties regarding matters such as scheduling, billing, updates, confirmation of receipt or sending ol'conespondence and messagies; or 18 (3) Accompanying an active member in attending a deposition or other discovery matter for the 18 limited purpose of providing clerical assistance to thc active member who will appear as the representalive of the client. 20 21 Nothing in rule 1-311 shall be deemed to limit or preclude any activity engagedin pursuant to rules 9.40, 9.41, 9.42, and 9.44 of the California Rules of Court, or any local rule of a federal district court concerning admission pro haec vice. (Added by Order of Supreme Court, operative August 1, 1996. Amended by order of the Supreme Court, operative Suly 11, 200S) 26 Mr. McCann has an independent right under Nevada State law to represent Nevada clieltts- 27 7 Mr. McCann is now 73 (seventy-three) years of age and essentially retired. He came out of retirement to assist the 28 needy victims of the tragic California fires. He has no intention of rejoining the State Bar of California or becoming a California resident. Memorandum of Points and Authorities in Opposition to Motion to Disqualify 13 1 especially needy ret'ugees from a catastrophic fire in another state, -in this matter. '1 he Sheller 2 case clearly holds that a client's right to counsel should be honored. 3 Ms. I,uciano could have just hired Mr. McCann to perform the local Nevada work necessary to elfectively assist the clients. 6 But it was decided, in an abundance of caution — and in the best interests of the clients — to 7 have him assist as co-counsel in this matter. Are the clients, ivls. Luciano, and Mr. McCann 8 to bc ptrni t Jted for so doing? 9 10 H. GRANTING OF THE MOTION ABRADES PLAINTIFFS CONSTITUTIONAL RIGHT TO HAVE COUNSEL OF THEIR CHOICE REPRESENT THEM AND MR. McCANN'S CONSTITUTIONAL RIGHT TO DO SO 12 13 Moving party has articulated no reason why the rights of the plaintiffs to have Mr. McCann 14 as their counsel and his right to represent them should be abraded. The California case of 15 FnigJtr v. Fergtrs&trr, 149 Cal. App 4'" 1207 (2007), cited v ith approval in Sheller, requires a 17 very heavy burden of proof to take away these rights. Moving party has certainly not met its burden. 19 V. CLEARLY THIS MOTION WAS FILED FOR AN IMPROPER PURPOSE 20 AND SUBSTANTIAL SANCTIONS SHOULD BE AWARDED AGAINST FARMERS INSURANCE GROUP 21 A. Farmers and their agents GRSM knew, before filing this motion, that Mr. McCann had 23 worked on this case for over a year and B. Were fully aware that William D. McCann he was local Nevada counsel practicing in 25 Douglas County Nevada and represented Plaintiff resident in Douglas County, Nevada, and 26 fully aware of his role in the case and 27 C. Were fully aware than Jane Luciano, Esq. was lead counsel in the case, which was of Memorandum of Points and Authorities in Opposition to Motion to Disqualify 14 1 of record in the records of the Court Clerk of the Superior Court of Butte County and 2 3 D. Were fully aware of the fragile condition of Plaintiff Liza Sims, and intended to further damage her by filing this motion and E. Were fully aware of the fact that the motion was improperly filed and served on the last 6 day prior to the effective date of AB 2138 and yet, when placed on notice of that fact with a 7 request that it be withdrawn stubbornly and arrogantly failed to withdraw it, causing expense, 8 injury, and damage to Plaintiffs. 9 Plaintiffs are requesting an award of sanctions under Code of Civil Procedure 128.7 based on 11 the following violations: 12 ~ The failure to meet and confer 13 ~ The failure to use the proper filing rule ~ The failure to cite Steller case and ~ Filing a Motion for an 'improper purpose'ecause they neither state a purpose, but 15 purposely fail to cite the Steller case to hide the improper purpose. 16 See Banker v. Hathaway, Perrett, 5'ebster, Powers cfrChrisman, 97 Cal.App. 4'" 949 (2002); Guillemin v. Stein,104 Cal.App. 4m 156 (2002) 17 Plaintiffs have complied with the 30 day rule because defense counsel were told to withdraw the 19 motion. VI. CONCLUSION 20 For the reasons set forth, this motion should summarily be denied and sanctions awarded. 22 Dated: July 13, 2020 Respectfully submitted, 23 25 26 Jane Luciano, Esq. 27 CJ Counsel for Plaintiffs Liza Sims and Edna Gleason 28 Memorandum of Points and Authorities in Opposition to Motion to Disqualify 15