Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Richard B. Wolfe, Judge. Los Angeles County Super. Ct. No. LC085383
Dino M. Zaffina, in pro. per., for Petitioner.
No appearance for Respondent.
Manning & Marder Kass, Ellrod, Ramirez, Eugene J. Egan, Steven J. Renick, and Lori B. Wade, for Real Party in Interest.
MANELLA, J.
Plaintiff and petitioner Dino M. Zaffina seeks a writ of mandate to overturn an order prohibiting him from communicating directly with defendant. We grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Zaffina appears to have a law degree, but he is not a member of the State Bar of California. On May 6, 2009, Zaffina filed a lawsuit against Target Corporation (Target), claiming that he was injured on an escalator at a Target store. Zaffina then sent numerous e-mails and letters to Target officers and employees and to defense counsel. Target aptly describes these letters as unprofessional and disrespectful.
Target moved for an order prohibiting Zaffina from communicating directly with it. In the trial court, Target argued that Zaffina was bound by California Rules of Professional Conduct, Rule 2-100 (Rule 2-100), which generally prohibits an attorney from contacting a represented client. The trial court granted the motion, finding that Zaffina was bound by Rule 2-100 and that pro. per. litigants were held to the same standards as attorneys. The trial court made no findings regarding Zaffina’s conduct, and did not describe it as either abusive or egregious.
Contrary to Target’s statement that “[t]he trial court found the pro per litigant’s conduct so egregious that it prohibited him from communicating with the represented defendant,” the trial court relied solely on Rule 2-100’s prohibition of communications between an attorney and a represented party.
On November 19, 2009, we issued an alternative writ of mandate, ordering the trial court to vacate its order or, in the alternative, show cause why a peremptory writ of mandate should not issue.
DISCUSSION
Zaffina argues that Rule 2-100 does not apply to him because (1) he is not a member of the bar and (2) he is pro. per.
Zaffina also argues that the trial court’s order interferes with his constitutional right to free speech. We need not address that issue because we conclude the order was improper for other reasons.
Target concedes that Rule 2-100 is not applicable to Zaffina because he is not a member of the bar. Target argues, however, that “the court should have the discretion to utilize the same standard as set forth in Rule 2-100 as a guideline to control the conduct of the pro per litigant.” It contends that a pro. per. litigant should be held to the same standard as an attorney.
1. Rule 2-100
The purpose of Rule 2-100 is to “preserve the attorney-client relationship from an opposing attorney’s intrusion and interference.’” (Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1198.) Rule 2-100 provides:
“(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.
“(B) For purposes of this rule, a ‘party’ includes:
“(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or
“(2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
“(C) This rule shall not prohibit:
“(1) Communications with a public officer, board, committee, or body; or
“(2) Communications initiated by a party seeking advice or representation from an independent lawyer of the party’s choice; or
“(3) Communications otherwise authorized by law.”
As pertinent here, the discussion following Rule 2-100 provides: “Rule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation, and nothing in the rule prevents a member from advising the client that such communication can be made. Moreover, the rule does not prohibit a member who is also a party to a legal matter from directly or indirectly communicating on his or her own behalf with a represented party. Such a member has independent rights as a party which should not be abrogated because of his or her professional status. To prevent any possible abuse in such situations, the counsel for the opposing party may advise that party (1) about the risks and benefits of communications with a lawyer-party, and (2) not to accept or engage in communications with the lawyer-party.” (Rule 2-100, discussion, italics added.)
2. Rule 2-100 Does Not Govern Zaffina
Target concedes that Rule 2-100 is not applicable to Zaffina. Specifically, Target states, “real party in interest is not arguing that Rules of Professional Conduct, Rule 2-100 is applicable to the petitioner; since the petitioner is not a member of the bar it does not apply to him.”
Equally important, by its own terms Rule 2-100 would not apply to Zaffina even if he were a member of the bar. Rule 2-100 expressly exempts from its prohibition on contacting a represented party attorneys who are themselves parties to the action. The rule does not “prohibit a member who is also a party to a legal matter from directly or indirectly communicating on his or her own behalf with a represented party.” (Rule 2-100, discussion.) The reason for allowing communication between a nonrepresented party and a represented party is that “[s]uch a member has independent rights as a party which should not be abrogated because of his or her professional status.” (Rule 2-100, discussion.) Thus, Rule 2-100 does not apply to attorneys “acting on their own behalf” and would not prevent Zaffina -- even were he a member of the bar -- from writing to Target officials. (Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2009) ¶ 8:368; 1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 423, p. 537; ING Bank, fsb v. Fazah (E.D. Cal. Nov. 16, 2009, Civ. S-09-1174 WBS EFB PS) 2009 U.S.Dist. Lexis 106682.)
The Restatement Third of the Law Governing Lawyers, section 99, is similar to Rule 2-100. Under the Restatement, a lawyer representing a client may not communicate with another party on the subject matter of the representation unless “the lawyer is a party and represents no other client in the matter.” (Rest.3d Law Governing Lawyers, § 99, subd. (1)(b).) Comment (e) to section 99 provides: “A lawyer representing his or her own interests pro se may communicate with an opposing represented nonclient on the same basis as other principals....” (Rest.3d Law Governing Lawyers, § 99, com. e.)
3. Allowing Zaffina to Communicate with Target Does Not Hold Him to a Different Standard Because of His Status as a Pro. Per. Litigant
The crux of Target’s argument and the principal rationale underlying the trial court’s order is that a pro. per. litigant should not be treated differently from an attorney. That general principle is well established. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [“A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.”]; (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 [“Pro per litigants are held to the same standards as attorneys.”].) One court has suggested that at least some rules of professional conduct may apply to pro. per. litigants. (Ibid. [finding “no reason” why rules of professional conduct prohibiting attorneys from intentionally misleading a court should not apply to pro. per. litigants].) However, the observation is inapplicable here, because Rule 2-100 does not prohibit a lawyer representing himself or herself from communicating directly with the opposing party, even where the opposing party is represented. Thus, allowing Zaffina to communicate with Target does not result in different treatment of a pro. per. litigant and an attorney.
We do not hold that a court may never prohibit communications with represented parties. In Hernandez v. Vitamin Shoppe Industries, Inc. (2009) 174 Cal.App.4th 1441, 1454-1460, the court upheld the issuance of an injunction against a member of the bar who sent misleading letters in violation of Rule 2-100 to represented members of a class. Here, however, Target has not demonstrated Zaffina violated Rule 2-100 or any other statute. Accordingly, the order prohibiting Zaffina from contacting Target was improper.
In addition to relying on Rule 2-100, Target cites Code of Civil Procedure section 128, subdivision (a), which provides: “Every court shall have the power to... [¶]... [¶]... 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.” Other than quoting the statute, Target makes no argument as to how the statute applies in this particular case. Nor did the trial court rely on that statute in prohibiting Zaffina from communicating with Target.
DISPOSITION
The petition for a writ of mandate is granted. Let a writ of mandate issue, directing the Superior Court to vacate its order granting the motion of real party in interest to prohibit petitioner from communicating directly with real party in interest and to issue a new and different order denying the motion. Zaffina shall recover costs incurred in this writ proceeding.
We concur: EPSTEIN, P. J. SUZUKAWA, J.