5DCA Oral Argument - 2026/06/16 - Jun 16, 2026

argument

5DCA Oral Argument - 2026/06/16

California Fifth District Court of Appeal 6h 45m 8 chapters transcribed 9 days ago official recording ↗

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What opening statements and appearances are made at the start of the oral argument?

4:10

Bye.

6:08

Thank you.

12:18

Bye.

Unknown 16:05

Good morning. Please be seated. Good morning.

Unknown 16:19

Call the matter of Munger-Hornefruit versus Dan Drake Enterprises. Please state your appearances. Good morning.

Howard Sagacer 16:27

Good morning, Justice Hill, Justice Pena, and Justice Harrell. My name is Howard Sagacer. I represent the appellate, Munger-Hornefruit.

Michael Stumpf 16:39

Good morning, Your Honor. Michael Stumpf with Borton Petrini for Dan Drake Enterprises, here with Rosemary Lewis, also with Borton Petrini.

Unknown 16:49

Thank you. You've requested each about 30 minutes. And did you wish to reserve some portion of that time, Mr.

Howard Sagacer 16:56

Saxer? Yes, I'd like to reserve 10 minutes if I could.

Unknown 16:59

Very well. We'll watch the clock and ask that you do the same. You have a clock on the podium. I would just note for all the parties that we have reviewed this case in detail and are very familiar with the facts. And we just ask that you keep that in mind during your argument. And with that, please proceed. Something's wrong with our microphone this morning, but thanks. Probably the best thing is just don't touch it.

Howard Sagacer 17:24

Yeah. I'm going to leave it alone. I think the facts here are not really in dispute. And because of that, I think the standard of review, it's very clear, is independent review, also sometimes known as an abuse of discretion here.

How does Howard Sagacer argue that the ethical wall was missing and why it matters?

Howard Sagacer 17:44

But briefly, I think the facts are that on July 17, 2023, uh lisa horton who was then a member of cygus or watkins and whelan took the deposition of one of the other side's witnesses she was actively involved in the litigation as of that date thereafter on january 5th 2024 defendants took the deposition of Munger Hordafruit's agronomist, who is also an in-house expert. And she defended that deposition and also asked numerous questions at the deposition. So this is not a case where you had an attorney, a research attorney, in the back room whose identity was not known to the other side. In fact, It's undisputed if you look at her declaration that during her interview with the Borton Petrini firm, she indicated that, yes, she was familiar with Mr. Stump.

Howard Sagacer 19:01

In fact, she had just recently sat across the table in a deposition with him. That should have triggered a red flag and a warning sign. The other thing that's uncontradicted, you have to read carefully, paragraph 9 of Rosemary Lewis's declaration, where she states kind of that, well, we didn't really solicit her. But what happened there is they weren't advertising for an open position. And a member of Borton Petrini invited Lisa Horton to submit a resume. uh that is seeking somebody out that is soliciting uh and you know that is undisputed uh what also is undisputed is that even though borton petrini is a well-known litigation firm they did not take any steps whatsoever to ensure that there was no ethical violation here

Howard Sagacer 20:06

I think the cases talk about having a timely and effective ethical wall. Here, there wasn't any. And the ethical wall is only applicable really when you have what I call the indirect conflict.

Unknown 20:27

Now when you say there wasn't any ethical wall, weren't there steps taken?

Howard Sagacer 20:34

After the fact. and belatedly. And so during the time when the ethical wall should have been in place, it wasn't. The ethical wall should have been put in place at the time of interviewing. Anytime a firm is interviewing another lawyer from the firm, the first step is you run a conflict. check to see what cases your firm has where you're adverse to the other firm. You do that before you interview the person. Because if you have a direct conflict, then you don't even want to go down that path. Because the law is very clear that when you have a direct conflict, no ethical wall will absolve the conflict. So here, the ethical wall wasn't in place at the time of interviewing. We have a big gap here, because the interview occurred in January.

Howard Sagacer 21:36

We don't have the exact date, but it was shortly after she defended the deposition. We have a gap until March 21st when she's given the offer. Again, no ethical wall put in place. Plenty of time to take a look at do your due diligence, which should have been done earlier, but it's not in place.