Judge: Anne Hwang, Case: 21STCV07961, Date: 2024-05-07 Tentative Ruling

Case Number: 21STCV07961    Hearing Date: May 7, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On March 1, 2021, Plaintiff Alfredo Huerta-Mondragon (“Plaintiff”) filed a complaint against Defendants Lyft, Inc., George Tharwt Shafik Mekhail, Atia Nada, and Does 1 to 50 for damages resulting from a motor vehicle accident. Plaintiff alleges that George Tharwt Shafik Mekhail was a driver employed by Lyft, Inc. (Complaint ¶ 5.)

Defendant Lyft, Inc. (“Defendant”) now moves to disqualify Quinn Graham and the law firm of Rafii & Associates, P.C., the firm that represents Plaintiff. Defendant argues that Quinn Graham previously represented Defendant in automobile accidents like the instant case and has received confidential information. Defendant argues that because Graham is disqualified, the firm Rafii & Associates is vicariously disqualified.

Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“Code of Civil Procedure section 128, subdivision (a)(5) gives courts the power to order a lawyer's disqualification…[A] trial court's decision concerning a disqualification motion will not be disturbed absent an abuse of discretion…’” (See DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 831-832.)¿¿ 

The duty of loyalty is at stake when an attorney’s representation of one client is adverse to the interests of another current client.¿(Flatt v. Superior Court (1994) 9 Cal.4th 275, 284.)¿“Disqualification in cases of successive representation is based on the prohibition against ‘employment adverse to a [. . .] former client where, by reason of the representation of the [. . .] former client, the [attorney] has obtained confidential information material to the employment.’”¿(See H.F. Ahmanson & Company v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1451.)¿¿ 

A former client need not establish that the attorney actually possesses confidential information to disqualify the former attorney.¿ (H.F. Ahmanson & Co., supra, 229 Cal.App.3d at 1452.)¿ “It is enough to show a ‘substantial relationship’ between the former and current representation.”¿ (Id.)¿ “It is the possibility of the breach of confidence, not the fact of an actual breach that triggers disqualification.”¿ (In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 563; H.F. Ahmanson & Co., supra, 229 Cal.App.3d at 1452.)¿¿¿ 

“[T]he attorney’s possession of confidential information will be presumed only when ‘a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation or the relationship of the attorney to his former client confidential information material to the current dispute would normally have been imparted to the attorney . . . .’”¿ (H.F. Ahmanson & Co., supra, 229 Cal.App.3d at 1454.)¿ Disqualification of the attorney from representing the second client is mandatory where the substantial relationship test is met and access to confidential information is presumed.¿ (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283.)¿ 

“[A] ‘substantial relationship’ exists whenever the ‘subjects’ of the prior and the current representations are linked in some rational manner.”¿ (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 711 (citing Flatt, supra, 9 Cal.4th at 283).)¿ The “subject” of a representation includes “information material to the evaluation, prosecution, settlement or accomplishment of the litigation or transaction given its specific legal and factual issues.”¿ (Id. at 712-13.)¿ “[S]uccessive representations will be ‘substantially related’ when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.”¿ (Id. at 713.)¿¿ 

“[W]hether disqualification of the entire firm is automatic is an open question.”¿ (California Self-Insurers’ Security Fund v. Superior Court (2018) 19 Cal.App.5th 1065, 1077.)¿ As was noted by the Court of Appeal in Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776 and discussed in California Self-Insurers’ Security Fund, the case law regarding whether vicarious disqualification is automatic and absolute is mixed.¿ (California Self-Insurers’ Security Fund, supra, 19 Cal.App.5th at 1075; Kirk, supra, 183 Cal.App.4th at 799.)¿ The Kirk Court summarized the history of the law of vicarious disqualification and found that Flatt did not create an absolute rule of vicarious disqualification and that “the state of the law is as initially expressed by the appellate courts: (1) a case-by-case analysis based on the circumstances present in, and the policy interests implicated by, the case; (2) tempered by the Henriksen [v. Great American Savings & Loan (1992) 11 Cal.App.4th 109] rule that vicarious disqualification should be automatic in cases of a tainted attorney possessing actual confidential information from a representation, who switches sides in the same case.”¿ (Kirk, supra, 183 Cal.App.4th at 800; California Self-Insurers’ Security Fund, supra, 19 Cal.App.5th at 1076 (quoting Kirk).)¿ The Kirk Court further indicated that vicarious disqualification is the general rule and that courts should presume knowledge is imputed to all members of a tainted attorney’s law firm, but that, “in the proper circumstances, the presumption is a rebuttable one, which can be refuted by evidence that ethical screening will effectively prevent the sharing of confidences in a particular case.’”¿ (Kirk, supra, 183 Cal.App.4th at 801; California Self-Insurers’ Security Fund, supra, 19 Cal.App.5th at 1076 (quoting Kirk).)¿ 

DISCUSSION

Defendant asserts that Quinn Graham (“Graham”) worked for Selman Breitman, LLP from May 2021 to December 2022, and at Hawkins Parnell & Young from January 2023 and August 2023. Defendant provides the declaration of Jerry C. Popovich, a current partner at Hawkins, Parnell, & Young who states that Graham worked on cases defending Defendant in automobile accidents. (Popovich Decl. ¶ 3–4.) During his representation, Graham interfaced regularly with Defendant’s in-house attorneys and employees, and obtained confidential information about Defendant’s internal defense strategies, evaluation methods, and processes in personal injury/automobile cases. (Id. ¶ 5.)

Graham started working for Rafii & Associates in September 2023. Defendant asserts that Rafii & Associates did not advise Defendant of this conflict and informed them in March 2024 that they would oppose a motion to disqualify. Defendant argues that no ethical screening measures could protect against sharing confidential information since Rafii & Associates consists of one office and eighteen attorneys. Defendant contends that the close proximity of the office and the fact that Graham was not immediately screened from this matter upon joining the firm, demonstrate that the issue cannot be mitigated.

In opposition, Plaintiff does not dispute the majority of the facts above but argues they do not establish a conflict. Plaintiff argues that Defendant has not shown that a substantial relationship exists between this matter and Graham’s previous cases. Plaintiff also contends that information about Defendant’s general litigation strategies is not enough to disqualify Graham. Even if a conflict exists with Graham, Defendant argues the firm should not be vicariously disqualified because they timely screened him. (Opp., 10.)

Plaintiff sets forth the declaration of Quinn D. Graham, who declares under penalty of perjury that before joining Rafii and Associates, he was advised that he would be screened from all cases involving Defendant and would not be permitted to access case files or speak to any employees about such cases. (Graham Decl. ¶ 8, 10.) He states that upon working, he was shown the team that handles cases involving Defendant and was instructed not to discuss such cases with them. (Id. ¶ 11–12.) Graham states he works remotely 90% of the time, but when he is in the office, does not work in close proximity to staff members working on Defendant’s cases. (Id. ¶ 13.) He also has not had direct access or permission to access the electronic or physical case files regarding Defendant and has not provided any material information to attorneys or staff working on the instant matter. (Id. ¶ 17–21.)

The declaration of Daniel Rafii, managing attorney at Rafii & Associates, confirms the screening procedures described above for Graham and notes his desk is located in a suite that is separate from the area where the team handling Defendant’s cases is located. (Rafii Decl. ¶ 11.)

            Based on the evidence the Court finds that a substantial relationship exists between this matter and Graham’s prior cases representing Defendant. Graham previously represented Defendant in automobile/ personal injury cases similar to this case, obtaining knowledge about Lyft’s application. Additionally, Plaintiff does not dispute that Graham had communications with Defendant’s in-house counsel regarding defense strategies and information specific to car accident cases such as this one. The Court concludes that Graham was involved with and exposed to earlier representation of Defendant, such that confidential information material to this lawsuit would normally have been imparted to him. Therefore, Defendant has shown that Graham is disqualified from working on the instant case. However, Graham is not representing Plaintiff on this case. Therefore, the remaining issue is whether Graham’s knowledge is imputed to Rafii & Associates.

While Defendant correctly notes that under the California Rules of Professional Conduct, rule 1.10(a)(2)(iii), written notice is required to inform a former client of screening procedures, it does not cite to a case requiring disqualification of the entire firm due to such a violation, where adequate screening procedures have been shown. While a failure to adhere to the rules of professional conduct is a serious consideration, the remedy requested for such violation – disqualification of the entire firm – is significant. Here, the Court finds that the declarations of Quinn D. Graham and Daniel Rafii have rebutted the presumption that Graham’s knowledge has been imputed to the firm. The declarations show that Graham has been screened from this matter and all matters involving Defendant. Also, Graham is not alleged to possess any material information about the instant case. The Court therefore finds the procedures discussed in the Graham and Rafii declarations to be sufficient, since it appears they were implemented when Graham joined the firm.

Therefore, the motion to disqualify counsel is granted in part and denied in part. While Quinn D. Graham is disqualified from representing Plaintiff in this case, the screening procedures implemented do not support a disqualification of Rafii & Associates, P.C.

CONCLUSION AND ORDER

Therefore, the motion to disqualify is granted in part and denied in part.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.