Judge: Audra Mori, Case: 21STCV25871, Date: 2022-09-14 Tentative Ruling

Case Number: 21STCV25871    Hearing Date: September 14, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Genaro Hinojosa (“Plaintiff”) filed this action against Defendant Noel Rojas (“Defendant”) for damages arising from a motor vehicle accident. 

At this time, Plaintiff moves to disqualify defense counsel, Sarah Pavlik, Esq. (“Pavlik”) and McNeil, Tropp & Braun, LLP (“MTB”) from representing Defendant in this matter.  Defendant opposes the motion, and Plaintiff filed a reply.

Plaintiff asserts that in April 2022, Pavlik, who was then a plaintiffs’ attorney and member of the bar association Consumer Attorneys Association of Los Angeles (“CAALA”) and is currently an insurance defense attorney with MTB, accessed CAALA’s Work Product list serve that CAALA maintains only for current and active plaintiffs’ lawyer members.  Plaintiff asserts that in April 2022, Pavlik emailed Plaintiff’s counsel, Kenneth R. Shy (“Shy”), to ask him about his closing arguments in another matter Shy was handling.  Plaintiff asserts that Pavlik is still on the active member CAALA attorney directory, and thus, Pavlik continues to have access to Plaintiff’s CAALA list serve, which means that Pavlik was able to view posts by Shy regarding this case.  Plaintiff states that Shy has mentioned this case on the list serve on at least two occasions regarding legal strategy, and that based on Pavlik’s April 2022 email and communications in this case, it is highly likely that Pavlik had access to the list serve when Shy discussed this action with fellow CAALA members.  Plaintiff avers that because Shy has posted specific case information on a confidential list serve that is meant to be read and responded to only by current CAALA members, Pavlik now how access to Plaintiff’s case strategy and must be disqualified along with MTB. 

In opposition, Defendant asserts that Pavlik is not a current member of CAALA, does not have access to CAALA’s list serves, and was not a member of CAALA when Shy presumably made his two posts about the case in July 2021.  Defendant asserts that neither Pavlik nor MTB have ever represented Plaintiff in any matter, and that Plaintiff lacks standing to challenge Defendant’s selected counsel.  Further, Defendant argues that Pavlik was not exposed to and did not access any allegedly protected information Shy conveyed to other persons, and that hypothetical conflicts do not justify disqualification.  Defendant contends there was no reasonable opportunity for her to acquire any information from Shy because Pavlik was not a member when Shy likely made the posts, and she no longer has access since joining MTB. 

In reply, Plaintiff argues that Pavlik had access to the list serve after joining MTB, and that Pavlik has violated CAALA’s confidentiality rules.  Plaintiff contends he has standing to bring this motion, and that Pavlik breached a duty to preserve confidential information.  Plaintiff argues there is substantial evidence to suggest that confidential information was accessible by Pavlik. 

2. Motion to Disqualify Counsel

a. Standing

The court has inherent 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 manner pertaining thereto.  (CCP § 128(a)(5).)  This includes the power to disqualify counsel in appropriate cases.  (In re Complex Asbestos Litig. (1991) 232 Cal.App.3d 572, 575; In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 562 [“Disqualification of counsel may be ordered ‘when necessary in furtherance of justice. (Code Civ. Proc., § 128, subd. (a)(5).)’”].)  “… The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one's choice must yield to ethical considerations that affect the fundamental principles of our judicial process.”  (Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 791-792.) 

“Motions to disqualify counsel are especially prone to tactical abuse because disqualification imposes heavy burdens on both the clients and courts: clients are deprived of their chosen counsel, litigation costs inevitably increase and delays inevitably occur. As a result, these motions must be examined ‘carefully to ensure that literalism does not deny the parties substantial justice.’ [Citation] At the same time, we recognize that disqualification of counsel is necessary under certain circumstances, to protect the integrity of our judicial process by enforcing counsel's duties of confidentiality and loyalty. [Citations.]”  (City of Santa Barbara v. Superior Court (2004) 122 Cal.App.4th 17, 23 fn. omitted.) 

“Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. [Citation.] A ‘standing’ requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney. [Citations.]”  (Great Lakes Const., Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.)  Nevertheless, “Standing arises from a breach of the duty of confidentiality owed to the complaining party, regardless of whether a lawyer-client relationship existed.”  (DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832.)  “Thus, some sort of confidential or fiduciary relationship must exist or have existed before a party may disqualify an attorney predicated on the actual or potential disclosure of confidential information.”  (Great Lakes Const., Inc., 186 Cal.App.4th at 1356.) 

“[i]n California ‘where the ethical breach is “ ‘manifest and glaring’ ” and so “infects the litigation in which disqualification is sought that it impacts the moving party's interest in a just and lawful determination of [his or] her claims” [citation], a nonclient might meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest or other ethical violation.’ ”  (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204.)

In this case, Plaintiff argues that defense counsel must be disqualified because Pavlik is privy to Plaintiff’s strategies, work product, and confidential information, as Pavlik is on CAALA’s online list serve where Plaintiff’s counsel posted questions and engaged in discussions with other CAALA members.  Defendant argues that Plaintiff does not have standing to bring this motion because Plaintiff has no relationship with and was not a former client of MTB’s.  However, there are situations where non-clients may move to disqualify counsel.  (See e.g., DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832 [standing arises from a breach of the duty of confidentiality owed to the complaining party, regardless of whether a lawyer-client relationship existed]; Meza v. H. Muehlstein & Co., Inc. (2009) 176 Cal. App. 4th 969, 981 [disqualification based on interest in confidential attorney work product disclosed during the time attorney participated in joint defense efforts]; County of Los Angeles v. Superior Court (1990) 222 Cal. App. 3d 647, 658 [lawyer may be disqualified after improper contacts with an opposing party's expert witness]; People v. Peoples (1997) 51 Cal.App.4th 1592, 1599 [defense attorney with direct familial connections to victim, witnesses and the defendant disqualified on court's own motion].) 

Accordingly, Plaintiff may move to disqualify Defendant’s counsel if Plaintiff establishes that Pavlik or MTB is privy to Plaintiff or Plaintiff’s counsel’s confidential information such that disqualification is warranted to protect the integrity of the judicial process.

            b. Disqualification- Confidences of Adverse Party

“The classic disqualification case involves the attorney switching sides, ‘so that an attorney who once represented ‘A’ now seeks to represent ‘B’ in a matter materially related to the original representation.’ [Citation.] Disqualification in such a case is necessary to safeguard the attorney-client relationship. ‘A client should not fear that confidences conveyed to his attorney in one action will return to haunt him in a later one.’ [Citation.]”  (Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 219.) 

“In other cases, counsel may be disqualified where counsel has obtained the secrets of an adverse party in some other manner, such as where counsel's newly hired paralegal had access to the adversary's confidences while working for opposing counsel [Citation], or where counsel obtained confidential information from an expert with whom opposing counsel had consulted [Citations].”  (Ibid.)  “Disqualification is warranted in these cases, not because the attorney has a direct duty to protect the adverse party's confidences, but because the situation implicates the attorney's ethical duty to maintain the integrity of the judicial process.”  (Ibid.)

“It is also true, however, that mere exposure to the confidences of an adversary does not, standing alone, warrant disqualification. ‘Such a rule would nullify a party's right to representation by chosen counsel any time inadvertence or devious design put an adversary's confidences in an attorney's mailbox.’ [Citation].”  (Ibid.)

Here, Plaintiff asserts that Pavlik is privy to Plaintiff’s strategies, work product, and confidential information based on Plaintiff’s counsel’s postings on CAALA’s list serve.  Plaintiff asserts that the list serve is confidential and meant to be read and responded to only by current CAALA members that must certify they only practice as civil plaintiffs’ attorneys and do not represent civil defendants.  Plaintiff states that CAALA is limited to plaintiffs’ civil attorneys, staff, paralegals, and law students.  Further, Plaintiff states that CAALA has a “CAALA List Serve Rules” and confidentiality agreement.  (Mot. Ghenchu ¶ 4.) 

This case does not fit the pattern of the case law cited above.  Nonetheless, in similar cases involving an attorney obtaining confidential information from a third party, such as an expert witness, the party seeking disqualification has the burden to show that the third party possesses confidential information materially related to the proceedings before the court.  (Roush, 150 Cal.App.4th at 220.)  Consequently, “the court should be provided with the nature of the information and its material relationship to the proceeding.”  (Ibid., internal quotations omitted.)  Further, Plaintiff must show that Plaintiff’s counsel shared confidential information with Pavlik, and that Plaintiff’s counsel did not waive the claim of confidentiality by sharing information with a third party.  (Id. at 220-21.) 

            Plaintiff claims that Plaintiff’s counsel, Shy, posted to “other CAALA members discussing the bad faith/improper tender of the policy limits on this catastrophic injury case.”  (Mot. at p. 6:16-18.)  While Plaintiff asserts that these communications were confidential, there is no assertion that Plaintiff Hinojosa was involved in or even knew of the communications or that the communications were otherwise made in the attorney-client context.[1]  Moreover, Plaintiff cites no caselaw to show that these communications posted on a far-reaching list-serve constitute confidential communications. 

Furthermore, to the extent that Plaintiff contends the postings contained Plaintiff’s counsel’s work product, “[a] writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.”  (CCP § 2018.030(a).)  It is not enough for a party to assert that something is protected as privileged, but rather the burden is on the party asserting the privilege to prove the preliminary facts that show a privilege or protection applies.  (See Mize v. Atchison, T. & S. F. ry. Co. (1975) 46 Cal.App.3d 436, 447.)  “Waiver of work product protection, though not expressly defined by statute, is generally found under the same set of circumstances as waiver of the attorney-client privilege—by failing to assert the protection, by tendering certain issues, and by conduct inconsistent with claiming the protection.”  (McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.4th 1229, 1239.) 

Shy’s declaration submitted with the motion provides no information specifically identifying what information the postings about this case contained.  Plaintiff argues only that the post contained questions and responses by other CAALA attorneys regarding Defendant’s conduct in this action.  There is no evidence showing that the posts reflected Shy’s impressions, conclusions, opinions, legal research, or theories on this matter.  Additionally, Plaintiff provides no information concerning how many members have access to the information Shy posted, and Plaintiff seemingly acknowledges that any attorneys, their staff, paralegals, and law students that are CAALA members with access to the list serve could view the postings.  Defendant, in opposition, asserts that there are 3,100 CAALA members, and that CAALA does not require an attorney to exclusively represent plaintiffs, as CAALA itself provides for an opposing counsel agreement showing members can represent adverse parties.  (Opp. Exh. D.)  Although Plaintiff argues that all CAALA Work Product posts are affirmatively privileged material, Shy’s conduct of voluntarily posting questions to thousands of members, including non-attorneys, is inconsistent with a person claiming such information is protected or privileged.  (McKesson HBOC, Inc., 115 Cal.App.4th at 1239.)  Further, Plaintiff makes no effort to explain why disclosure of the allegedly confidential information was necessary to advance Plaintiff’s case, and so, the evidence is insufficient to find any information shared on the CAALA list serve retained its confidential character.  (See Roush, 150 Cal.App.4th at 224-25.) 

What is more, even in assuming that the Shy’s posts contained confidential information, Plaintiff provides no information concerning when Shy made the two postings concerning this case on the relevant list serve on CAALA’s website.[2]  Plaintiff provides only that Pavlik communicated with Shy about a different case in April 2022.  The email, essentially a networking email, does not reveal any confidential information shared by Shy and Pavlik.  Pavlik submits a declaration explaining that she joined CAALA in September 2021 to primarily look for employment opportunities that would provide trial experience, and that Pavlik started at MTB in late June 2022.  (Opp. Pavlik Decl. ¶¶ 3, 5.)  Pavlik avers she did not use the list serve from June 2022, which would have been the time Pavlik started with MTB, to August 2022, and that she had no idea the two posts existed until Plaintiff filed this motion.  (Id. ¶ 6.)  Pavlik attests that most of the posts on the list serve are written in a general nature unless specific case information is provided in the post, which the Court notes Shy does not assert was in either of the two alleged posts about this case.  (Id. at ¶ 9.)  Pavlik further attests she no longer has access to the list serve, she ceased all access to the list serve when she joined MTB, and that her CAALA membership has terminated.  (Id. at ¶¶ 10-11.)  Pavlik specifically states she never accessed or responded to either post.  (Id. at ¶ 16.) 

Defendant does not submit any evidence to show that Pavlik did in fact see either post.  The mere potential exposure of an adversary’s confidences, standing alone, does not warrant disqualification.  (Roush, 150 Cal.App.4th at 219.)  Plaintiff’s position would essentially mean that any of the thousands of CAALA members that had access to the list serve would be disqualified from representing adverse parties to Plaintiff’s counsel based on Shy’s posting questions to a list serve.  As Defendant argues, the contention that Pavlik obtained any information from Shy concerning this matter is merely hypothetical.  Plaintiff fails to demonstrate that Pavlik obtained any confidential information regarding Plaintiff or Plaintiff’s counsel such that Plaintiff would in any way be disadvantaged in this litigation or that otherwise implicates Pavlik’s ethical duty to maintain the integrity of the judicial process. 

Based on the foregoing, Plaintiff’s motion is denied. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 14^th day of September 2022