Judge: Audra Mori, Case: 21STCV39856, Date: 2022-09-20 Tentative Ruling

Case Number: 21STCV39856    Hearing Date: September 20, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Yolanda Vargas Diaz (“Plaintiff”) filed this action against Defendant Costco Wholesale Corporation (“Defendant” or “Costco”) for injuries relating to Plaintiff’s alleged slip and fall at Defendant’s store located at 12530 Prairie Ave, Hawthorne, California.  Plaintiff alleges that while she was walking near a gasoline pump within the subject premises, she slipped on an unknown substance and fell. 

At this time, Defendant moves to disqualify Downtown L.A. Law Group, LLP (“DTLA Law Group”) from its representation of Plaintiff due to a conflict of interest concerning DTLA Law Group attorney Anthony Werbin (“Werbin”), who Defendant asserts was previously an attorney for Defendant that defended Costco in numerous personal injury lawsuits in Southern California.  Plaintiff opposes the motion, and Defendant filed a reply.[1]

2. Motion to Disqualify Counsel (Successive Representation)

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.) 

            In ruling on a motion to disqualify, the court should weigh: (1) the party's right to counsel of choice; (2) the attorney's interest in representing a client; (3) the financial burden on a client of change of counsel; (4) any tactical abuse underlying a disqualification motion; and (5) the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel. (Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126.)  Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. (Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113.)

            Concerning an attorney’s ethical duties to a former client, California Rules of Professional Conduct, rule 1.9 provides in part:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's* interests are materially adverse to the interests of the former client unless the former client gives informed written consent.*

(b) A lawyer shall not knowingly* represent a person* in the same or a substantially related matter in which a firm* with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person;* and

(2) about whom the lawyer had acquired information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter;

unless the former client gives informed written consent.*

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm* has formerly represented a client in a matter shall not thereafter:

(1) use information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 acquired by virtue of the representation of the former client to the disadvantage of the former client except as these rules or the State Bar Act would permit with respect to a current client, or when the information has become generally known;* or

(2) reveal information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 acquired by virtue of the representation of the former client except as these rules or the State Bar Act permit with respect to a current client.

“‘It is well settled that an attorney is prohibited from doing either of two things after severing a relationship with a former client. . . . He may not do anything which will injuriously affect his former client in any manner in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.’”  (In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 562 (quoting People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, 155) (internal quotation marks omitted).)  “The purpose of the rule is to protect both confidential communications and the enduring confidential relationship between attorney and client.”  (Id.) 

“In successive representation cases, disqualification of counsel is warranted under two situations: (1) the attorney in fact has adverse confidential information or (2) the attorney's acquisition of confidential information is presumed because the prior and present cases are substantially related.”  (Beltran v. Aven Products, Inc. (C.D. Cal. 2012) 867 F.Supp.2d 1068, 1077, citing H.F. Ahmanson & Co. v. Salomon Bros., Inc. (1991)229 Cal.App.3d 1445, 1452, and Faughn v. Perez (2006) 145 Cal.App.4th 592, 603.) 

The law states that “[d]isqualification 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.)  Furthermore, “[w]here … the potential conflict arises from an attorney's successive representation of clients with potentially adverse interests, and the primary value at stake is therefore client confidentiality, the correct legal standard generally requires disqualification of the attorney if “the [former] client demonstrate[s] a “substantial relationship” between the subjects of the antecedent and current representations.’ [Citation.]”  (In re Charlisse C. (2008) 45 Cal.4th 145, 161 [emphasis in original]; see also Flatt v. Superior Court (1994) 9 Cal.4th 275, 283 [“[W]here a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client, the governing test requires that the client demonstrate a ‘substantial relationship’ between the subjects of the antecedent and current representations.”].)  Concerning confidential information, the 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.’”  (Id. at 1452.)

In applying the “substantial relationship” test, the court should consider three factors: “(1) factual similarities between the two representations, (2) similarities in legal issues, and (3) the nature and extent of the attorney's involvement with the case and whether he was in a position to learn of the client's policy or strategy.”  (Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1332.)  “The subject of a current representation is substantially related to the subject of a prior representation only if the issues are sufficiently similar to support a reasonable inference that the attorney in the course of the prior representation was likely to have obtained confidential information material to the current representation.”  (See Fremont Indemnity Co. v. Fremont General Corp. (2006) 143 Cal.App.4th 50, 67 [court concluded that disqualification “based on the prior representation of a party in a substantially related matter is not warranted”].)

“Where the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed and disqualification of the attorney's representation of the second client is mandatory; indeed, the disqualification extends vicariously to the entire firm.”  (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283; see also In re Charlisse C., 45 Cal.4th at 161 [Through the rule of “vicarious disqualification,” this rule has been extended to require disqualification of a disqualified attorney's entire law firm].) 

“However … 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.”  (California Self-Insurers’ Security Fund v. Superior Court (2018) 19 Cal.App.5th 1065, 1076.)  “ ‘We do not doubt that vicarious disqualification is the general rule, and that we should presume knowledge is imputed to all members of a tainted attorney's law firm. However, we conclude 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.’ [Citation.]”  (Ibid.) 

Thus, although it is “firmly established that where the attorney is disqualified from representation due to an ethical conflict, the disqualification extends to the entire firm,” there is a “recognized ‘limited exception to this conclusive presumption in the rare instance where the lawyer can show that there was no opportunity for confidential information to be divulged.’ … ‘[T]o apply the remedy of disqualification ‘when there is no realistic chance that confidences were disclosed would go far beyond the purpose’ of the substantial relationship test.’ ”  (Goldberg v. Warner/Chappell Music, Inc. (2005) 125 Cal.App.4th 752, 760.) 

Here, Defendant asserts that Werbin is an attorney who formerly represented Costco and obtained confidential and privileged information by virtue of his prior representation of Costco.  Defendant contends that DTLA Law Group did not implement an ethical wall screening off Werbin from Costco prior to accepting representation of Plaintiff in this action, and that attorneys from DTLA Law Group have already been deemed to be conflicted out of representing other plaintiffs in personal injury matters due to this conflict, which is imputed to DTLA Law Group.  Defendant specifically asserts that prior to joining DTLA Law Group, Werbin was counsel for Costco on 21 cases from July 5, 2017 to January 16, 2020, while working for the law firm of Manning & Kass, Ellrod, Ramirez, Trester LLP (“Manning & Kass”).  Defendant contends that Werbin’s representation of Defendant involved matters relating to personal injury substantially similar to the premises liability claims made by Plaintiff in this action, and that Werbin was one of Defendant’s trial counsel in the case of Guo Jun Chen v. Costco Wholesale Corporation, Case No. BC654699, which went to trial on May 29, 2019. 

Defendant attests that between 2017 and 2020, Werbin billed 1,195 hours of time working on Costco matters, and that Werbin handled virtually every aspect of Costco files, including but not limited to, “developing strategy, communicating with Costco employees as well as its claims administrator Gallagher Bassett, reviewing confidential and privileged documents, preparing responses to discovery, preparing witnesses to testify at depositions and defending numerous depositions of Costco employees, developing litigation strategy, and filing motions for summary judgment.”  (Mot. at p. 1-2:24-1.)  Additionally, Defendant asserts that Werbin was an active participant in a day-long California Defense Counsel Conference that Costco held for its panel of defense attorneys in California in order to discuss California litigation and exchange information and strategies.  Defendant avers that Werbin clearly obtained confidential, proprietary, and privileged information on Costco’s litigation strategy, and that while Werbin is not currently counsel of record for Plaintiff in this matter, his conflict is imputed to DTLA Law Group and cannot be remedied by the imposition of an ethical wall.  Defendant argues that DTLA Law Group’s continued representation of Plaintiff threatens the fairness of these proceedings and undermines the integrity of the judicial process.

In opposition, Plaintiff contends that Werbin is not assigned counsel on this case, and that Manning & Kass, Werbin’s prior law firm, is not representing Defendant in this matter.  Plaintiff further asserts that Werbin has never worked for McNeil, Tropp & Braun, LLP, who is Costco’s defense counsel in this matter, and that it has been approximately two and a half years since Werbin began working at DTLA Law Group.  Plaintiff contends that Werbin does not have any confidential or protected information directly related to this action, and that DTLA Law Group has implemented a firewall to avoid dissemination of potentially confidential information.  In addition, Plaintiff contends that Werbin has not consulted, instructed or advised any other attorney or staff member of DTLA in regard to any aspect of a Costco case being handled by DTLA Law Group. 

Defendant, in reply, argues that Werbin communicated with Defendant’s claims handler about the status and strategy of its cases, and that Werbin learned of Costco’s confidential and privileged information.  Defendant asserts it has not waived its right to seek disqualification, and that DTLA Law Group failed to effectively shield Werbin from Costco matters until after an adverse ruling. 

As an initial matter, the Court notes that both Defendant and Plaintiff have attached various rulings concerning other trial court and federal court to their respective motion and opposition concerning motions to disqualify counsel brought by Defendant to disqualify DTLA Law Group as the attorney of record for the plaintiffs in those proceedings.  These rulings are not binding on this Court. 

            In arguing that DTLA Law Group should be disqualified because Werbin’s representation of Costco is substantially related to this action, Defendant submits the declaration of Zois Johnston (“Johnston”), its Director of Claims, who attests that Werbin represented Defendant in 21 cases from July 5, 2017 to January 16, 2020, while employed with Manning & Kass.  (Mot. Johnston Decl. ¶ 2.)  Johnston states that Werbin’s representation of Costco involved matters relating to personal injuries, including trip and fall and slip and fall cases.  (Id. at ¶ 3.)  In addition, Johnston attests that Werbin served as one of Costco’s trial attorneys in the personal injury action of Guo Jun Chen v. Costco Wholesale Corporation, which went to trial on May 29, 2019.  (Id. at ¶ 4.)  Defendant further submits copies of various complaints involving slip and fall claims filed against Costco for which Costco asserts Werbin was Costco’s defense counsel.  (Mot. Exhs. C, E, and G.) 

According to Flatt, a “substantial relationship” exists whenever the “subjects” of the prior and the current representations are linked in some rational manner. (Ibid.) In the lexicon of the law, the words “subject” and “subject matter” mean more than the strict facts, claims, and issues involved in a particular action.

. . .

We therefore ascribe to the word “subjects” (Flatt, supra, 9 Cal.4th at p. 283, 36 Cal.Rptr.2d 537, 885 P.2d 950) a broader definition than the discrete legal and factual issues involved in the compared representations. We consider the “subject” of a representation as including information material to the evaluation, prosecution, settlement or accomplishment of the litigation or transaction given its specific legal and factual issues. Thus, successive 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.)

(Jessen v. Hartford Cas. Ins. Co., supra, 111 Cal.App.4th at 711-13 [emphasis added].)

Defendant contends that Werbin represented it in matters relating to personal injuries substantially similar to the premises liability claims made by Plaintiff in this action.  However, the Court has reviewed the evidence submitted by Defendant, namely the complaints filed in various other actions, and while the other actions do involve slip and fall claims, none concern Defendant’s store at issue in this action.  Further, Plaintiff’s complaint in this action alleges, “As Plaintiff was walking near a gasoline pump within the subject premises, suddenly and without warning, Plaintiff slipped on an unknown substance on the floor and fell violently to the floor, causing Plaintiff to sustain the serious injuries and damages described below.”  (Compl. ¶ 8.)  None of the complaints submitted by Defendant involve an alleged slip and fall near a gasoline pump.  Defendant submits no evidence concerning the facts or claims involved in the Guo Jun Chen v. Costco Wholesale Corporation case that Werbin took to trial.  Accordingly, other than being a personal injury case, Defendant does not show this matter is similar to the Guo Jun Chen v. Costco Wholesale Corporation.  Thus, while Defendant’s evidence shows there may be similar legal issues between this matter and the previous cases Werbin was involved in handling, Defendant does not point to specific factual allegations, other than the broad allegations in the other complaints, showing that this case is substantially related to the subject of any of Werbin’s prior representations of Costco.  (Adams, 86 Cal.App.4th at 1332.) 

Although Defendant does not demonstrate there is a substantial factual relationship between this case and Werbin’s prior representations of Defendant, Costco may still demonstrate that the nature and extent of Werbin’s prior representation of Costco put him in a position to learn of Costco’s relevant policies or strategy, and moreover, if relevant confidential information was actually provided from Costco to Werbin.  (See Jessen v. Hartford Cas. Ins. Co., supra, 111 Cal.App.4th at 711 [“[T]he court must assess whether the attorney was positioned during the first representation so as to make it likely the attorney acquired confidential information relevant to the current representation, given the similarities or lack of similarities between the two.”]; see also Adams, 86 Cal.App.4th at 1332.)

However, “Possession of confidential information will not be presumed from the mere fact counsel once represented the opposing party.”  (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 301 [footnote omitted].)  An attorney, generally, may act adversely to a former client in an unrelated matter, and without the use of confidential information acquired while representing the former client, (Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573-74), and thus nothing prohibits an attorney “from accepting employment adverse to a former client if the matter has no relationship to confidential information acquired by reason of or in the course of employment by the former client.”  (Goldstein v. Lees (1975) 46 Cal.App.3d 614, 619.)  To create a conflict requiring disqualification, “the information acquired during the first representation [must] be ‘material’ to the second; that is, it must be found to be directly at issue in, or have some critical importance to, the second representation.”  (Farris v. Fireman's Fund Ins. Co. (2004) 119 Cal.App.4th 671, 680.) 

Plaintiff does not dispute that Werbin represented Costco in 21 cases from July 2017 to January 2020, or that Werbin billed 1,195 hours of time working on Costco matters during this period.  Regarding whether Werbin learned any confidential information pertaining to Defendant during his representations, Johnston attests:

While serving as Costco's attorney, Werbin handled virtually every aspect of Costco's file, which included, but was but not limited to, developing strategy, communicating with Costco employees as well as its claims administrator Gallagher Bassett, reviewing confidential and privileged documents, preparing responses to discovery, preparing witnesses to testify at depositions and defending numerous depositions of Costco employees, and developing litigation strategy.

In connection with his work for Costco, Werbin was privy to Costco's prelitigation strategies, case handling procedures, attorney-client communications, confidential and proprietary information concerning Costco' s operations, confidential client documentation, policies and procedures, and trade secrets.

(Mot. Johnston Decl. ¶¶ 5-6.)  Furthermore, Costco asserts that Werbin “obtained confidential, proprietary, and privileged information on Costco’s litigation strategy” by actively participating in a daylong conference for Costco’s attorneys.  (Mot. at p. 2:15-16.)  Johnston states it held the conference “for its panel of defense attorneys in California in order to discuss California litigation, convey information, and share defense tools and strategies among its defense counsel.”  (Mot. Johnston Decl. ¶ 7.)  Following the conference, Werbin sent an email to the panel acknowledging “discuss[ing] various defense tools and strategies.”  (Mot. Exh. B.)  Defendant asserts Werbin specifically discussed dealing with claims that Costco had constructive notice of allegedly hazardous conditions in premises liability cases.  (Mot. Tropp Decl. ¶ 7.) 

Plaintiff, however, argues that Defendant’s vague contention that Werbin gained insider knowledge of Costco’s handling of person injury/premises liability matters is not sufficient to establish that he was actually exposed to confidential information that would be material to this matter.  Plaintiff contends that Werbin being exposed to Costco’s “playbook” information does not warrant disqualification.  Plaintiff further asserts that billing 1,195 hours over a three-year period and attendance at a conference are not sufficient to justify disqualification in this case. 

An attorney’s “exposure to playbook information in prior … cases” is insufficient to disqualify the attorney without any showing of the information’s materiality to current representation.  (See Khain v. Ford Motor Co. (2013) 215 Cal.App.4th 916, 922.) 

“To create a conflict requiring disqualification, … the information acquired during the first representation [must] be “material” to the second; that is, it must be found to be directly at issue in, or have some critical importance to, the second representation.”  (Farris, 119 Cal.App.4th at 680.)  “Thus, for example, the attorney's acquisition during the first representation of general information about the first client's ‘overall structure and practices’ would not of itself require disqualification unless it were found to be ‘material’—i.e., directly in issue or of critical importance—in the second representation. [Citation] The same is true about information such as the first client's ‘litigation philosophy’ or ‘key decision makers.’”  (Ibid.)  Consequently, general playbook information can warrant disqualification if the information is material to the second representation. 

Costco specifically contends that “Werbin’s prior Costco cases focused on Costco’s policies and procedures regarding maintenance, internal best practices, and inspections and floor walks – all of which are likely to be explored in the present case.”  (Mot. at p. 9:18-20.)  Specifically, Defendant attests that its policies, procedures and methods of inspection that were at issue in the prior cases Werbin handled are at issue in this action, including the issue of constructive notice, which is in dispute and of which Werbin has knowledge of regarding private and confidential information directly relevant here.  (Id. Tropp Decl. ¶ 9.)

Although Plaintiff argues that Werbin has only playbook information concerning Costco, Costco’s evidence shows that the information is directly relevant to the current case.  Werbin’s knowledge of Costco’s policies, procedures and methods of maintenance and inspections, in addition to Defendant’s “litigation strategies, case handling procedures, attorney-client communications, confidential and proprietary information concerning Costco' s operations, confidential client documentation, policies and procedures, and trade secrets,” are confidential and material to this litigation.  (See Cal. Rules of Professional Conduct, Rule 1.9 comment 1 [“The lawyer may not (i) do anything that will injuriously affect the former client in any matter in which the lawyer represented the former client, or (ii) at any time use against the former client knowledge or information acquired by virtue of the previous relationship.”].)

The Court must next address whether Werbin’s conflicts are imputed to DTLA Law Group.  Although disqualification is generally extended vicariously to the entire law firm, disqualification is not absolute and may be rebutted if the evidence shows that an ethical wall can prevent the sharing of confidential information.  (See Kirk, 183 Cal.App.4th at 809-10; see also Goldberg v. Warner/Chappell Music, Inc. (2005) 125 Cal.App.4th 752, 755 [“an attorney's presumed possession of confidential information concerning a former client should not automatically cause the attorney's former firm to be vicariously disqualified where the evidence establishes that no one other than the departed attorney had any dealings with the client or obtained confidential information…”].)  “Once the moving party in a motion for disqualification has established that an attorney is tainted with confidential information, a rebuttable presumption arises that the attorney shared that information with the attorney's law firm. The burden then shifts to the challenged law firm to establish ‘that the practical effect of formal screening has been achieved.’ ”  (Kirk, 183 Cal.App.4th at 809-10, footnote omitted.) 

The specific elements of an effective screen will vary from case to case, although two elements are necessary: First, the screen must be timely imposed; a firm must impose screening measures when the conflict first arises. It is not sufficient to wait until the trial court imposes screening measures as part of its order on the disqualification motion. (Klein v. Superior Court, supra, 198 Cal.App.3d at pp. 906, 913–914, 244 Cal.Rptr. 226; see also Hitachi, Ltd. v. Tatung Co. (N.D.Cal.2006) 419 F.Supp.2d 1158, 1165 [“The time to have moved the matter [to another office] would have been when the ethical conflict was discovered, not after losing a motion to disqualify.”].) Second, it is not sufficient to simply produce declarations stating that confidential information was not conveyed or that the disqualified attorney did not work on the case; an effective wall involves the imposition of preventive measures to guarantee that information will not be conveyed. (SpeeDee Oil, supra, 20 Cal.4th at pp. 1142, 1151–1152 & fn. 5, 86 Cal.Rptr.2d 816, 980 P.2d 371.) “To avoid inadvertent disclosures and establish an evidentiary record, a memorandum should be circulated warning the legal staff to isolate the [tainted] individual from communications on the matter and to prevent access to the relevant files.”

“The typical elements of an ethical wall are: [1] physical, geographic, and departmental separation of attorneys; [2] prohibitions against and sanctions for discussing confidential matters; [3] established rules and procedures preventing access to confidential information and files; [4] procedures preventing a disqualified attorney from sharing in the profits from the representation; and [5] continuing education in professional responsibility.” …

(Id. at 810-11, footnote omitted.) 

            In this case, the information Werbin obtained from Costco is material to this litigation.  In arguing that Werbin’s knowledge of that information should not be imputed to DTLA Law Group, Plaintiff argues that Werbin has been shielded from participating in any case involving Costco, that no Costco cases have been assigned to Werbin or his team, that Werbin has no supervisory powers over the attorneys involved in Costco litigation, and that Werbin does not benefit financially from or share in the profits of Costco cases.  Further, Plaintiff asserts that DTLA Law Group has recently implemented more stringent firewalls concerning the sharing of files in its law firm.  DTLA Law Group’s Human Resources Manager and Administrative Director provides that DTLA Law Group made a software switch in December 2021 such that DTLA Law Group employees are unable to access any file for a matter they are not assigned to, so Werbin is not able to access the file for this action.  (Opp. Rezkallah Decl. ¶¶ 3-5.)

            However, Plaintiff filed this action on October 29, 2021, and thus, DTLA Law Group’s software change was not instituted until at least one month after Plaintiff commenced this action.  Plaintiff does not otherwise describe any ethical walls in place at DTLA Law Group or additional preventative measures that establish that Werbin was timely screened from disclosing confidential information to other attorneys at DTLA Law Group.  (See Cal. Rules of Prof. Conduct, Rue 1.10(a)(2).)  DTLA Law Group’s firewall was not timely or prophylactic, and therefore, fails to satisfy the required elements for an effective screen.  (Kirk, 183 Cal.App.4th at 810-11.) 

Plaintiff does not rebut the presumption that all knowledge is imputed to all members of a tainted attorney’s law firm.  Furthermore, Plaintiff’s argument that Defendant’s position would effectively prevent any former defense attorney from working as a plaintiff’s attorney in the future is unavailing.  Had DTLA Law Group timely instituted ethical walls and the imposition of prophylactic measures, the Court’s analysis in this respect might possibly differ.  Moreover, “[a] motion to disqualify a party's counsel raises several important interests. … ‘The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.’ ”  (California Self-Insurers’ Security Fund, 19 Cal.App.5th at 1071.)  Under the circumstances presented in this case, disqualification is appropriate.   

Based on the foregoing, Defendant Costco’s motion to disqualify DTLA Law Group is granted. 

DTLA Law Group is disqualified from representing Plaintiff in this action.

Defendant 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 20^th day of September 2022