Judge: Blaine K. Bowman, Case: 37-2023-00030089-CU-PA-NC, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 11, 2024

01/12/2024  10:00:00 AM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  PI/PD/WD - Auto Motion Hearing (Civil) 37-2023-00030089-CU-PA-NC FANAI VS COSTCO WHOLESALE CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Disqualify Attorney of Record, 11/15/2023

The Motion to Disqualify Counsel brought by Defendant Costco Wholesale Corporation (Costco) is GRANTED.

The Requests for Judicial Notice brought by Costco are disposed as follows: Exhibit A (Complaint filed in Mark Shepherd v. Costco Wholesale Corporation, Los Angeles County Sup.

Ct. Case No. BC679163) – GRANTED (Evidence Code § 452(d)) Exhibit B (Points and Authorities in support of the Motion for Summary Judgement filed in Mark Shepherd v. Costco Wholesale Corporation, Los Angeles County Sup. Ct. Case No. BC679163) – GRANTED (Evidence Code § 452(d)) Exhibit C (Complaint filed in Guo Jun Chen v. Costco Wholesale Corporation, Los Angeles County Sup.

Ct. Case No. BC654699) – GRANTED (Evidence Code § 452(d)) Exhibit D (Points and Authorities in support of the Motion for Summary Judgement filed in Guo Jun Chen v. Costco Wholesale Corporation, Los Angeles County Sup. Ct. Case No. BC654699) – GRANTED (Evidence Code § 452(d)) Exhibit E (Complaint filed in Mae L. Howard v. Costco Wholesale Corporation, Los Angeles County Sup.

Ct. Case No. BC717875) – GRANTED (Evidence Code § 452(d)) Exhibit F (Points and Authorities in support of the Motion for Summary Judgement filed in Mae L.

Howard v. Costco Wholesale Corporation, Los Angeles County Sup. Ct. Case No. BC717875) – GRANTED (Evidence Code § 452(d)) Exhibit G (Complaint filed in Lorraine Fernandez v. Costco Wholesale Corporation, Los Angeles County Sup. Ct. Case No. BC688474) – GRANTED (Evidence Code § 452(d)) Exhibit H (Points and Authorities in support of the Motion for Summary Judgement filed in Lorraine Fernandez v. Costco Wholesale Corporation, Los Angeles County Sup. Ct. Case No. BC688474) – GRANTED (Evidence Code § 452(d)) Exhibit I (Complaints involving slip and fall claims filed against Costco in which Attorney Werbin was Costco's defense counsel) – GRANTED (Evidence Code § 452(d)) Exhibit J (Order on Hearing on Motion to Disqualify Counsel dated March 10, 2022, White-Martinez v. Costco Wholesale Corporation, Alameda County Sup. Ct. Case No. HG21106733) – GRANTED (Evidence Code § 452(d)) Although the Court may take judicial notice of the existence of court filings, it cannot accept the truth of their contents except for documents such as orders. (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.) Additionally, trial court decisions (Exhibit J) have no precedential value.

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3052541 CASE NUMBER: CASE TITLE:  FANAI VS COSTCO WHOLESALE CORPORATION [IMAGED]  37-2023-00030089-CU-PA-NC Factual and Procedural Background This is a personal injury case. Plaintiff Vanlalmawii Fanai (Plaintiff) alleges that on July 18, 2021, while she was walking at the Costco warehouse located at 1755 Hacienda Drive in Vista, California, Plaintiff 'stepped on an unmarked and/or unsecured chain and/or similar object causing her to trip and fall, thereby causing Plaintiff to endure severe injury and pain.' (ROA 1, Complaint, at p. GN-1.) The operative Complaint filed July 18, 2023 alleges causes of action for general negligence and premises liability.

On October 11, 2023, Costco answered the Complaint. (ROA 9.) On November 15, 2023, Costco filed the instant motion to disqualify Downtown L.A. Law Group (DTLA Law) and all associated attorney and non-attorney personnel from representing Plaintiff in this action. (ROA 13.) Analysis Costco seeks to disqualify DTLA Law on the grounds that prior to working for DTLA Law, Attorney Anthony Werbin (Attorney Werbin) represented Costco in 21 cases from July 5, 2017 to January 16, 2020 while working for the firm Manning & Kass, Ellrod, Ramirez, Trester LLP (Manning & Kass).

Costco argues there is a substantial relationship between Attorney Werbin's prior representation of Costco and this matter, Attorney Werbin possesses confidential information regarding Costco, and Attorney Werbin's conflict is imputed to DTLA Law.

In opposition, Plaintiff contends Costco has not provided sufficient evidence to establish Attorney Werbin's prior Costco cases were substantially related to the current case, Attorney Werbin was never provided with any confidential or proprietary information by Costco during his employment with Manning & Kass, and DTLA Law has set an effective ethical wall that rebuts the presumption of vicarious disqualification of the entire firm.

Waiver As a preliminary matter, Plaintiff's arguments that Costco has implicitly waived the conflict by delaying the filing of this motion to participate in settlement negotiations lack merit. Plaintiff provided no evidence that Costco provided knowing and informed consent to any concurrent representation, and the Court does not find that filing the instant motion four months after service of the Complaint is so unreasonable or prejudicial as to constitute waiver. (See Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 848 [two-year delay in bringing motion to disqualify was unreasonable].) Substantial Relationship 'Where the potential conflict is one that arises from the successive representation of clients with potentially adverse interests, the courts have recognized that the chief fiduciary value jeopardized is that of client confidentiality. Thus, where 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.' (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283, emphasis original.) '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.' (Id., emphasis original.) '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 Calendar No.: Event ID:  TENTATIVE RULINGS

3052541 CASE NUMBER: CASE TITLE:  FANAI VS COSTCO WHOLESALE CORPORATION [IMAGED]  37-2023-00030089-CU-PA-NC 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 Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 712-713, citations omitted.) 'To determine whether there is a substantial relationship between successive representations, a court must first determine whether the attorney had a direct professional relationship with the former client in which the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation.' (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847, citing Jessen, supra, 111 Cal.App.4th at pp. 710-711.) 'If the former representation involved such a direct relationship with the client, the former client need not prove that the attorney possesses actual confidential information. Instead, the attorney is presumed to possess confidential information if the subject of the prior representation put the attorney in a position in which confidences material to the current representation would normally have been imparted to counsel. (City and County of San Francisco, supra, 38 Cal.4th at p. 847, citations omitted.) Costco submits evidence that Attorney Werbin represented Costco in 21 cases, primarily defending Costco in personal injury actions involving slip-and-falls or trip-and-falls. Costco also submits evidence that Attorney Werbin's representation of Costco collectively spanned a period of approximately two and a half years (from July 5, 2017 to January 16, 2020), during which Attorney Werbin incurred over 1,195 billing hours. Costco also submits evidence that Attorney Werbin handled virtually every aspect of Costco's files and his representation of Costco in these matters included: developing litigation strategy; Costco's pre-litigation strategies and case handling procedures; discussions with Costco personnel and counsel about California litigation, defense tools, and strategy; communicating with Costco employees, as well as Costco claims administrator Gallagher Bassett; reviewing confidential and privileged documents; preparing discovery responses, preparing witnesses to testify at depositions; defending numerous depositions of Costco employees; substantive law and motion work; trial preparation and participation in trial through verdict in the Guo Jun Chen v. Costco Wholesale Corporation action; and Attorney Werbin's active participation in a day-long California Defense Counsel Conference that Costco held on March 19, 2019, for Costco's panel of defense attorneys in California to discuss California litigation, convey information, and share defense tools and strategies among its defense counsel.

Plaintiff does not dispute Attorney Werbin's previous representation of Costco. Based on the evidence presented, Attorney Werbin had a direct professional relationship with Costco and various Costco employees/personnel. Costco has established that the legal advice and services that Attorney Werbin provided to Costco in defending Costco in several personal injury cases were on legal issues closely related to the legal issues in this case. The subject of Attorney Werbin's representation of Costco involved negligence and premises liability issues related to slip-and-fall and/or trip-and-fall cases that necessarily included information that is material to Costco's evaluation and litigation of Plaintiff's general negligence and premises liability claims in this action, which are based on Plaintiff's alleged trip-and-fall at a Costco warehouse. (See Jessen, supra, 111 Cal.App.4th at pp. 712-713.) Contrary to Plaintiff's contentions, the above evidence is sufficient to establish a substantial relationship between Attorney Werbin's successive representations. The evidence establishes that Attorney Werbin acquired information about Costco in the various personal injury cases that could be used by Plaintiff against Costco in this case. The evidence shows that such information, including information derived from the day-long California Defense Counsel Conference on issues specific to Costco, goes beyond Costco's 'play-book.' Additionally, although Plaintiff argues Attorney Werbin did not obtain any confidential information, such argument is irrelevant. Under the authorities set forth above, because the representations are substantially related, Attorney Werbin's access to confidential information is presumed. Accordingly, disqualification of Attorney Werbin is warranted on this basis.

Vicarious Disqualification of DTLA Law Calendar No.: Event ID:  TENTATIVE RULINGS

3052541 CASE NUMBER: CASE TITLE:  FANAI VS COSTCO WHOLESALE CORPORATION [IMAGED]  37-2023-00030089-CU-PA-NC 'An attorney's conflict is imputed to the law firm as a whole on the rationale 'that attorneys, working together and practicing law in a professional association, share each other's, and their clients', confidential information.' ' (City and County of San Francisco, supra, 38 Cal.4th at pp. 847-84; see also Rules of Prof. Conduct, Rule 1.10(a).) '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. The showing must satisfy the trial court that the [tainted attorney] has not had and will not have any involvement with the litigation, or any communication with attorneys or [ ]employees concerning the litigation, that would support a reasonable inference that the information has been used or disclosed.' ' (National Grange of Order of Patrons of Husbandry v. California Guild (2019) 38 Cal.App.5th 706, 715.) '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.... 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.' (National Grange of Order of Patrons of Husbandry, supra, 38 Cal.App.5th at p. 715, emphasis added.) In opposition, Plaintiff argues that from the beginning of his employment DTLA Law has shielded Attorney Werbin from participating in any case at the firm involving Costco; no Costco cases are assigned to Attorney Werbin or his team of attorneys; Attorney Werbin does not work on Costco cases or have supervisory powers over attorneys that are involved in such litigation; DTLA Law has prohibited Attorney Werbin from sharing any confidential information or discussing Costco cases with other attorneys; Attorney Werbin does not benefit from or share in the profits of Costco cases; and DTLA Law has protected files from being shared with Attorney Werbin in the past and has implement more stringent electronic firewalls over time. However, Attorney Werbin attested he brought a case against Costco in early 2020, and this case was brought when he was newly employed with DTLA Law. (Werbin Dec., ¶ 11-12.) Moreover, Plaintiff acknowledges that prior to switching to the FileVine software in December 2021, all client files were viewable by all DTLA Law employees. (Oppo., p. 9: 19-21.) Thus, Plaintiff has not met her burden to show the ethical screen was timely imposed contemporaneous with the DTLA Law's hiring of Attorney Werbin or that preventative measures were taken to guarantee that information will not be conveyed.

'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.' (National Grange of Order of Patrons of Husbandry, supra, 38 Cal.App.5th at 718.) Under the circumstances presented here, and for the reasons stated, disqualification is warranted.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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