Judge: Daniel S. Murphy, Case: 24STCV25161, Date: 2025-01-17 Tentative Ruling

Case Number: 24STCV25161    Hearing Date: January 17, 2025    Dept: 32

BACKGROUND

            On September 30, 2024, Plaintiff Bryan Ellis Thomas filed this action against Defendants Volkswagen Group of America, Inc. and Volkswagen of Downtown LA, alleging violations of the Song-Beverly Act.

            On December 23, 2024, Defendant Volkswagen Group of America, Inc. filed the instant motion to disqualify Anthony Paul Greco, an attorney with Plaintiff’s counsel, The Lemon Pros, LLP.

LEGAL STANDARD

“A trial court's authority to disqualify an attorney derives from its 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 matter pertaining thereto.’” (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 47, quoting Code Civ. Proc., § 128(a)(5).) “An attorney is required to avoid the representation of adverse interests and cannot, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.” (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 705.)

“[W]hether an attorney should be disqualified in a successive representation case turns on two variables: (1) the relationship between the legal problem involved in the former representation and the legal problem involved in the current representation, and (2) the relationship between the attorney and the former client with respect to the legal problem involved in the former representation.” (Jessen, supra, 111 Cal.App.4th at p. 709.)

DISCUSSION

I. Substantial Relationship

            “The substantial relationship test requires comparison not only of the legal issues involved in successive representations, but also of evidence bearing on the materiality of the information the attorney received during the earlier representation.” (Khani v. Ford Motor Co. (2013) 215 Cal.App.4th 916, 921.) “The attorney's acquisition of general information about the former 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. The same is true about information such as the first client's litigation philosophy or key decision makers.” (Ibid., citing Farris v. Fireman's Fund Ins. Co. (2004) 119 Cal.App.4th 671, 680.) “[M]ere exposure to the confidences of an adversary does not, standing alone, warrant disqualification.” (Sundholm v. Hollywood Foreign Press Assn. (2024) 99 Cal.App.5th 1330, 1340.)

            Mr. Greco represented Volkswagen in Song-Beverly litigation from July 2021 to March 2024. (Johnson Decl. ¶¶ 2-3.) In that position, Mr. Greco regularly communicated with Volkswagen’s general counsel and participated in “meetings to discuss Volkswagen’s strategy.” (Id., ¶ 6.) Mr. Greco also “developed and recommended strategies, reviewed confidential and privileged documents, prepared responses to discovery, prepared Volkswagen corporate representatives to testify at depositions (and defended the depositions), and prepared discovery and dispositive motions.” (Id., ¶ 7.) This meant that Mr. Greco had knowledge of Volkswagen’s “operations, automotive technology, and litigation objectives,” as well as its “overall strategy for . . . defense in breach of warranty related lawsuits.” (Id., ¶¶ 14-15.)

            On some cases, “Mr. Greco was also designated as lead trial counsel and tasked with planning and leading the trial strategy.” (Conboy Decl. ¶ 11.) Mr. Greco further attended conferences with Volkswagen, where he “discussed with Volkswagen’s Senior Counsel strategies and tactics that would assist in Volkswagen’s defense when facing California lemon lawsuits.” (Id., ¶ 13.) Mr. Greco also represented Volkswagen-authorized dealerships, exposing him to “Volkswagen’s business information, . . . dealership management and personnel, as well as to dealership policies, business practices, and documents.” (Id., ¶ 14.)      

            Khani is informative on whether this is sufficient to warrant disqualification. In Khani, Ford similarly moved to disqualify the plaintiff’s counsel, Payam Shahian, due to Shahian’s prior representation of Ford in lemon law cases. (Khani, supra, 215 Cal.App.4th at p. 919.) Ford similarly argued that Shahian “was ‘privy to confidential client communications and information relating to the defense of’ such cases, as well as to ‘pre-litigation strategies, tactics, and case handling procedures.’” (Ibid.) The Court of Appeal rejected Ford’s argument because “[w]hile Ford presented evidence that Shahian represented it in California lemon law cases, it did not establish that any confidential information about the defense in those cases would be at issue in this case.” (Id. at p. 922.) “The trial court abused its discretion in concluding that the prior cases were substantially related to the current case just because they involved claims under the same statute.” (Ibid.) “The court also incorrectly assumed that Shahian's exposure to playbook information in prior lemon law cases was sufficient to disqualify him in this case without any showing of its materiality.” (Ibid.)

Here, Volkswagen has similarly failed to show that Mr. Greco gained confidential information from his prior representation of Volkswagen that is material to the current representation of Plaintiff Thomas. Volkswagen’s vague references to “strategies,” “business information,” “personnel,” “discussions,” and “confidential information” are insufficient to warrant disqualification. “Such generalized assertions cannot establish a substantial relationship.” (Victaulic Co. v. American Home Assurance Co. (2022) 80 Cal.App.5th 485, 512.) Volkswagen has not identified any particular information gained from the prior representation that is “directly at issue in, or ha[s] some critical importance to, the second representation.” (Ibid.) As in Khani, there is no indication that the subject vehicle in this case or its repair history were the subject of any prior action in which Mr. Greco represented Volkswagen. (See Khani, supra, 215 Cal.App.4th at p. 922.) Mr. Greco’s knowledge amounts to no more than the typical “playbook” knowledge found insufficient in Khani and Victaulic.  

Because Volkswagen has failed to demonstrate a substantial relationship between the prior and current representations under the standards set forth in Jessen and Khani, there is no basis for disqualification.

II. Screening

            In any event, proper screening of Mr. Greco would allow The Lemon Pros, LLP to represent Plaintiff even if Mr. Greco were found to have a conflict. (See Cal. Rules of Prof’l Conduct, Rule 1.10(a)(2).) “The specific elements of an effective screen will vary from case to case,” with focus on “whether the court is satisfied that the tainted attorney has not had and will not have any improper communication with others at the firm concerning the litigation.” (Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 811.) 

Here, Mr. Greco has been barred from accessing any files involving Volkswagen. (Saeedian Decl. ¶ 3.) Mr. Greco does not handle any cases involving Volkswagen and is excluded from all communications, discussions, and meetings regarding Volkswagen. (Id., ¶ 4.) Mr. Greco has his own office and is thus physically separated from other personnel such that he is not exposed to discussions involving Volkswagen. (Id., ¶ 5.) All personnel at the firm have been barred from discussing matters involving Volkswagen with Mr. Greco. (Id., ¶ 6.) Volkswagen and its counsel were notified on December 4, 2024 of Mr. Greco’s employment at The Lemon Pros, LLP, as well as the screening measures described above. (Id., ¶ 8, Ex. 2.)      

The Court finds that The Lemon Pros, LLP has satisfied the requirements of Rule 1.10(a)(2). Because Mr. Greco has been properly screened from cases involving Volkswagen, the conflict (if it exists) is not imputed to the firm. Accordingly, The Lemon Pros, LLP may continue to represent Plaintiff even if Mr. Greco cannot.

CONCLUSION

            Defendant’s motion to disqualify counsel is DENIED.