Judge: Holly J. Fujie, Case: 20STCV10684, Date: 2022-09-02 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 20STCV10684    Hearing Date: September 2, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Kaiser Foundation Health Plan, Inc. (“KFHP”), Kaiser Foundation Hospitals (“KFH”), and Southern California Permanente Medical Group (“SCPMG”) (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers.

BACKGROUND

This action rises out of an employer/employee relationship.  Plaintiff’s complaint (the “Complaint”) alleges: (1) quid pro quo sexual harassment; (2) hostile work harassment; (3) discrimination; (4) retaliation; (5) failure to prevent; and (6) violations of Labor Code sections 98.6 and 1102.5.

On August 8, 2022, Moving Defendants filed a motion to disqualify counsel (the “Motion”).  Moving Defendants seek the disqualification of Plaintiff’s counsel Twila S. White (“White”) and all employees and partners of the Law Offices of Twila S. White on the grounds that White: (1) violated California Rules of Professional Conduct (“CRPC”), rule 4.2 (“Rule 4.2”) by engaging in ex parte communications with represented employees; (2) improperly recorded witness interviews; and (3) introduced illegally-obtained evidence during a deposition that was not previously produced during discovery.  Moving Defendants also seek evidentiary and monetary sanctions as well as the appointment of a discovery referee.  

DISCUSSION

A trial court’s authority to disqualify an attorney derives from the power inherent in every court, to control in furtherance of justice, the conduct of its ministerial officers, and all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.  (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 585.)  A motion to disqualify a party’s counsel raises several important interests.  (California Self-Insurers’ Security Fund v. Superior Court (2018) 19 Cal.App.5th 1065, 1071.)  Thus, judges must examine these motions carefully to ensure that literalism does not deny the parties substantial justice.  (Id.)  Depending on the circumstances, a disqualification motion may involve such considerations as a client’s right to chosen counsel, an attorney’s interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion.  (Id.)  

A 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 matter pertaining thereto. (CCP Section 128(a)(5).)  This includes the power to disqualify counsel. (In re Complex Asbestos Litig.  (1991) 343 Cal.App.3d 572, 575.) 

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.4^th 109, 113.)  Ruling on a disqualification motion also requires the court to 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 principle 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.)

A disqualification order must be prophylactic, not punitive.  (Gregori v. Bank of America (19) 207 Cal.App.3d 201, 309.)  Disqualification is inappropriate simply to punish a dereliction that will likely have no substantial continuing effect on future judicial proceedings.  (Id.)  There are other sanctions which in that situation must suffice, including ordering the payment of attorney’s fees and costs incurred by the other side as a result of the misconduct and reporting the misconduct to the State Bar of California so that it may determine whether disciplinary action is appropriate, in which case the attorney should be notified that this has been done.  (Id.)  Accordingly, disqualification should be ordered only where the violation of the privilege or other misconduct has a substantial continuing effect on future judicial proceedings.  (See City of San Diego v. Superior Court (2018) 30 Cal.App.5th 457, 462.)  Under this substantial continuing effect test, there must be a “genuine likelihood” that the attorney’s status or misconduct will affect the outcome of the proceedings before the court.   (Id. at 472.) 

Moving Defendants’ Evidence

In support of the Motion, Moving Defendants provide the following evidence:  Between November 23, 2021 and July 27, 2022, Plaintiff took the depositions of ten defense witnesses, nine of whom were represented by attorneys of Cole Pedroza LLP (“CP” or “Moving Defendants’ counsel”).  (See Declaration of Zena Jacobsen (“Jacobsen Decl.”) ¶¶ 2-11, Exhibits A-J.) 

On July 29, 2022, Plaintiff took the depositions of three SCPMG defense witnesses: (1) Hazel Smith (“Smith”); (2) Kelli Duncan (“Duncan”); and (3) Taniyah Scott (“Scott”).[1]  (See Jacobsen Decl. ¶¶ 13-15, Exhibits L-Q.)  CP represented Smith and Duncan at their depositions.  (See Jacobsen Decl., Exhibits 13-14.) 

During Duncan’s deposition, Jacobsen stated that her colleague Nayri Jilizian (“Jilizian”) would be “defending the next deposition” and would soon join the Zoom meeting in anticipation of the deposition.  (See Jacobsen Decl., Exhibit O at 122:4-8.)  Near the end of Duncan’s deposition, White introduced a video recording of a telephone or video conversation between Duncan, who is Plaintiff’s former supervisor, and Plaintiff.  (See Jacobsen Decl., Exhibit O at 122:13-13-18.)  Moving Defendants’ counsel objected on the record on the basis that Plaintiff had never previously identified or produced the video during discovery.  (See id. at 123:19-23; Jacobsen Decl. ¶ 17, Exhibits T-U.)[2]  After the video ended, White stated that she did not have further questions and that the deposition could end.  (Id.) at 130:9-10.)[3]

Duncan declares that before her deposition, she was unaware that Plaintiff had recorded the phone call that White played during her deposition.  (Declaration of Kelli Duncan (“Duncan Decl.”) ¶ 2.)  Plaintiff never asked Duncan if she could record any of their phone conversations and Duncan never consented to having Plaintiff record their phone conversations.  (Duncan Decl. ¶¶ 3-5.) 

After Duncan’s deposition ended, White asked if Scott had logged into the Zoom meeting so that they could begin her deposition.  (See Exhibit O at 130:21.)  Jacobsen stated that Scott would not appear for the deposition and that the parties could meet and confer, to which White replied that she would proceed with the deposition even if Jacobsen exited the Zoom meeting.  (See id. at 130:22-25.) 

During Scott’s deposition, White asked her if she had spoken with Moving Defendants’ counsel.  (See Jacobsen Decl., Exhibit Q at 9:12-10:24.)  Scott replied that she had spoken to two attorneys who represented Moving Defendants, that she had communicated with at least one of their attorneys that day, that she had specifically discussed her deposition with Moving Defendant’s counsel, and had been informed that an attorney would be at the deposition to assist her.  (See id.)  Scott answered no when White asked her if Moving Defendants’ counsel “represent[ed]” her, if she had ever “retain[ed]” their services, or if they had ever asked her if she wanted to be represented by them.  (Id. at 9:21-10:4.)

At around 5:15 p.m. that afternoon, Scott called Jilizian to ask why she did not appear at her deposition.  (Declaration of Nayri Jilizian (“Jilizian Decl.”) ¶ 9.)  Scott represented to Jilizian that after Jilizian informed her that the deposition was canceled, a representative from White’s office called her and informed her that she was required to appear at the deposition.  (Id.)  Scott also represented to Jilizian that she was instructed to turn off her cell phone.  (Id.)[4] 

Moving Defendants also provide evidence that White’s office called another of Plaintiff’s supervisors, David Lucas (“Lucas”), on December 10, 2021 to speak with him and schedule a meeting.  (Declaration of David Lucas (“Lucas Decl.”) ¶ 3.)  Lucas informed the caller that he was represented by Moving Defendants’ counsel and would need to consult with them before agreeing to speak with White.  (Id.) 

In around November and December of 2021, White spoke to an employee of SCPMG, Sarah Garcia de la Cadena (“Cadena”).[5]  (Declaration of Sarah Garcia de la Cadena (“Cadena Decl.”) ¶ 2.)  Thereafter, a member of White’s office provided Cadena with a declaration for her to sign.  (Id.)  Cadena refused to sign the drafted declaration but suspected that White may have secretly recorded their conversations based on the wording of the declaration.  (Id.)  Cadena confronted White about this suspicion.  (Id.)  In response, White told Cadena that she had previously told her that she would be taking notes during their conversations, although she did not directly address Cadena’s concerns about being recorded.  (See id.) 

Plaintiff’s Evidence

White declares that the Duncan recording was not previously identified because she first obtained and reviewed it in or around July 2022, after submitting Plaintiff’s supplemental discovery responses in December 2020.  (Declaration of Twila S. White (“White Decl.”) ¶ 4.)  White also declares that she was unaware that Lucas and Scott were represented by Moving Defendants’ counsel when she communicated with them.  (See White Decl. ¶¶ 6-8.)  White declares that the Motion fails to demonstrate that she had actual knowledge that Scott was represented because defending a deposition is distinct from representing a witness.  (See White Decl. ¶ 6.) 

White further declares that Moving Defendants have a pattern of falsely stating that they represent witnesses and asserting that they represent witnesses after witnesses have indicated to her that they would provide statements.  (See White Decl. ¶ 8.)  White declares that Lucas was not actually represented by counsel when she first received notice of his representation.  (Id.)  After the Motion was filed, White took steps to confirm whether witnesses were represented by CP.  For example, White declares that she contacted Cherish Wilder (“Wilder”) and Kenya Todd (“Todd”), both of whom had agreed to speak with her before CP began representing them, by asking the witnesses and Moving Defendants’ counsel for confirmation.  (Id.)  White declares that she never illegally recorded Cadena or Lucas and that Cadena provided her with written materials during their conversations.  (See White Decl. ¶¶ 9-10.) 

Moving Defendants’ Supplemental Evidence

In their reply (the “Reply”), Moving Defendants provide additional evidence regarding contact White initiated with Wilder and Todd.[6]

Wilder declares that in July 2022, she received a phone call on her personal cellphone from White, who informed her that she was calling on behalf of Moving Defendants.  (Declaration of Cherish Wilder (“Wilder Decl.”) ¶ 2.)  During their first conversation, White did not inform Wilder that she represented Plaintiff.  (Wilder Decl. ¶ 4.)  Between July and August 2022, White attempted to contact Wilder several times and from several phone numbers.  (Wilder Decl. ¶ 3.)  During one of the calls, White informed Wilder that they were speaking on a “recorded line” but did not ask permission to record the call.  (Id.)  

On August 17 and August 18, 2022, Jacobsen emailed White to inform her that Wilder was a represented witness.  (See Supp. Jacobsen Decl., Exhibit B.)  On August 22, 2022, Jacobsen emailed White to request that she stop contacting Wilder.  (See id.)  In response to each of these emails, White asked that Jacobsen provide proof of the representation.  (See id.)  On August 22, 2022, White texted Wilder to ask if it was true that she was represented by Moving Defendants’ counsel.  (Supp. Jacobsen Decl. ¶ 4, Exhibit C.) 

Todd declares that she has not worked for any of Moving Defendants for approximately four years.  (See Declaration of Kenya Todd (“Todd Decl.”) ¶ 2.)  Todd was first contacted by White in approximately August 2021.  (Id.)  This initial communication was a voice message providing that White was calling on behalf of a wrongfully terminated employee.  (Id.)  When Todd returned the call, she learned that White represented Plaintiff.  (Todd Decl. ¶ 3.)  A few months ago, White re-initiated contact with Todd.  (Todd Decl. ¶ 4.)  At some point after they had a few conversations, a member of White’s staff gave Todd a declaration drafted by White that they wanted her to sign.  (Todd Decl. ¶ 4.)  Todd did not agree to sign the declaration because she felt that it misrepresented certain things she had said.  (Id.)  When she refused to sign the document, White told her that the declaration was accurate and informed her that she could provide recordings of the conversations to confirm its accuracy.  (Todd Decl. ¶ 5.)  Todd did not know she was being recorded and did not consent to being recorded.  (Id.)[7]

White continued to contact Todd over the phone in July and August 2022.  (Todd Decl. ¶ 6.)  During some of the calls, White told Todd that they were speaking on a “recorded line” but without asking for permission to record the conversation.  (Id.)  White’s ongoing communications with her made Todd feel uncomfortable and she informed White that she did not want to continue having conversations.  (Id.)  As of August 2022, Todd has been represented by CP.  (Todd Decl. ¶ 8.)  On August 18, 2022, Jilizian emailed White to inform her that CP represented Todd and to instruct her to cease contacting her.  (See Supp. Jilizian Decl. ¶ 10, Exhibit G.)  In response, White asked for proof that CP represented Todd.  (See id.)  On August 22, 2022, White texted Todd to ask if she was represented by CP, which Todd confirmed.  (See Jilizian Decl. ¶ 11, Exhibit H.)

Ex Parte Communications with a Represented Organization’s Employees

Rule 4.2 (former rule 2-100) states, in relevant part:

(a)   In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.

(b)   In the case of a represented corporation, partnership, association, or other private or governmental organization, this rule prohibits communications with:

(1)   A current officer, director, partner, or managing agent of the organization; or

(2)   A current employee, member, agent, or other constituent of the organization, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.  (CRPC, r. 4.2)

An attorney may be disqualified for communicating directly or indirectly with a person

the attorney knows is represented by another attorney in the matter in violation of Rule 4.2.  (Doe v. Superior Court (2019) 36 Cal.App.5th 199, 205 (“Doe”).)  It must also be shown the attorney had “actual knowledge” that the person contacted was represented by counsel.  (Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1215.)  Constructive knowledge is insufficient to establish a violation.  (See Truitt v. Superior Court (1997) 59 Cal.App.4th 1183, 1188.) 

As relevant to this Motion, Rule 4.2 does two things.  (Doe, supra, 36 Cal.App.5th 199 at 205.)  Subdivision (a) tells lawyers they cannot communicate directly with people they know are currently represented by an attorney unless the attorney agrees.  (Id.)  “Representation” in this context is largely a factual question, turning on whether the individual retained an attorney, agreed to have any interests represented by counsel, and was known to be represented by the communicating lawyer.  (Id.)  Subdivision (b) addresses the issue of communication where the represented person is an organizational entity.  (Id.)  The purpose of Rule 4.2 is to prevent ex parte contact with employees who engaged in acts or conduct for which the employer might be liable.  (Id. at 203.)  It is not designed to prevent a plaintiff's lawyer from talking to employees of an organizational defendant who might provide relevant evidence of actionable misconduct by another employee for which the employer may be liable.  (Id.)

As a preliminary matter, Rule 4.2 does not provide that White was universally precluded from speaking with Moving Defendants’ current employees after the commencement of this litigation based on her knowledge that Moving Defendants, as opposed to their individual employees, were represented by CP.  Rather, Rule 4.2 prohibits an attorney’s ex parte communication with: (1) an employee that the attorney knows to be represented; or (2) with any current officer, director, partner, or managing agent of an entity defendant, or a current employee if the subject of the communication relates to that employee’s acts or omissions for which the entity defendant may be liable. 

With respect to Lucas, the evidence does not demonstrate that White had actual knowledge that he was represented by CP when she contacted him in December 2021 and no evidence has been presented that the content of their communication concerned his acts or omissions that could be imputed to his employer.  

The Motion raises serious concerns regarding White’s communications with Scott, Todd and Wilder, particularly after Moving Defendants’ counsel expressly informed her that they were represented witnesses.[8]  (See Jacobsen Decl., Exhibit O) at 122:4-6; Supp. Jacobsen Decl. ¶¶ 3-4, Exhibits B-C.)  First, with respect to Scott, the Opposition cites no authority to support Plaintiff’s position that White being informed by Moving Defendants’ counsel that Scott would be represented by CP during her July 29, 2022 deposition does not establish that White had actual knowledge that Scott was represented due to a distinction between being defended at a deposition and being generally represented.  Therefore, even assuming that White reasonably believed there was a distinction between CP defending Scott’s deposition and CP representing Scott, White had actual notice that CP was representing her for the deposition at a minimum and thus violated Rule 4.2 by directly engaging with Scott within the scope of that representation.  (See id.)  While Scott stated on the record during her deposition that she was not represented by CP when asked, the evidence strongly calls into question whether Scott’s answers were fully responsive to White’s inquiries and whether Scott, who is not an attorney, fully understood the questions as meaning anything other than that she did not have an attorney representing her present at her deposition and their relationship to the parties’ counsels’ respective legal obligations, notwithstanding their facially straightforward presentation.  Her responses that she was not represented are belied by her immediately preceding statements that she had been in contact with Jilizian earlier that day and that she had been informed that CP would assist her during the deposition.  Moreover, CP coordinated the timing of Scott’s deposition.  (See Jacobsen Decl., Exhibit K.) 

 After the Motion was filed, White continued to contact witnesses after CP explicitly told her that they were represented and directed her to stop contacting them.  While Wilder and Todd may not have been represented by counsel during their initial communications with White, White was eventually told that both had become represented by CP and thereafter continued to contact both witnesses.  The Opposition does not cite any authority to support the contention that an attorney is allowed to directly contact witnesses after being explicitly informed of their representation by their attorney in order to confirm the representation.[9]

Putting aside White’s stated distrust of CP’s statements regarding their representation of Scott, Wilder and Todd and its connection to her “actual knowledge” of these witnesses’ respective representations, White’s conduct in continuing to contact them, even if only to inquire if they were represented by CP, was, under the circumstances, precarious. 

In Snider v. Superior Court (“Snider”), a case cited in the Opposition, the court found that the attorney had not violated former rule 2-100 because the employees were not represented parties within the meaning of the rule and the attorney did not have actual knowledge of an employee’s representation.  (See Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1193.)  While the court found that there was no rule violation under the facts of the case, the Snider court also stated:

            “We emphasize, however, that in cases where an attorney has reason to believe that an employee of a represented organization might be covered by rule 2–100, that attorney would be well advised to either conduct discovery or communicate with opposing counsel concerning the employee's status before contacting the employee. A failure to do so may, along with other facts, constitute circumstantial evidence that an attorney had actual knowledge that an employee fell within the scope of rule 2–100. It might further provide support for a more drastic sanction if a violation of rule 2–100 is found.”  (Id. at 1215-16.)

There is no evidence that White took precautionary measures after being informed that CP represented Scott, Wilder and Todd.  She did not, for example, file any motions with the Court concerning CP’s alleged misconduct or to seek further evidence that CP represented the witnesses and it does not appear that she otherwise attempted to clarify her ethical obligations, even after Moving Defendants directly challenged her conduct by filing the Motion.  The Court finds that the record demonstrates that White had actual knowledge that the aforementioned three witnesses were represented by counsel once CP directly told her as much, and that she thereafter violated Rule 4.2 by directly contacting them about the representation.

Furthermore, the Court finds that evidence obtained during the Scott’s deposition is reasonably likely to have a substantial continuing effect on future judicial proceedings because of the potential for White to proceed in the litigation with the knowledge of the testimony that Scott provided without the benefit of oversight and objections by counsel.  It is reasonably likely that the ex parte deposition places White in a different position than she would have been in if Scott had been represented by counsel present during the deposition.  (See Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 607-08.) 

The Court has exercised its discretion and weighed the factors set forth in Mills, supra, of: (1) Plaintiff’s right to counsel of choice[10]; (2) White and her office’s interest in representing a client; (3) the financial burden on Plaintiff of change of counsel; (4) any tactical abuse underlying a disqualification motion; and (5) the principle that the fair resolution of disputes requires vigorous representation of parties by independent counsel, and finds that disqualification is warranted.  The Court therefore GRANTS the Motion insofar as it requests the disqualification of White and her law office. 

Recording Witness Statements/Non-Disqualification Sanctions

            It is unlawful to record a communication, in whole or part, without the consent of all parties, no matter the particular role or degree of participation that a party has in the communication.  (Gruber v. Yelp, Inc. (2020) 55 Cal.App.5th 591, 608.)  With respect to Moving Defendants’ arguments that White illicitly recorded her conversations with Cadena and Todd, the evidence is insufficient to establish misconduct.  The Cadena Declaration only provides that Cadena suspected that White had recorded their conversations. 

While the evidence indicates that Todd, at some point, did not know that her conversations with White were being recorded, the timeline of her contact with Todd is unclear.  Additionally, despite the concerns raised by the Motion concerning the propriety of both the creation and disclosure of the recorded phone conversation between Plaintiff and Duncan, the Court is unable to presently find that White violated an ethical obligation or otherwise facilitated Plaintiff’s potentially wrongful conduct. It is undisputed that the recording was made before White began representing Plaintiff and White states that the recording was not previously disclosed because she was unaware of its existence before July 2022.

To the extent that Moving Defendants assert that this evidence was improperly acquired, the proper procedure is to file a motion in limine to exclude its admission.  Based on the record currently before the Court, the Court finds these alleged transgressions insufficient to merit evidentiary or monetary sanctions and declines to impose them at this time.  The Court also declines to require the parties to obtain a discovery referee. 

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

          Dated this 2nd day of September 2022