Judge Lee W. Tsao, Case Number: 23NWCV00255, Date: 2023-09-06 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00255, Date: 2023-09-06 Tentative Ruling

Case Number: 23NWCV00255 Hearing Date: September 6, 2023 Dept: C

galvan v. costco

CASE NO.: 23NWCV00255

HEARING: 9/6/23 @ 9:30 AM

Defendant’s Motion to Disqualify is DENIED.

Moving Party to give NOTICE.

Defendant Costco Wholesale Corporation (Defendant) moves to disqualify Plaintiff’s counsel, DTLA Law Group.

Background

Plaintiff Rosa Galvan (Plaintiff) filed a Complaint against Defendant for personal injuries arising out of a slip and fall incident on May 21, 2022. Defendant alleges that Mr. Werbin, an attorney at DTLA Law Group, previously represented Defendant from 2017 to 2020. Mr. Werbin then joined DTLA Law Group in 2020.

Judicial Notice

Defendant’s requests for judicial notice Nos. 1-13 are granted as they are records of any court of this state or of any court of record of the United States. (Evidence Code § 452(d).)

Evidentiary Objections

Plaintiff’s objections to the Ruiters Declaration Nos. 1-7 are overruled. Plaintiff’s objection to the Ruiters Declaration No. 8 is sustained.

Plaintiff’s objections to the Tsao Declaration Nos. 9-11 are overruled.

Legal Standard

“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.’ ” (Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 809-10.)

“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. [Citation.] 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.” (Kirk, supra, 183 Cal.App.4th 776, 810.)

“ ‘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.’ ” (Kirk, supra, 183 Cal.App.4th 776, 811.)

Discussion

Here, Defendant has established that Mr. Werbin has represented Defendant in substantially similar cases because he previously worked on over twenty cases representing Defendant. Thus, the burden shifts to Plaintiff’s counsel to establish that it implemented an effective screen.

Plaintiff’s counsel has established that it implemented an effective screen because it has enacted proactive measures to prevent information about Defendant from being shared by or with Mr. Werbin prior to taking on this case. Defendant argues first that the screening was untimely because Plaintiff’s counsel did not establish that it’s screening methods were adequate prior to 2021. However, this case was filed in 2023, thus, the conflict arose in 2023. Defendant argues that “[t]here is no ‘expiration date’ on this information,” and “ethical screen[ing] implemented after Costco’s confidential information is disclosed does nothing to protect Costco against the harm ….” However, the interpretation of the rule Defendant proposes would prevent firms from representing clients against certain parties in perpetuity. This would run counter to the policies discussed in Kirk for allowing for methods of ethical screening to rebut the presumption of vicarious disqualification. “We reiterate the policy considerations to be taken into consideration in a motion for disqualification: (1) a client's right to chosen counsel; (2) an attorney's interest in representing a client; (3) the financial burden on a client to replace disqualified counsel; (4) the possibility that tactical abuse underlies the disqualification motion; (5) the need to maintain ethical standards of professional responsibility; and (6) the preservation of public trust in the scrupulous administration of justice and the integrity of the bar.” (Kirk, supra, 183 Cal.App.4th 776, 807-08.) Thus, Plaintiff’s counsel has implemented an effective screen because it adopted proactive screening measures prior to taking on this case.

Accordingly, Defendant’s Motion to Disqualify is DENIED.