Judge: Malcolm Mackey, Case: 21STCV13121, Date: 2023-05-01 Tentative Ruling

Case Number: 21STCV13121    Hearing Date: May 1, 2023    Dept: 55

J-M MANUFACTURING COMPANY, INC. v. WFBM, LLP               21STCV13121

Hearing Date:  5/1/23,  Dept. 55

#5:   MOTION TO COMPEL NON-PARTY DOLAN LAW FIRM, PC TO COMPLY WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS.

Notice:  Okay

Oppositions

MP:    

Plaintiff and Cross-Defendant J-M MANUFACTURING COMPANY, INC.

RP:   

Defendant WFBM, LLP.

Nonparty Simmons Hanly Conroy, LLC.

Nonparty Scott Peebles.

Joinder of nonparty Dolan Law Firm, PC.

Summary

On 4/6/21, Plaintiff J-M MANUFACTURING COMPANY, INC. filed a Complaint.

On 8/25/21, Plaintiff filed a First Amended Complaint, alleging:  Defendant WFBM, LLP provided legal representation as to a defensible asbestos case-- Norris Morgan v. J-M Manufacturing Company, Inc., LASC Case No. BC695605, in which the underlying case plaintiffs were represented by Simmons Hanly Conroy, LLC (SHC), with lead trial associate Scott Peebles.  But Defendant grossly poorly represented Plaintiff, in the action to recover damages allegedly resulting from Plaintiff’s asbestos exposure, including Defendant’s appalling lack of pre-trial preparation, leading to a large Judgment against Plaintiff, in the sums of $7,213,704.39 in compensatory damages, and $15 million punitive damages.   In a prior wrongful termination case by attorney Peebles, represented by Dolan Law Firm, PC, it was alleged that he was fired by Simmons Hanly Conroy, for being a whistleblower about the law firm’s ongoing ethics violations, and that case settled with a protective order and confidentiality agreement.

The causes of action of the First Amended Complaint herein are:

(1) LEGAL MALPRACTICE;

(2) BREACH OF FIDUCIARY DUTY;

(3) BREACH OF CONTRACT/ BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING;

(4) NEGLIGENT MISREPRESENTATION;

(5) FRAUDULENT CONCEALMENT.

MP Positions

Moving party requests an order compelling non-party Dolan Law Firm, PC to comply with a deposition subpoena for production of business records, other than Dolan’s absolutely protected attorney work product, on grounds including the following:

·         Moving party’s deposition subpoena seeks law firm documents regarding allegations of severe ethical misconduct by the plaintiffs’ law firm appearing in the underlying asbestos case, such as participating in clients’ perjury.

·         In a separate wrongful termination case by attorney Peebles, represented by Dolan Law Firm, PC, alleged he was fired by SHC, for being a whistleblower about the law firm’s ongoing ethics violations, but that case was settled before details were revealed or proved.  There is an inference that there was probable cause for those allegations.

·         Peebles had alleged his law firm’s wrongdoing in another case, Bretado v. 3M Company, and the Judge there ordered partial unsealing of some documents.

·         So, it is plausible that that the underlying plaintiffs’ lawyers acted unethically in the underlying asbestos lawsuit alleged here.

·         Opposing parties Defendant, SHC, Peebles, and Dolan have not shown that any of the records sought are privileged.

·         If the attorney-client allegations are true, the discovery likely falls within an exception to the privilege under Cal. Evidence Code §956-- the crime-fraud exception.

·         The records are reasonably calculated to lead to the discovery of admissible evidence, as being relevant to the Complaint and the defenses thereto, and the Cross-Complaint, as to any ethical misconduct of SHC in prosecuting the underlying asbestos case, and any potential involvement or knowledge on the part of Defendant.

·         The Protective Order in the Peebles Action with confidentiality provisions do not preclude this Court from ordering disclosure of the information.

·         The various adverse rulings in other cases, as to similar discovery, have no bearing or precedential value in this case.

·         Spectra-Physics Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1493 was limited to a party’s attempt to take opposing counsel’s deposition in a pending action, not after an action concluded.

·         The motion was timely filed July 13, 2022.  An opposition contends it was untimely filed 21 days after Peebles’ June 22, 2022 written objections. However, those objections were sent to J-MM’s counsel on June 22, 2022, via Federal Express. (Rosen Declaration, Exhibit D.) Where service is by overnight delivery, any period of notice and any right or duty to do any act or make any response within any period or on a date certain is extended by two court days. Code of Civil Procedure §1013(c). Twenty days from June 22, 2022 was Tuesday, July 12, 2022. Two court days thereafter was Thursday, July 14, 2022.

RP Positions

Opposing parties and non-parties advocate denying, for reasons including the following:

·         J-MM has tried to obtain these same documents in four other matters, including a pending appeal, and each judge denied J-MM’s requests.

·         The Dolan Firm’s attorney-client privileged and confidential client documents that belong to the Simmons Hanly Conroy, LLC law firm, and the client, have no possible relevance to this case.

·         The only tangential connection between this legal malpractice matter and the prior employment matter is that the then-sued Simmons firm had represented plaintiffs in the underlying asbestos case.

·         There is no proof of the assertions that the same unethical attorney misconduct occurred in the underlying asbestos litigation that WFBM LLP “knew or should have known about or discovered.”

·         Only redacted complaints were filed in the prior wrongful termination case, due to confidential and privileged information.

·         The disguised reason for this Subpoena can only be a desire to conduct an improper fishing expedition into the Simmons Firm’s attorney-client privileged and confidential client files and communications, in the hopes of finding something to use against the Simmons Firm in unrelated cases.

·         Taking discovery from opposing counsel “should be severely restricted, and permitted only upon a showing of extremely good cause.”  Spectra- Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1493.

·         All third-party discovery is subject to a higher standard of good cause than discovery from a party.

·         The documents sought by Request Nos. 10-22 (seeking documents produced in the Peebles Action) are subject to a protective order that prohibits their production to third parties to the extent they are designated “Confidential.”

·         Given the generic and broad requests here, the information sought could also be subject to mediation confidentiality, financial privacy, and other protections. (Cal. Evid. Code §

·         1119).

·         In cases involving terminated employee attorneys, private personnel documents must not be made public.   (General Dynamics Corp. v. Superior Court, 7 Cal.4th at p. 1191; Chubb & Son v. Superior Court, 228 Cal.App.4th at p. 1108.)

·         J-MM fails to demonstrate that Dolan Law Firm should endure the burden of searching for and producing such overly broadly requested materials.   It is absurd to suggest that the Dolan Law Firm should be required to create a privilege log for its entire litigation file.

·         Any communications concerning the Morgan Action are likely already within J-MM's possession, making the requests for these communications duplicative.

·         J-MM was required to file its motion “within 20 days of service of [Mr. Peebles’] written objection.” Cal. Civ. Proc. Code § 1985.3(g).

·         J-MM failed to meet and confer.

Tentative Ruling

The motion hearing is continued, again, to 8/1/23 at 8:30 a.m. in Department 55, or until further ordered by the Court.

The Court determines that there is a petition for writ of mandate in this case, and a related appeal pending with some issues involved in this case, which could provide guidance and narrow the issues of this matter--  Peebles v. Simmons Hanly Conroy, LLC, Court of Appeal Case Number B318822.

Even where there is no automatic stay pending appeal, judges can exercise discretion to continue or stay proceedings until an appeal is decided.  Reed v. Superior Court (2001) 92 Cal. App. 4th 448, 455. 

*IF ALL PARTIES WOULD LIKE TO SUBMIT ON THE COURT’S TENTATIVE RULING, PLEASE CALL THE COURTROOM AT 213-633-0655*