Judge: Michael E. Whitaker, Case: 23SMCV05608, Date: 2024-08-26 Tentative Ruling

Case Number: 23SMCV05608    Hearing Date: August 26, 2024    Dept: 207

TENTATIVE RULING

MOTION

Plaintiff Daniel Fishman (“Plaintiff”) filed suit against Defendant FCA US LLC (“Defendant” or “FCA”) for violations of the Song-Beverly Act.   Defendant seeks to disqualify Logan Hensley and The Lemon Daddy a.k.a. The Drake Law from continuing to represent Plaintiff in this matter.  Plaintiff opposes the motion.    

ANALYSIS

“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 of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.”  (In re Charlisse C. (2008) 45 Cal.4th 145, 159, internal quotations & citations omitted.)

Per Business and Professions Code section 6068, subdivision (e), an attorney has an obligation to maintain client confidences.  (Bus. & Prof. Code, § 6068, subd. (e).)  When an attorney’s representation of a current client may conflict with the interests of a former client, the duty to maintain client confidences is jeopardized.  (M'Guinness v. Johnson (2015) 243 Cal.App.4th 602, 613.)  Where an attorney’s representation of a former client is substantially related to the attorney’s representation of a current client, a presumption arises that the attorney has obtained confidential information from the former client.  (See Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465, 480.) 

“To rebut the presumption, the challenged attorney has the burden of showing that the practical effect of formal screening has been achieved.  The showing must satisfy the trial court that the employee has not had and will not have any involvement with the litigation, or any communication with attorneys or coemployees concerning the litigation, that would support a reasonable inference that the information has been used or disclosed.  If the challenged attorney fails to make this showing, then the court may disqualify the attorney and law firm.”  (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 596.)  “[T]he purpose of a disqualification must be prophylactic; an attorney may not be disqualified purely as a punitive or disciplinary measure.”  (Neal v. Health Net, Inc. (2002) 100 Cal.App.4th 831, 844.) 

Defendant argues, from December 19, 2022 when he joined RoseWaldorf LLP until he left the firm on May 10, 2024, Logan Hensley (“Hensley”) defended Defendant on numerous Song-Beverly Act claims, and was actively representing Defendant on such claims in November 30, 2023, when this action was filed.  (Yasuzawa Decl. ¶¶ 3-7.)  Although Defendant concedes that some of Hensley’s representation of Defendant was “limited” (Id. at ¶ 8), in other cases, Hensley personally evaluated Defendant’s claims and participated in strategy decisions regarding Defendant’s defenses to such claims.  (Id. at ¶¶ 9-10.)  Hensley received extensive training on Defendant’s litigation strategies, and met and defended the depositions of Defendant’s authorized dealership employees as part of a joint defense agreement, and was involved in reviewing Defendant’s documents for production.  (Id. at ¶¶ 11-12.)  As a result, Mr. Hensley obtained privileged and confidential information regarding Defendant’s operations and litigation strategies.  (Id. at ¶¶ 13-16.) 

On May 16, 2024, while working for Lemon Daddy, Hensley was copied on an email to Defendant’s counsel as part of Plaintiff’s Counsel’s team.  (Yasuzawa Decl. at ¶ 18 and Ex. B.)  On June 8, 2024, Mr. Hensley sent text messages to a RoseWaldorf associate, indicating that he could still see their emails about Defendant’s cases.  (Id. at ¶ 27 and Ex. D.) 

Defendant has shown that Hensley has previously served as Defendant’s counsel in Song-Beverly Act cases.  Defendant has not, however, demonstrated that the “the prior cases were substantially related to the current case just because they involved claims under the same statute.”  (Khani v. Ford Motor Co. (2013) 215 Cal.App.4th 916, 922.)  “[E]xposure to playbook information in prior” cases does not support disqualification “without any showing of its materiality.”  (Ibid.)  Defendant has not demonstrated that any of the prior cases are so similar to this action that any information Hensley obtained about Defendant’s approach and strategies is directly pertinent to this case.  Accordingly, Defendant has not shown that the presumption arises that Hensley obtained confidential information about Defendant, warranting disqualification of Plaintiff’s counsel. 

Even if such a presumption did arise, however, Plaintiff has advanced evidence sufficient to defeat the presumption.  In opposition, Plaintiff advances the declaration of Clarence Serrano, a paralegal at The Drake Law Firm, who indicated the carbon copy (CC:) addition of Hensley to the email in question was inadvertent (Serrano Decl. ¶ 3) and that Hensley was timely screened off all FCA matters (Id. at ¶¶ 4-7.)  Serrano drafted and served a notice to FCA on July 2, 2024, informing FCA of Hensley’s employment at The Drake Law Firm, and informing that he does not participate in any matters against FCA.  (Id. at ¶ 8 and Ex. A.)  Further, Hensley’s access to all case files against FCA are restricted such that Hensley cannot view or access any such files or documents.  (Id. at ¶ 9 and Ex. B.)  Further, Hensley’s ability to receive any emails referencing FCA or any of its sub-brands has been restricted.  (Id. at ¶ 10.)  Serrano also notified every employee at The Drake Law Firm that Hensley is screened off all FCA matters and that they are forbidden from discussing or sharing documents or information regarding any FCA matter with Hensley.  (Id. at ¶ 11.)  Serrano Further served Rule 1.10 letters to Defendant.  (Id. at ¶ 12.)

Hensley further confirms that at The Drake Law Firm, he has not been assigned to any cases against FCA.  (Hensley Decl. at ¶ 15.)

CONCLUSION AND ORDER

Because Hensley is not working on this case and, therefore, is not sharing any knowledge he has about Defendant, then there is no basis for disqualification.  Therefore, the Court denies Defendant’s motion to disqualify counsel. 

Defendant shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  August 26, 2024                            ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court