Judge Thomas D. Long, Case Number: 22STCV22161, Date: 2023-09-14 Tentative Ruling

On November 13, 2023, Plaintiff filed a motion to disqualify Defendants’ counsel’s firm.

“‘A trial court’s authority to disqualify an attorney derives from the power inherent in every court “[t]o 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.”’” (Ontiveros v. Constable (2016) 245 Cal.App.4th 686, 694, quoting People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) “‘[D]isqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.’” (Id. at 694-695.) “When deciding a motion to disqualify counsel, ‘[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.’ [Citation.]” (O’Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1124.) The decision to grant or deny a motion to disqualify counsel is reviewed for abuse of discretion. (Id. at p. 1123.)

“The purpose of a disqualification order is prophylactic, not punitive. [Citation.] That is, the issue is whether there is a genuine likelihood that allowing the attorney to remain on the case will affect the outcome of the proceedings before the court. [Citation.] When considering vicarious disqualification of a firm based on the presence of a tainted attorney, the issue is whether there is a likelihood that other attorneys at the firm may receive and use the information possessed by the tainted attorney in the pending action.” (Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 815 (Kirk).) “However, once the tainted attorney has left the firm, vicarious disqualification is not necessary ‘where the evidence establishes that no one other than the departed attorney had any dealings with the client or obtained confidential information.’ [Citation.] Thus, the inquiry is no longer a prospective one, but a retrospective one. The trial court should not consider the risk of transmitting information from the tainted attorney to those involved in the challenged representation, but, instead, whether the tainted attorney actually conveyed confidential information.” (Id. at pp. 815-816.)

Plaintiff argues that disqualification is necessary because Zalman Robles, a former associate of Plaintiff’s counsel’s firm who worked directly with Plaintiff as the handling attorney, has worked for Defendants’ counsel’s firm since June 2023. Under Rule 1.9 of the California Rules of Professional Conduct, a lawyer may not represent a new client in the same or substantially similar matter in which that new client’s interests are materially adverse to the interests of a former client, unless the lawyer obtains written informed consent.

Robles was an associate at Plaintiff’s counsel’s firm from approximately July 2021 to April 2022. (Nguyen Decl. ¶ 4.) During this time, Robles had direct communications with Steven Gatley, Jerry Chang, and Ula Chun, all of whom represented Defendants at trial. (Nguyen Decl. ¶ 5.) Robles joined the defense firm in June 2023, but the conflict was never disclosed. (Nguyen Decl. ¶¶ 8-9.) Two days after the October 27, 2023 jury verdict, Shareholder Anthony Nguyen searched for Zalman Robles’s name on Google and first discovered his association with the defense firm. (Nguyen Reply Decl. ¶ 3.)

“Hiring a former employee of an opposing counsel is not, in and of itself, sufficient to warrant disqualification of an attorney or law firm.” (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 592.) When the former employee possesses confidential attorney-client information that is materially related to pending litigation, the hiring attorney must obtain the informed written consent of the former employer, thereby dispelling any basis for disqualification. (Id. at pp. 592-593.) “Failing that, the hiring attorney is subject to disqualification unless the attorney can rebut a presumption that the confidential attorney-client information has been used or disclosed in the new employment.” (Id. at p. 593.)

Robles declares that at Plaintiff’s firm, he was assigned to work on approximately 25 to 30 cases, and his involvement in these cases was limited because he was inexperienced as a first-year attorney. (Robles Decl. ¶ 5.) The heavy caseload overwhelmed him, which was one reason for his resignation. (Robles Decl. ¶ 6.) From approximately April 2022 through May 2022, he worked at another firm, representing HOAs as an in-house attorney. (Robles Decl. ¶ 7.) In May 2023, during the hiring process at Defendants’ firm, Robles was informed that this case appeared in an internal conflict check. (Robles Decl. ¶ 9.) He was asked if he had worked on or had obtained any information from the case that could pose an actual or potential conflict, but Robles informed the firm that he had no recollection of it. (Robles Decl. ¶ 9.) During his employment with Defendants’ firm, he never worked on this action, never discussed it, and never disclosed any information about it to anyone at the firm, including but not limited to Steven Gatley, Jerry Chang, Ula Chun, and Raul Martinez. (Robles Decl. ¶¶ 10-11.)

Two Labor and Employment partners at Defendants’ firm confirm that Robles had absolutely no involvement, in any capacity, with this matter during his employment with the firm, and did not communicate with anyone at the firm about this case. (Gatley Decl. ¶¶ 10, 14-15; Chang Decl. ¶ 8-9.) Neither Gatley nor Chang have met Robles, who works in the General Liability department. (Chang Decl. ¶ 7.)

A Labor and Employment associate and member of the trial team also did not discuss any aspect of this case with Robles, and Robles never disclosed any information about it. (Robles Decl. ¶¶ 7-8.)

Defendants’ firm created an ethical wall on November 1, 2023 to prohibit Robles from accessing any information or documents related to this case. (Robles Decl. ¶ 12; Gatley Decl. ¶ 11.)

Based on this evidence, the Court concludes that Defendants have rebutted the presumption that any confidential attorney-client information was used or disclosed in Robles’s new employment with Defendants’ firm. (See In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at p. 593.) Plaintiff has not shown that Robles actually conveyed confidential information. (See Kirk, supra, 183 Cal.App.4th at pp. 815-816.) Additionally, the newly implemented ethical wall will continue to protect any of Plaintiff’s confidential information during post-trial motions and appeals.

Plaintiff also argues that Defendants’ counsel used Responses to Request for Admission, responded to by Robles, to impeach Plaintiff at trial. (Nguyen Decl. ¶ 6.) It is Plaintiff’s contention at trial that he never saw those responses and that the information contained within were incorrect. (Nguyen Decl. ¶ 7.) Any wrongdoing or harm to Plaintiff arising from these responses was caused by Robles’s actions while at Plaintiff’s counsel’s firm. This is not a harm caused by his later employment by Defendants’ counsel’s firm.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court