Judge Thomas Falls, Case 19STCV21215 2022-08-01 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Plaintiff Christopher Bonilla’s Motion to Disqualify Defendants’ Counsel Lewis Brisbois

Plaintiff Christopher Bonilla (“Plaintiff”) alleges as follows: On or about November 10, 2018, Plaintiff needed to pull over while driving his vehicle on the Eastbound interstate 10 freeway. Plaintiff could not see the blunt end of the temporary k-rails on the shoulder of the freeway in the dark and collided with them, which resulted in catastrophic injuries to Plaintiff, including but not limited to a severed right leg, traumatic brain injury, broken left clavicle, cut to the top his head, cut to the back of his right hand, and abrasion to the right side of his foot. Plaintiff was a professional Muay Thai fighter at the time of the accident.

On November 27, 2019, Plaintiff filed a Second Amended Complaint (“SAC”), asserting causes of action against Defendants California Department of Transportation (“CalTrans”), Ames Construction Inc. (“Ames”, formerly Doe 1) (collectively, “Defendants”) and Does 2-100 for:

On September 3, 2020, the court denied as moot all three of Defendants Ames’s and CalTran’s Motions to Compel Answers, without objections, to Form Interrogatories Set One, Special Interrogatories, Set One, and Production and Inspection of Documents and Things, Set One because the subject discovery responses appeared to have been timely served. The motions at issue in this order were filed on July 7, 2020.

On January 6, 2021, the court granted in part Plaintiff’s (1) Motion to Quash deposition subpoenas on Drs. Basmajian, Macias, LA Care Health Plan, Pomona Valley Medical Group, and State Farm Insurance and (2) Motion to Quash deposition subpoena on Care Ambulance Services Inc and Pomona Valley Hospital. The Motions to Quash were filed on September 1, 2020 and September 2, 2020.

On February 9, 2021, the court granted in part and denied in part Plaintiff’s motions to compel further responses to Form Interrogatories, Special Interrogatories, and Requests for Production.

On April 16, 2021, the court granted Defendants Ames Construction, Inc’s and the People of the State of California, acting by and through the Department of Transportation’s Motion to Compel Further Responses to Special Interrogatories (Nos. 42, 43, 45-48, 50-52, 57, 64-66, and 68) and imposed sanctions against Plaintiff in the reduced amount of $1,035.

On August 16, 2021, this case was transferred from Judge Gloria White-Brown to Judge Thomas C. Falls in Department R.

On January 14, 2022, Plaintiff filed a Motion for Summary Adjudication (“MSA”) of Defendant CalTran’s 15th Affirmative Defense.

On March 1, 2022, the court heard oral argument as to the Hearing on Motion to Compel Further Discovery Responses Requests for Admissions Set One; Hearing on Motion to Compel Further Discovery Responses Request for Production Set Two; Hearing on Motion to Compel Further Discovery Responses Form Interrogatories Set Two; Hearing on Motion to Quash Motion to Quash Deposition Subpoena; Hearing on Motion to Compel Further Discovery Responses To Requests for Production of Documents (Set Three); Hearing on Motion to Compel Further Discovery Responses To Special Interrogatories (Set Three). The court DENIED Plaintiff’s Motion to Quash and the court CONTINUED the hearing to 04/28/2022 on the discovery motions.

On April 13, 2022, Defendants filed a Motion to Quash Plaintiff’s deposition subpoena to TriStar Investigation, served on March 29, 2022.

On April 28, 2022, the court heard oral argument and continued the matter to consider Defendant’s Reply. Additionally, because Plaintiff provided case authority to the court that it had not provided in its Reply Brief, as a matte of fairness, allowed Defendant to submit a supplemental brief to address each case. (Transcript p. 8.) The Minute Order stated that the

“Parties are to file additional briefs. Defense is to file their Brief by May 13, 2022. Plaintiff is to file Opposition Brief by May 20, 2022. Court Reporter's Transcript of this hearing is to be filed by 5-20-22.”

On May 11, 2022, the court continued the hearing to May 27, 2022 to allow time to consider Plaintiff’s Sur-Reply (as it was due the same day as the originally scheduled May 20, 2022, precluding the court from considering the Sur-Reply). The court reiterated that “Parties are to file their respective briefs on the same dates as indicated in the Court's April 28, 2022 minute order.”

On May 27, 2022, the court heard oral argument on the matter and subsequently took the matter under submission, which it ultimately denied.

Code of Civil Procedure section 128(a)(5) authorizes the 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. (Code Civ. Proc., § 128, subd. (a)(5).) This authority necessarily includes disqualifying an attorney. (Metro-Goldwyn Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1837–1838.) The issue of disqualification ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility. (Id.)

However, the paramount concern must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar and the recognized and important right to counsel of one’s choosing must yield to considerations of ethics that run to the very integrity of our judicial process. (Id.) Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. (Henriksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th 109, 113.) In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. (Id.)

Plaintiff moves to disqualify Defense Counsel Lewis Brisbois based upon an imputed conflict of interest that arose when Lewis Brisbois hired an Italian lawyer, Margherita Giubieli (“Giubieli”), who previously worked thoroughly with the law firm (X-Law) on Plaintiff’s case, even directly interacting with Plaintiff. Moreover, Plaintiff argues that the ethical screen Defendant instituted is not sufficient because it was not implemented before the Defense Firm hired Giubilei. Furthermore, Plaintiff avers that Defendant will not be prejudiced at all by disqualifying Defense Counsel because Defendants have an in-house litigation department as well as two other outside law firms currently involved in this case.[2]

In Opposition, Lewis Brisbois avers that it promptly erected an ethical wall after Plaintiff informed Defense Counsel of the conflict of interest; that Giubieli was hired as a law clerk not an attorney; that the only attorneys working on this case have never heard of her as they are located in the San Francisco office whereas Giubieli works at the Los Angeles office; and that Defendants will be severely prejudiced if Lewis Brisbois is disqualified.[3]

Before engaging in the merits of the motion, the court provides the following timeline.

Sometime in May 2018, Giubieli began her work with Plaintiff’s firm, X-Law. While at X-Law, she undisputedly worked extensively on the Bonilla file.[4] On April 18, 2022, Giubieli began her employment as a law clerk for Lewis Brisbois. In her employment agreement, Giubieli did not inform Lewis Brisbois of any conflicts of interest.[5] Giubieli’s last day with X-Law was on April 26, 2022,[6] and on that day Giubilei returned her X-Law laptop. (Motion pp. 3, 5.) On May 13, 2022, Plaintiff informed Defendants about the conflict of interest. On May 23, 2022, Lewis Brisbois’s general counsel requested an ethical screen, and, that very day, the ethical wall was established. The ethical wall established and notice of such was given to every employee and to Plaintiff.[7] Giubieli is currently on a leave of absence.

Accordingly, even though Giubieli is a law clerk, California Rules of Professional Conduct (“CRPC”) Rule 1.10 applies. The rule provides the following:

(a) While lawyers are associated in a firm,* none of them shall knowingly* represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9, unless (1) the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm;* or (2) the prohibition is based upon rule 1.9(a) or (b) and arises out of the prohibited lawyer’s association with a prior firm,* and (i) the prohibited lawyer did not substantially participate in the same or a substantially related matter; (ii) the prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom; and (iii) written* notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this rule, which shall include a description of the screening* procedures employed; and an agreement by the firm* to respond promptly to any written* inquiries or objections by the former client about the screening* procedures.

[2] Paragraph (a) does not prohibit representation by others in the law firm* where the person* prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person* became a lawyer, for example, work that the person* did as a law student. Such persons,* however, ordinarily must be screened* from any personal participation in the matter.

Thus, the primary issue before the court is whether Defendants’ imposition of an ethical screen about one month after Giubieli’s start date as a law clerk constitutes a timely ethical screening? For the reasons set forth below, the court finds the ethical wall was timely.

First, while the California Rules of Professional Conduct do not expressly permit an ethical screen to overcome the presumption that attorneys share confidential information with a co-worker attorney, a few cases have carved out the exception. In the case of Klein v. Super. Ct. (1988) 198 Cal.App.3d 894, an attorney’s former client moved to disqualify the attorney and the attorney's new firm because of the conflict of interest between his former attorney and the plaintiff's law firm where his former attorney was currently employed. On appeal, the court agreed and reasoned that:

California law clearly prohibits continued representation in a situation such as this, where a partner in a law firm has been disqualified from representation because of his prior receipt of confidential information, and where there has been no attempt to screen him from the litigation at hand.

The court continued to indicate that if an ethical screen was enacted, the firm's automatic disqualification might not have occurred. (Id. at 910 [“Raley is not authority for the proposition that screening may never suffice to prevent vicarious disqualification

that screening may never suffice to prevent vicarious disqualification.”]) (emphasis added).

Therefore, as here there was an effort, and a prompt one, by Defense Counsel to establish an ethical wall, the harsh and unfair effects of automatic disqualification is precluded.

Second, the appellate court in Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776 further emphasized the canon that an ethical screen could be used to rebut the presumption of shared confidences when a lawyer migrates from one private law firm to another. Specifically, the court held that automatic vicarious disqualification is not the law in California, rather, “vicarious disqualification is the general rule . . in the proper circumstances, the presumption [of shared confidences] is a rebuttable one, which can be refuted by evidence that ethical screening will effectively prevent the sharing of confidences.”(Id. at 801.)

Therefore, both Klein and Kirx stand for the proposition that an effective ethical screen negates the imposition of automatic disqualification.

Third, as to Plaintiff’s chief argument that Lewis Brisbois’s ethical wall is insufficient because it was not put in place before it hired Giubilei, the court finds that Klein and Kirx provide guidance to address that concern.

As the court iterated in Kirx, one element of an effective screen the court noted was that the “screen must be timely imposed; a firm must impose screening measures when the conflict first arises.” (Id. at 810) (emphasis added). While there is no explicit definition of a “timely” screen, the court continued to state that “[i]t is not sufficient to wait until the trial court imposes screening measures as part of its order on the disqualification motion.” (Id. quoting Hitachi, Ltd. V. Tatung Co. (N.D.Cal.2006) 419 F.Supp.2d 1158, 1165 [“The time to have moved the matter would have been when the ethical conflict was discovered, not after losing a motion to disqualify.”]) (emphasis added). Accordingly, an ethical wall need not be implemented before hiring for it to be effective, so long as it was implemented before a court order or promptly after discovery.

Therefore, as here Defense Counsel implemented the ethical screen promptly after notification by Plaintiff’s Counsel (about one week after), the court finds the ethical screen was timely.

Fourth, not only does recent case law support the “changing realities in the practice of law which undermine the rationale for an automatic rule of vicarious disqualification” (Kirx, supra, 183 Cal.App.4th at p. 801), but the American Bar Association (“ABA”) conformed its approach. In 2009, the American Bar Association merely required an attorney to obtain “informed consent confirmed in writing,” from a former client before accepting representation that was “materially adverse to the interests of the former client.” (Model Rule Prof. Conduct 1.9 (ABA 2009).) In 2009, the ABA revised Model Rule 1.10 to include a provision which expressly permits an ethical screen to be erected to overcome the presumption of shared confidences when an attorney migrates from one private law firm to another. (See Samuel Solodar, Why Kirk v. First American Title Ins. Co. Is Not Enough: The Supreme Court of California Has A Responsibility to Clarify the Scope of Permissible Ethical Screens in the Context of Private Firms, 39 W. St. U. L. Rev. 171 (2012).) Now, in order to overcome the presumption of shared confidences, the following are required: (i) an attorney must be “timely screened from any participation in the matter;” (ii) written notice must be promptly given to “any affected former client to enable the former client to ascertain compliance with the provisions of this Rule;” and (iii) written notice shall be provided to the former client, and (iii) upon the former client's written request, the former client is given certifications of compliance. (Model Rule Prof. Conduct 1.10.)

Therefore, even by the ABA requirements, Defense Counsel has abided by the rules.

To the extent that Plaintiff argues holding so otherwise would ignore “Supreme Court guidance on this issue,” Plaintiff’s argument is misplaced as Flatt v. Superior Court (1994) 9 Cal.4th 275 addressed the duty of loyalty, whereas here, the issue is the duty of client confidentiality in cases of vicarious disqualification. As the court in Kirx explained:

[O]ur Supreme Court's decisions bind us, and its dicta command our serious respect. [Citations.] However, ‘language contained in a judicial opinion is “ ‘to be understood in the light of the facts and issue then before the court, and an opinion is not authority for a proposition not therein considered. [Citation.]’ ” [Citations.]' [Citation.] When questions about an opinion's import arise, the opinion ‘should receive a reasonable interpretation [citation] and an interpretation which reflects the circumstances under which it was rendered [citation]’ [citation], and its statements should be considered in context [citation].” [citation omitted.] In the context of Flatt, the Supreme Court's citation of Henriksen with approval and statement of a rule of automatic vicarious disqualification should not be read as a binding adoption of a rule of automatic vicarious disqualification in all circumstances, as the issue was not then before the Supreme Court. Indeed, as we will now discuss, the Supreme Court itself has subsequently indicated that the question of whether vicarious disqualification can be overcome by the creation of an ethical wall is still an open one.

(Id. at 797, quoting Dyer v. Superior Ct. (1997) 56 Cal.App.4th 61, 66) (emphasis added).

Lastly, of import, Lewis Brisbois “retains more than 1,600 attorneys and employs more than 3,000 people in 54 offices” and Giubilei “never even worked on this case while employed as a law clerk.” (Opp. p. 18.) Therefore, Giubilei has not gained confidential information while employed at Lewis Brisbois.

All in all, this situation is peculiar for many reasons, but perhaps most unusual of all due to the timeline. Put differently, while Plaintiff argues that Lewis Brisbois “cannot credibly disclaim knowledge of the conflict,” (Reply p. 6) the court is curious as to why Plaintiff’s Counsel did not inform Lewis Brisbois of the conflict of interest earlier. After all, the X-Law is a “relatively small law firm” with “three full time attorneys.” (Motion p. 13) And generally, when a law firm employee leaves, let alone from a boutique law firm, an employer (usually out of excitement) inquires as to where one of its employees has gained new employment. Thus, if Giubilei was hired on February 11, 2022, then she would presumably have informed her employer—Plaintiff’s firm—about her expected departure but Plaintiff’s Counsel did not inform Defense Counsel until mid-March. While this is merely speculation, the court will also address Plaintiff’s vague facts and contradicted dates during the hearing.

Therefore, for all the foregoing reasons—notably that Giubilei never worked on the Bonilla matter while at Lewis Brisbois and that an ethical wall was promptly erected upon discovery of the conflict of interest—the court finds no reason to disqualify Defense Counsel.

Overall, upon a thorough review of all the papers, the court was struck by some ethical concerns.

First, Plaintiff repeatedly characterizes Giubieli as an attorney; yet, Giubieli is not an attorney authorized to practice in the state of California. To this point, during the course of Giubieli’s tenure with X-Law, it appears Plaintiff’s Counsel allowed Giubieli to identify herself as an attorney to the client. (Motion p. 8:15-18 [“[O]ne of the factors merits special consideration: the fact that Ms. Giubilei identified herself as an attorney in her communications with Plaintiff.”]) (emphasis added).

Second, not only did Giubilei present herself as an attorney, but Giubilei had attended Plaintiff’s IME on behalf of Plaintiff, which is a task that cannot be delegated to one without the proper credentials. (Motion p. 6.) Effectively, if Plaintiff is using such events to implicate that Defense Counsel had adequate notice even before the hiring of Giubieli, the court finds this seriously problematic. Nowhere in the court’s docket is there is evidence that Giubilei was admitted pro hac vice to assist on Plaintiff’s case in a capacity as an attorney.

The court will inquire as to this potential violation of the rules of conduct during the hearing.

[1] Pursuant to CCP 437c(b)(4), A reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing. Here, the hearing was scheduled for 04/28/2022; five calendar days before 04/28/2022 is Saturday, April 23, 2022. According to California Rules of Court 1.10a, “[t]he time in which any act provided by these rules is to be performed is computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or other legal holiday, and then it is also excluded.” As April 23, 2022 falls on a Saturday (which means the motion was to be filed and served by then) and the motion was filed and served the day before on April 22, 2022, then the motion was timely. For that reason, the court continued the hearing to take into account Plaintiff’s Reply.

[2] As to this latter point, the court is unpersuaded. With about one month left to trial, the court finds that losing its trial attorneys would create nothing but prejudice to Defendants.

[3] Though Giubieli’s resume does indicate that she worked at Plaintiff’s law firm, she showed no indication that she had any connection with the Bonilla litigation. Furthermore, her resume indicates that she was with X-Law from June 2018 through December 2020. (Perez Decl., Ex. I) (emphasis added).

[4] During her employment with the X-Law, Giubilei was pursuing an LLM degree and studying for the California bar exam. (Motion p. 14.)

[5] In its Reply, Plaintiff noted that Defendants’ attached exhibits indicate that Giubieli signed the agreement on February 11, 2022. (Reply pp. 2-3.) Indeed, a review of Luann Perez’s declaration indicates that Giubieli’s offer of employment is dated to February 11, 2022. However, while Plaintiff argues that “between February 11, 2022 and April 26, 2022, Ms. Giubilei had access to Plaintiff’s entire file for two and a half months while she was employed by LBBS,” (Reply p. 3, see also Marchino Rebuttal Decl. ¶3), that statement is unsupported by evidence. In fact, such an operation of events would be contrary to normal employment operations. Said differently, one generally gains access to its employer’s information, when it starts work, not the day one signs the contract, which can happen months in advance prior to the start date. Thus, absent a showing that Giubilei had access to Lewis Brisbois files on February 11, 2022 (i.e., she had access to Lewis Brisbois computer, was working on assignments, was regularly attending the office, etc.) the court finds April 18, 2022 is the day she had access to information.

[6] This date is also in dispute and contradicted by Plaintiff’s own concessions. According to Plaintiff, “[e]ven though Giubieli has apparently maintained that she only worked at X-Law through December 2020 [citation], she was with the Firm and worked extensively on the Bonilla case in May – July 2021.” (Motion p. 3) (emphasis added). Plaintiff has not provided evidence that Giubieli worked on the Bonilla matter after July 2021.

[7] The ethical wall “triggers an automatic electronic wall that prevents the screened individual from accessing any electronic files on the firm’s Document Management System (NetDocuments) and shared drives . . . the Information Governance Department then tracks compliance to ensure that each of the steps has been completed.” (Lesser Decl.)