Opinion
Case No. CV 15-02431 DDP (GJSx)
09-29-2016
N.L.A, a minor by and through her guardian, MARICRUZ HERRERA, individually and as heir at law successor in interest to NOEL AGUILAR, deceased; and ELVIA AGUILARL, individually, Plaintiff, v. COUNTY OF LOS ANGELES; ALBERT MURAD, an individual; JOSE RUIZ, an individual, Defendants.
ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY
[Dkt. 45]
Presently before the court is Defendants' Motion to Disqualify Opposing Counsel. Having considered the submissions of the parties, the court denies the motion and adopts the following Order.
I. Background
Ariana Gebauer was an associate at the Law Offices of John Burton and represented Plaintiff C.M.G., a minor, in the present case. (Declaration of Ariana Gebauer, ¶ 1.) Between May 2014 and November 2014, Ms. Gebauer was employed by Collins Collins Muir + Stewart LLP (CCMS), a firm that represented Defendant County of Los Angeles ("the County"). (Id. at ¶ 2.) CCMS employed a hierarchal firm structure in which a partner, a senior associate, and a junior associate were usually assigned to a case. (Id. at ¶ 5.) Ms. Gebauer was typically assigned to cases as the junior associate. (Id.) During the time of her employment at CCMS, CCMS represented the County in N.G. v. County of Los Angeles, No. 13-cv-008312-SVW ("N.G. v. County"), a 42 U.S.C. § 1983 claim alleging unreasonable use of force by the County and two individual Los Angeles County Sheriff's Department ("LASD") deputies. (Declaration of Catherine Mathers, ¶ 4.) Ms. Gebauer maintains that she was not assigned to the case officially and never met with county representatives outside of their capacity as witnesses. (Id. at ¶¶ 6,7.) Furthermore, she maintains that she did no significant work on any LASD civil shooting cases. (Id. at ¶ 8.)
Ms. Gebauer's supervisor at CCMS, Ms. Mathers, the lead trial attorney on the N.G. v. County case, alleges that Ms. Gebauer worked closely with her on the case and drafted page line summaries of the two individual defendants' testimonies. (Decl. Mathers, ¶ 5.) Ms. Mathers claims that she told Ms. Gebauer confidential information regarding the County's evaluation and defense of § 1983 claims while Ms. Gebauer was assisting her. (Id. at ¶ 6.) While working with Ms. Mathers, Ms. Gebauer also had access to the entire N.G. v. County case file. (Declaration of Thomas Guterres, ¶ 7.) While at CCMS, Ms, Gebauer also worked on three civil service matters filed by deputies against the County. (Decl. Gebauer, ¶ 8; Decl. Mathers, ¶ 7.)
Upon leaving CCMS in November 2014, Ms. Gebauer joined Kessel & Associates and worked there for approximately three months. (Decl. Gebauer, ¶ 14.) While at Kessel, Ms. Gebauer worked on two cases in which the firm defended the County, neither of which involved an excessive force allegation. (Id.)
In May 2015, Ms. Gebauer joined the Law Offices of John Burton. (Id. at ¶ 15.) Before hiring Ms. Gebauer, Mr. Burton vetted her for any conflicts of interest. (Declaration of John Burton, ¶ 3.) Once Mr. Burton determined no conflict existed, Ms. Gebauer began working on the cases in his office, including this case. (Id. at ¶ 5.) On January 6, 2016, Mr. Burton emailed all attorneys of record in this case, informing them that Ms. Gebauer would be handing discovery. (Id. at ¶ 8, Ex. A.) On January 26, 2016, during a teleconference with defense counsel, Ms. Gebauer stated that she "knew the type and nature of confidential LASD documents referenced within the Stipulation for Protective Order's paragraph five, 'Good Cause Statement and Confidential Materials,' because of her prior representation of Defendant County." (Declaration Carmen Aguado, ¶ 3.)
Following this disclosure, defense counsel, Carmen Aguado, began researching Ms. Gebauer's prior employment. (Id. at ¶ 4.) On March 25, 2016, Aguado sent Ms. Gebauer and Mr. Burton a meet and confer letter outlining the grounds for this motion. (Id. at ¶ 8.) During this time, and up until March 28, 2016, Ms. Gebauer and Mr. Burton continued to work on this case, including responding to seventy-six requests for production of documents, one hundred and three requests for admission, and twenty-fixe interrogatories. (Decl. Burton, ¶ 15.)
In July 2016, Ms. Gebauer accepted employment at the Riverside County Public Defender's Office and has withdrawn as an attorney of record on this case. (Supplemental Decl. Ariana Gebauer, ¶¶ 2,3.) Defendants now move to disqualify Ms. Gebauer's former employer, the Law offices of John Burton, pursuant to California Rule of Professional Conduct, 3-310 (E).
II. LEGAL STANDARD
Motions to disqualify counsel are governed by state law. W. Sugar Coop. v. Archer-Daniels-Midland Co., 98 F. Supp. 3d 1074, 1080 (C.D. Cal. 2015). A trial court's power "to disqualify an attorney derives from the power inherent in every court to control in furtherance of justice, the conduct of its ministerial officers." People ex rel. Dept. of Corporations v. SpeeDee Oil Change Sys., Inc., 20 Cal. 4th 1135, 1145 (1999). Under California Rule of Professional Conduct 3-310 (E),
"A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment."
Courts have recognized that conflicts arising from successive representation of clients with potentially adverse interests jeopardize the former client's confidentiality. See Flatt v. Superior Court, 9 Cal. 4th 275, 282 (1995). In reviewing a motion to disqualify, a court should consider "a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion." SpeeDee Oil, 20 Cal. 4th at 1145; W. Sugar Coop., 98 F. Supp. 3d at 1080. Where a former client seeks to disqualify an attorney who successively represents a new client in a matter that is adverse to the former client, a "substantial relationship" must exist between the subject of the current litigation and prior litigation. Flatt, 9 Cal. 4th at 283; City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal. 4th 839, 847 (2006). The substantial relationship test balances the new client's right to counsel of choice and the former client's right to confidentiality. Flatt, 9 Cal. 4th at 283.
To determine whether a substantial relationship exists, the court first determines whether there was a direct professional relationship between the former client and the attorney. Cobra Solutions, 38 Cal. 4th at 847. "A substantial relationship exists where 'the attorney had a direct professional relationship with the former client in which the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation.'" Khani v. Ford Motor Company, 215 Cal. App. 4th 916, 920 (2013) (citing Jessen v. Hartford Casualty Ins. Co. 111 Cal. App. 4th 698, 710-711 (2003)). Where there is no direct professional relationship, "then the court examines both the attorney's relationship to the prior client and the relationship between the prior and the present representation." Cobra Solutions, 38 Cal. 4th at 847.
In order for a substantial relationship to exist, information "material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues" must also be material to the present representation. Khani, 215 Cal. App. 4th at 921. General information about a former client's practices, including the client's litigation philosophy, that is not of critical importance does not warrant disqualification. Id.; See also Farris, 119 Cal. App. 4th at 680 ("[F]or example, the attorney's acquisition during the first representation of general information about the first client's 'overall structure and practices' would not of itself require disqualification unless it were found to be 'material' -i.e., directly in issue of critical importance-in the second representation.").
If a substantial relationship exists, the attorney is disqualified from representing the second client. Cobra Solutions, 38 Cal. 4th at 847 (Citing Flatt, 9 Cal. 4th at 283); SpeeDee Oil, 20 Cal. 4th at 1146. Additionally, the attorney's law firm is also presumed to have confidential information and is therefore vicariously disqualified from representing the second client. Id.
III. Discussion
As Ms. Gebauer is no longer employed by the Law Offices of John Burton (LOJB), the only question before the court is whether LOJB should be disqualified from the case due to Ms. Gebauer's prior work on the matter. In order to address this issue, the court must determine whether dismissing Ms. Gebauer would have been warranted had she continued her employment at the firm.
First, Defendants contend that, during her time at CCMS, Ms. Gebauer represented the County in matters that involved factual scenarios and legal issues similiar to those presented in the instant case. (Motion at 9:4-6.) Defendants argue that Ms. Gebauer's involvement in N.G. v. County gave her access to the County's litigation strategy and budget in defending §1983 cases. (Id. at 9:20-21.) Plaintiffs, however, contend that Ms. Gebauer was never officially assigned to the case, and that her only role in N.G. v. County was to summarize a few witness depositions, which gave her no access to confidential information. (Opposition at 3:6-17).
The court agrees with Plaintiffs' contention that in her capacity on the case, Ms. Gebauer would not have encountered the type of confidential information that would disqualify her from representing Plaintiffs in this matter. Because Ms. Gebauer was never assigned to N.G. v. County, her relationship with the Defendant County in that case was tangential. Nor does Ms. Gebauer's experience conducting initial client interviews with LASD deputies in another matter related to a different section 1983 lawsuit (Zulma Trana v. County of Los Angeles, Case No. BC534547 (Gutteres Decl. ¶ 8)) constitute a "direct professional relationship" with the County. Therefore, the court must assess the relationship between the prior and present representations. Khani, 215 Cal. App. 4th at 920.
While Ms. Gebauer might have been exposed to some general information about the County's approach to section 1983 cases during her employment at CCMS, such general strategy is not of critical importance and does not warrant dismissal. Khani, 215 Cal. App. 4th at 921; Farris, 119 Cal. App. 4th at 680. Although N.G. v. County, like this case, was a § 1983 claim, the first case was dissimilar, insofar as it involved different named-defendant deputies from a different LASD substation and, significantly, involved the shooting of a decedent who was already in custody. (Decl. Gebauer, ¶ 7.)
Apart from arguments regarding Ms. Gebauer's work on N.G. v. County, Defendants contend that Ms. Gebauer's representation of the County in civil service matters involving LASD deputies, exposed her to confidential information relating to LASD training on the use of force. (Mot. at 10:5-8; Gutteres Decl. ¶ 9). However, these cases were brought against the County by LASD deputies for disciplinary actions taken against them for their use of excessive force. (Guterres Decl. ¶ 10.) As such, the legal issues, strategies, and facts of those cases are not related to the present case.
Given the loose relationship between the cases Ms. Gebauer worked on and the present case, it does not appear that Ms. Gebauer's employment prior to working at LOJB made her privy to information material to the disposition or settlement of this case. Therefore, no substantial relationship exists between this case and previous ones.
The lack of a substantial relationship between this case and previous ones would not warrant the disqualification of Ms. Gebauer. Having determined that Ms. Gebauer would not be disqualified from this case if she were still an employee with LOJB, the court also finds that disqualification of the firm is inappropriate. // // // //
IV. Conclusion
For the reasons stated above, Defendants' Motion to Disqualify is DENIED. IT IS SO ORDERED. Dated: September 29, 2016
/s/
DEAN D. PREGERSON
United States District Judge