Filed 9/30/19 Vella-Andrade v. Shannon B. Jones Law Group, Inc. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SANDRA J. VELLA-ANDRADE,

Plaintiff and Respondent,

v.

SHANNON B. JONES LAW GROUP, INC. and SHANNON B. JONES,

Defendants and Appellants.

A153737

(Contra Costa County

Super. Ct. No. MSC16-01673)

Defendants Shannon B. Jones and Shannon B. Jones Law Group, Inc. (SBJLG) moved to disqualify plaintiff Sandra J. Vella-Andrade’s counsel, Levy Vinick Burrell Hyams LLP (LVBH), based on LVBH’s use of improperly acquired records in plaintiff’s action against defendants. The trial court denied defendants’ motion to disqualify. We affirm.

BACKGROUND

I. Vella-Andrade’s Employment at SBJLG
II.
Vella-Andrade worked for Jones at her law firm, SBJLG, from July 2010 until January 2016, first as a part-time bookkeeper and later as SBJLG’s controller. Vella-Andrade’s responsibilities included managing the accounting for SBJLG. As part of her position, Vella-Andrade had access to SBJLG’s records, including its financial information.

Vella-Andrade abruptly resigned from SBJLG in January 2016 and later sued Jones and SBJLG for constructive termination, failure to pay overtime, and other causes of action. Vella-Andrade’s amended complaint alleged she “was forced to resign . . . after [d]efendants subjected her to conditions violating public policy including, but not limited to, requiring her to participate in illegal and unethical business or financial activity and requiring her to work more than 40 hours in a week or eight hours in a day without overtime compensation.” It also alleged unethical behavior by Jones, such as mixing client funds with SBJLG’s operating funds, making after-the-fact changes on draft client bills or “pre-bills,” as well as paying for personal expenses with SBJLG funds and directing Vella-Andrade to record those transactions as business expenses.

Vella-Andrade secured copies of 27,000 pages of records (the records) from SBJLG’s office before resigning. The records included privileged communications between Jones and her clients, pre-bills, client bills, intraoffice communications, confidential employee records, payroll information, and Jones’ personal financial records. Vella-Andrade did not have permission to take the records.

Vella-Andrade’s acquisition and sharing of the records with LVBH would serve as the basis for two of defendants’ motions relevant to this appeal: a motion for a protective order and a motion to disqualify LVBH.

III. Discovery and Request to Return Records
IV.
On November 16, 2016, defendants requested that Vella-Andrade produce all documents she still possessed from her time at SBJLG. Vella-Andrade produced the records a month later.

Shortly after producing the records, Vella-Andrade served 164 requests for admission (RFAs). The applicable period for most of the RFAs was January 1, 2011 to December 31, 2015, which corresponds with the full calendar years during which Vella-Andrade was employed at SBJLG. Only occasionally did the RFAs provide more specific dates. Mirroring the amended complaint, most of Vella-Andrade’s RFAs alleged Jones had used money from SBJLG’s accounts to pay for personal expenses, such as family travel as well as food, lodging, and training for her horses. One RFA stated Jones had directed Vella-Andrade to characterize these personal expenses as advertising or business expenses in SBJLG’s financial records. Other RFAs concerned Vella-Andrade’s position, SBJLG’s bank account, and another business Jones owned.

After reviewing the records and Vella-Andrade’s RFAs, defense counsel wrote a letter to LVBH requesting that it return all copies of the records in its possession. LVBH refused.

V. SBJLG’s Motion for a Protective Order
VI.
Within days of LVBH’s refusal to return the records, defendants filed a motion seeking a protective order and return of the records.

Along with her opposition to this motion, Vella-Andrade filed a declaration detailing her familiarity with the records based on her employment at SBJLG. Vella-Andrade’s declaration repeated many of the same allegations as her amended complaint and attached exhibits selected from the records to support her claims. It also explained that she regularly maintained copies of SBJLG records so she could refer back to work she had previously completed, including keeping duplicate copies of those records at her home where she often worked remotely.

The trial court heard argument on LVBH’s motion for a protective order on April 13, 2017, two months after the motion was filed. After hearing from both parties, the trial court asked for additional briefing and ordered the parties to sort the records into defined categories to assist it with deciding the motion.

That same day, the parties met and conferred about some of their disagreements concerning the records. During that meeting, Vella-Andrade admitted she only needed some of the records, so she agreed to identify any documents in the records unnecessary to litigate her case and to turn over those documents to defense counsel to preserve until the case was resolved. Vella-Andrade also agreed to withdraw her RFAs.

Within days of reaching these agreements, defense counsel sent LVBH a letter informing it of a recently published case that purportedly supported defendant’s position that LVBH could not continue to review the records. Defense counsel threatened to move to disqualify LVBH if LVBH did not return the records within a week.

Notwithstanding this letter, LVBH continued to act in accordance with counsel’s prior agreement, reviewing and identifying over ten thousand pages of documents that it believed were unnecessary for the case.

VII. SBJLG’s Motion to Disqualify LVBH
VIII.
Approximately three weeks after defendants sent the letter threatening to move to disqualify LVBH, defendants filed the motion. In moving for disqualification, defendants argued that LVBH’s review of the records had given it an unfair advantage when drafting the complaint and RFAs.

The trial court heard argument on the motion to disqualify on three separate dates, starting on June 22, 2017. Just before the initial hearing, the trial court provided the parties with a written tentative ruling declining to disqualify LVBH. Without addressing whether LVBH had failed to inform opposing counsel that it had received confidential records, the tentative ruling concluded there was “no evidence before [it] that ties any particular document to any purported impact on the outcome of this litigation, and that [was] the relevant inquiry. . . . Merely asserting that the documents were stolen, that they are privileged, and then observing that they have been produced [was] insufficient to establish the necessary connection between those facts and an effect on judicial proceedings.”

The trial court also noted that even if LVBH “were disqualified from this case, Vella-Andrade would continue to possess whatever information she learned about SBJLG’s finances during her employment there. Accordingly, disqualification would serve no purpose . . . [as] [she] would presumably share this same information with any attorney(s) she hired subsequently, and the Court [was] not empowered to restrict the free flow of information between Vella-Andrade and her lawyer(s).” The tentative ruling therefore concluded that “[d]isqualification [was] not warranted.”

During the initial hearing, the trial court stated that it needed a good record before it would disqualify counsel and that the record presently before it did not suffice. It further agreed to take the disqualification motion under submission pending resolution of the motion for a protective order because the motions were substantially related to one another.

In the interim, the trial court ordered Vella-Andrade to purge from the records all documents she had deemed nonessential to her claims and to lodge hard copies of those documents with the trial court. At defense counsel’s request, the trial court permitted defense counsel to cite in future filings documents that Vella-Andrade deemed nonessential and would be purging. Finally, the trial court instructed the parties to categorize all the remaining records by July 24, 2017 to help it review the voluminous records and rule on the motions for a protective order and disqualification.

LVBH submitted Vella-Andrade’s categorization of the records to the trial court. LVBH also purged from the records any documents deemed nonessential and delivered hard copies of those documents to the court.

Defendants do not appear to have complied with the trial court’s order; they instead filed declarations by Jones and another person at Jones’ firm. Defendants provided Vella-Andrade with a copy of the declarations and a list of Bates numbers referencing the records cited as exhibits, but they refused to provide Vella-Andrade with the exhibits.

The trial court again heard argument on the motion to disqualify on August 14, 2017. At that hearing, defendants argued that taking away the records was an insufficient remedy because LVBH could use the documents “far more effectively than somebody that they . . . tell them about.” The trial court advised defendants that it had to determine whether LVBH’s review of the records would “help them somehow into the future.” Without citing case law, defendants insisted that the trial court did not need to make that finding.

At the final hearing on the motion, the trial court stated that in “most of the disqualification cases, you have documents that are representing information that’s not within the knowledge of the attorney’s clients going to opposing counsel. [¶] Here, you have something where all the documents were within the knowledge of the plaintiff. So the plaintiff would be able to communicate those things orally to her attorney as opposed to having the documents themselves. And so it’s hard for me to understand the prejudice.”

Defendants responded by claiming the trial court’s reasoning “sanction[ed] violation[s] of ethical requirements.” Defendants contended they were prejudiced by LVBH’s exposure to their financial information without explaining how that exposure impacted the case going forward. They dismissed the trial court’s conclusion that Vella-Andrade was familiar with the contents of the records because, they asserted, nobody could remember the contents of 27,000 pages.

IX. Trial Court Order Partially Granting a Protective Order
X.
After months of litigation, including the review of a substantial representational sampling of the records, the trial court granted in part and denied in part defendants’ motion for a protective order. The trial court first concluded that Vella-Andrade could keep documents relating to her status as an employee because “courts have generally allowed plaintiffs to keep those communications directed to and from the plaintiff regarding his or her individual status as an employee.”

But the trial court granted the request for a protective order as to the remainder of the documents, ordering plaintiff to return the rest of the records to defendants. The court explained that “[t]he gathering or retention of evidence by plaintiff-employees while still employed that can potentially be used in litigation against their former employers, is generally condemned and the use of such ‘self-help’ documents barred.” Turning to the evidence before it, the trial court determined that Vella-Andrade had engaged in such “self-help” by compiling and retaining documents during her employment at SBJLG and that “[s]uch conduct undermines the discovery process and cannot be permitted.”

XI. Trial Court Order Declining to Disqualify LVBH
XII.
On the same day the trial court ruled on the motion for a protective order, it denied defendants’ motion to disqualify LVBH. In so ruling, the court stated that it “found nothing to support a change in the original tentative ruling.” It explained that defendants had failed to cite any evidence that Vella-Andrade did not already have substantially the same information because of her former position at SBJLG. It further noted that defendants had failed to explain how the records affected the disputed issues on an ongoing basis. The court thus concluded disqualification was improper because defendants had not shown they would be prejudiced by LVBH’s continued representation of Vella-Andrade.

Defendants appeal the trial court’s denial of their motion to disqualify LVBH. (Cal. Rules of Court, rule 8.104; Meehan v. Hopps (1955) 45 Cal.2d 213, 215–217.)

DISCUSSION

Defendants insist the trial court should have disqualified LVBH because “California law is clear that an attorney who receives protected documents must refrain from using the material, and must immediately notify the opposing party that the confidential documents are in the attorney’s possession.” While we agree that attorneys are required to act in that manner, failing to do so does not automatically warrant disqualification. Defendants have failed to establish that the trial court abused its discretion in finding that LVBH’s conduct would likely have no substantial continuing effect on the proceedings.

I. Standard of Review
II.
“Generally, a trial court’s decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial court’s express or implied findings supported by substantial evidence. [Citations.] When substantial evidence supports the trial court’s factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. [Citation.] However, the trial court’s discretion is limited by the applicable legal principles. [Citation.] Thus, where there are no material disputed factual issues, the appellate court reviews the trial court’s determination as a question of law. [Citation.] In any event, a disqualification motion involves concerns that justify careful review of the trial court’s exercise of discretion.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143–1144.)

The parties disagree as to which standard of appellate review applies. Defendants insist the salient facts are undisputed, thereby requiring us to review the trial court’s decision de novo. Vella-Andrade counters that we should review for abuse of discretion because the trial court resolved certain factual disputes, such as determining that Vella-Andrade’s familiarity with the records would have allowed her to provide substantially the same information to her counsel.

We agree the trial court made factual findings pertinent to our analysis. We therefore apply the abuse of discretion standard and will reverse “ ‘ “only when there is no reasonable basis for the trial court’s decision.” ’ ” (McDermott, supra, 10 Cal.App.5th at p. 1121.)

III. Governing Legal Principles
IV.
Trial courts have the power to control the conduct of their ministerial officers, including the discretion to disqualify an attorney, in the furtherance of justice. (Henriksen v. Great American Savings & Loan, (1992) 11 Cal.App.4th 109, 113; Comden v. Superior Court (1978) 20 Cal.3d 906, 916, fn. 4.) A trial court abuses its discretion if it “fails to exercise discretion where such an exercise is required.” (Henriksen, at p. 113.)

In some instances, a trial court may disqualify an attorney who inadvertently receives confidential materials from an opposing side and fails to act appropriately. (McDermott, supra, 10 Cal.App.5th at p. 1120.) Our case law is clear that when a lawyer receives “materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, th[at] lawyer . . . should refrain from examining the materials any more than is essential to ascertain if the materials are privileged.” (State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656 (State Fund).) The attorney should also “immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.” (Id. at pp. 656–657.) These obligations, often referred to as State Fund duties, apply whether the documents were inadvertently disclosed by opposing counsel or their own client. (McDermott, at p. 1092.)

If a trial court concludes that an attorney failed to comply with his or her State Fund duties, it must next determine “whether there exists a genuine likelihood that the status or misconduct of the attorney in question will affect the outcome of the proceedings before the court.” (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 309.) If the trial court further decides that “there is a reasonable probability counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation,” it should disqualify that counsel. (Ibid.) But if it concludes that the information counsel has obtained “will likely have no substantial continuing effect on future judicial proceedings,” it should decline to disqualify counsel. (Ibid.) Instead, “[t]here are other sanctions which in that situation must suffice, including imposition of attorneys fees and costs incurred by the other side as a result of the misconduct [citation] and reporting of the misconduct to the State Bar of California so that it may determine whether disciplinary action is appropriate.” (Ibid.) That is because the purpose of disqualification is prophylactic, not punitive. (Id. at pp. 308–309.)

V. Analysis
VI.
A. State Fund Duties
B.
To determine whether LVBH must be disqualified, we first decide whether LVBH violated its State Fund duties. (McDermott, supra, 10 Cal.App.5th at p. 1092; State Fund, supra, 70 Cal.App.4th at pp. 656–657.) Vella-Andrade admits she provided LVBH with the records, which were confidential and, in some instances, privileged, as they included emails and memoranda from Jones to her employees giving directions on work to be done on various cases, pre-bills, bills summarizing discussions between Jones and her clients, bank statements, profit-and-loss statements, and other sensitive documents. The record establishes that LVBH reviewed the records Vella-Andrade provided. For example, LVBH produced the records during discovery (which it presumably reviewed prior to production). LVBH also provided the court a list of documents Vella-Andrade had taken but LVBH deemed unnecessary to prosecute the case; it could not have created this list without reviewing the documents provided by Vella-Andrade. And although LVBH produced copies of the records, it did not notify defendants that it had the records and refused to return them. On this record, and particularly in light of billing records detailing Jones’ communications with her clients and the substance of work performed on her clients’ behalf, we conclude that LVBH failed to comply with its State Fund duties. (Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 297 [billing information that informs the client of the nature of work falls within the heartland of the attorney-client privilege].)

Defendants’ “primary position on appeal is that the trial court erred by not disqualifying LVBH for violating their legal and ethical responsibilities under the State Fund rule and the line of cases explaining and implementing this well-established rule.” Defendants contend that LVBH’s violation of its State Fund duties “negatively impacts ‘public trust in the scrupulous administration of justice and the integrity of the bar’ and “the fundamental principles of our judicial process.’ ” (McDermott, supra, 10 Cal.App.5th at 1119.) They insist that “LVBH’s improper conduct warrants disqualification for this reason alone.” While we agree that LVBH failed to comply with its State Fund duties, defendants cite no authority stating that we may end our analysis there. Under well-established case law, we must address whether LVBH’s continued representation of Vella-Andrade will have an ongoing impact on proceedings. (Gregori v. Bank of America, supra, 207 Cal.App.3d at p. 309.)

C. Impact on Future Litigation
D.
As LVBH violated its State Fund duties, we next consider whether LVBH’s review and use of the records will likely have a substantial continuing effect on future litigation proceedings. (McDermott, supra, 10 Cal.App.5th at p. 1121.)

We conclude the trial court did not abuse its discretion in ruling that LVBH’s disqualification would serve no purpose because Vella-Andrade knows from her time at SBJLG substantially the same information contained in the records and is entitled to provide that information to her attorneys. Bell v. 20th Century Insurance Co. (1989) 212 Cal.App.3d 194 (Bell) is instructive. In Bell, an employer sought to disqualify a former employee’s attorney in a wrongful termination action. (Bell, at pp. 196–197.) While the former employee, Bell, was still working as a personnel officer, she discussed with her employer’s counsel defenses and legal strategies against another former employee who had sued the employer for wrongful termination. (Id. at p. 196) Bell later hired the same law firm that had represented the other former employee and sued the employer. (Id. at p. 197.) The Court of Appeal affirmed the order denying disqualification because it “fail[ed] to see how Ms. Bell could have improperly disclosed information to her own counsel in the prosecution of her own lawsuit. Moreover, even assuming she could have improperly disclosed such information, defendants offer[ed] no explanation on how disqualification of [Ms. Bell’s chosen] firm [would] remedy the situation. Ms. Bell would be free to disclose this purported confidential information to her new counsel, leaving defendants in the identical position they are presently in.” (Id. at p. 198.) The trial court did not err when it reached the same conclusion here, recognizing that it “cannot excise knowledge from Vella-Andrade” or “prevent [her] from sharing that knowledge with future counsel, were disqualification to be granted.”

Like Bell, O’Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115 (Ra), is illuminating here. The court in Ra disqualified attorney Richie from representing Ra in Ra’s case against O’Gara Coach on the basis that Richie had, in his capacity as O’Gara Coach’s former President and Chief Operating Officer, acquired attorney-client privileged information “concerning Ra’s allegedly fraudulent activities at issue in this litigation.” (Ra, supra, 30 Cal.App.5th at p. 1128, italics added; see also id. at p. 1129 [disqualification warranted because Richie had communicated with outside counsel regarding Ra’s actions and had “developed theories material to O’Gara Coach’s defense” and “cross-claims in this litigation that are protected by the lawyer-client privilege”].) Importantly and by contrast, the Ra court noted that “ ‘[i]f the disclosure [of privileged material] is made by the attorney’s own client, disqualification is neither justified nor an effective remedy. A party cannot “improperly” disclose information to its own counsel in the prosecution of its own lawsuit.’ ” (Id. at p. 1130.) Accordingly, the Ra court stated that Richie’s law firm “might properly represent Richie in his ongoing litigation against O’Gara Coach, notwithstanding Richie’s possession of relevant confidential information” covered by O’Gara Coach’s attorney-client privilege. (Id. at p. 1131.) SBJLG thus mistakenly relies on Ra, as Vella-Andrade is in the position of Richie vis à vis Richie’s own suit against O’Gara Coach; SBJLG has failed to demonstrate that Vella-Andrade possesses privileged information that is “at issue in this litigation.” (Id. at p. 1128.)

Defendants nevertheless insist that LVBH’s review of the records will have a continuing effect on litigation because LVBH will use the information from the records as a “roadmap to conduct discovery and prepare for trial because they know what documents and information exist.” This generic and conclusory assertion is insufficient because defendants fail to “link” the records to the issues presented in this case. (Wu v. O’Gara Coach Co., LLC (2019) 38 Cal.App.5th 1069, 1083 (Wu) [declining to disqualify counsel as defendants had not “demonstrate[d] the required material link between [counsel]’s knowledge of the development and implementation of the company’s workplace policies and the issues presented by [Wu’s] lawsuit”].) Notwithstanding the court’s repeated comments that defendants had failed to meet their burden of showing a continuing effect on future proceedings, defendants continue to fail to cite any evidence contradicting the court’s finding that Vella-Andrade could have provided her counsel substantially the same information given her familiarity with the records.

Defendants also do not contest that LVBH could have obtained many (if not all) of the same records through the discovery process and that LVBH’s continued representation therefore would not impact the outcome of the case. (McDermott, supra, 10 Cal.App.5th at p. 1120.) In its ruling on the motion protective order, the court ordered Vella-Andrade to return to defendants the vast majority of the contested documents, but the court also expressly noted that plaintiff could request the same documents “through the proper discovery process.” And even if some of the requested materials are privileged, trial courts can use “an array of ad hoc measures from their equitable arsenal” to permit Vella-Andrade “to attempt to make the necessary proof while protecting from disclosure client confidences subject to the privilege.” (General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1191; see also Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 793, fn. 11 [“[T]he Supreme Court has encouraged trial courts to use such measures to attempt to allow a plaintiff to establish a claim based, in part, on confidential information”].)

Defendant relies on several cases that are distinguishable because, unlike Vella-Andrade, the offending parties in those cases did not have access to the documents at issue in the normal course of their work for the opposing party and thus lacked knowledge of the privileged documents’ content before inappropriately acquiring them. For example, in Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, an attorney obtained and made use of a document he quickly realized was opposing counsel’s work product—specifically, opposing counsel’s notes on his discussions with his client’s experts. (Id. at pp. 811, 819.) Similarly, in Clark v. Superior Court (2011) 196 Cal.App.4th 37, a former employee suing his former company took and based one of his claims on privileged documents, including a confidential and privileged email between the former company’s general counsel and two senior employees. (Clark, at pp. 42–44, 53–54.) In McDermott, supra, 10 Cal.App.5th 1083, defense counsel received from a third party an email from plaintiff’s attorney to plaintiff containing legal advice and options for dispute resolution. (McDermott, supra, 10 Cal.App.5th at pp. 1094.) Unlike Rico, Clark, and McDermott, the record does not demonstrate that Vella-Andrade obtained information from attorney work product or privileged communications to which she never had access. The court therefore did not abuse its discretion in finding that disqualification was unwarranted because Vella-Andrade could provide her attorneys substantially the same information she had obtained from years of working at SBJLG.

Defendants further argue that rule 4.4 of the California Rules of Professional Conduct recently “codified” an attorney’s obligation to comply with its State Fund duties. This observation is unavailing. Rule 4.4 does not address the propriety of disqualification because “the [rules] [only] govern attorney discipline; they do not create standards for disqualification in the courts.” (Antelope Valley Groundwater Cases (2019) 30 Cal.App.5th 602, 621.) Moreover, even if rule 4.4 had been in effect when LVBH violated its State Fund duties, “not all violations of ethical rules mandate disqualification of counsel.” (People v. Baylis (2006) 139 Cal.App.4th 1054, 1073, citing Gregori v. Bank of America, supra, 207 Cal.App.3d at p. 303, fn. 12; Hetos Investments, Ltd. v. Kurtin (2003) 110 Cal.App.4th 36, 47.) Accordingly, the State Bar’s adoption of the State Fund duties in rule 4.4 does not impact our analysis.

In sum, we conclude the trial court did not abuse its discretion in denying defendants’ motion to disqualify LVBH because LVBH’s continued representation of Vella-Andrade will likely have no substantial ongoing effect on the litigation.

DISPOSITION

The judgment is affirmed.

 

_________________________

BROWN, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

TUCHER, J.

Vella-Andrade v. Shannon B. Jones Law Group, Inc. (A153737)