Case Number: BC713294 Hearing Date: February 20, 2020 Dept: 32

Superior Court of California
County of Los Angeles
Department 32

phyllis lunine,

Plaintiff,

vs.

costco wholesale corporation,

Defendant.

Case No.: BC713294

Hearing Date: February 20, 2020

[TENTATIVE] order RE:

MOTION to disqualify counsel

Background

Plaintiff Phyllis Lunine (“Plaintiff’) filed this action after she tripped and fell at a store owned and operated by Defendant Costco Wholesale Corporation (“Defendant” or “Costco”). Now, Defendant moves to disqualify Plaintiff’s counsel because an employee of Defendant’s counsel’s firm now works at Plaintiff’s counsel’s firm. Plaintiff opposes the motion, which is denied.

LEGAL STANDARD

“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 and 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.)

DISCUSSION

Defendant has proffered evidence that Frederico Stea (“Stea”) worked as a law clerk at Defendant’s counsel’s firm, Yukevich Cavanaugh (collectively, “Defendant’s Counsel”). Stea worked at Defendant’s Counsel from August 2017 to May 2019. (Declaration of James J. Yukevich, ¶¶ 6, 15.) The instant case was filed on July 12, 2018.

There is no evidence that Stea worked on this particular case. To the contrary, the declaration proffered by Defendant’s Counsel suggested otherwise because it does not reference this case among those on which Stea worked. (Id., ¶ 8.) Instead, Defendant predicates this motion on Stea having worked on “similar if not identical” cases. (Id., ¶ 10.) Specifically, Stea worked on “the team of attorneys and paralegals handling the defense of Costco in at least twenty (20) different actions.” (Declaration of James J. Yukevich, ¶ 8.) Two specific cases were filed by Plaintiff’s counsel. (Ibid.) Stea’s duties included “[p]reparing drafts of initial case evaluations for Costco . . . including (1) a particular plaintiff’s counsel, including his or her education, experience, and verdict and settlement history; (2) analysis of the venue, including the assigned judge’s education and experience and relevant past rulings, the statistical data for the applicable jury pool and whether Costco considers a particular jury pool favorable; (3) summaries of the plaintiff’s alleged causes of action; (4) analyses of defenses including identification of the applicable statutes of limitations and other issues that may support a demurrer as to causes of action or motion to strike claims for damages; (5) analyses and summaries of privileged and confidential Costco client materials; (6) summaries of the plaintiffs alleged injuries, including calculation of alleged medical expenses; and (7) strategic recommendations, proposed handling, and action items for the defense of the case.” (Declaration of James J. Yukevich, ¶ 12.) Defendant also proffers evidence that Stea “had access to Costco case files and was tasked with analyzing case files, identifying critical documents in each, and maintaining the critical documents in each case.” (Declaration of James J. Yukevich, ¶ 14.) Further, Defendant represents that Stea learned Defense Counsel’s case evaluation approach and litigation defense strategy as it pertained to Costco.” (Declaration of James J. Yukevich, ¶ 14.)

However, Defendant has not demonstrated anything more than “the prior cases were substantially related to the current case just because they involved [similar] claims . . .,” i.e., all of the cases are personal injury matters. (Khani v. Ford Motor Co. (2013) 215 Cal.App.4th 916, 922.) “[E]xposure to playbook information in prior” cases is not sufficient to support disqualification “without any showing of its materiality.” (Ibid.) Defendant has not demonstrated that the prior cases on which Stea worked are so similar to this action that any information Stea obtained about Defense Counsel’s approach and strategies is necessarily pertinent to this case. To the contrary, the record suggests that the two case filed by Plaintiff’s counsel involved different plaintiffs and different Costco locations. (Declaration of Siamak Vaziri, ¶ 2.) Accordingly, Defendant has not shown that the presumption arises that Stea obtained confidential information about Defendant in his work for Defendant’s Counsel.

Even if such a presumption did arise, Plaintiff has proffered evidence sufficient to defeat the presumption. In opposition, Plaintiff advances the declaration of her counsel, Siamak Vaziri (“Plaintiff’s Counsel.”) Plaintiff’s Counsel states that Stea does not work on any matters involving Defendant. (Id., ¶ 3.) Plaintiff’s Counsel states that he implemented ethical screens prior to Stea’s employment at the firm. (Ibid.) Specifically, Plaintiff’s Counsel implemented “tailored email distribution lists” that preclude Stea from receiving emails relating to cases against Defendant. (Id., ¶ 5.) Further, Plaintiff’s Counsel states that all files on cases against Defendant are kept “in locked file cabinets labeled ‘Costco—Subject to Ethical Screen—Restricted Access . . . ,’” and to which Stea does not have a key. (Ibid., emphasis omitted.)) Further, Plaintiff’s Counsel states that all employees were informed that any violation of the screen could result in their termination. (Ibid.)

Plaintiff also proffers a declaration from Stea. Stea states that his only conversations with Plaintiff’s Counsel regarding his work for Defendant have been regarding the ethical screen, or to provide Plaintiff with information to oppose the disqualification motions. (Declaration of Federico Stea, ¶ 8.) Plaintiff has advanced evidence to show that Stea did not pass along any confidential information to Plaintiff’s Counsel. Accordingly, disqualification is unwarranted. If Stea did not share confidential information with Plaintiff’s Counsel, then there is no basis for disqualification, other than to punish Stea for switching sides. “[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.)

Conclusion and Order

Defendant’s motion to disqualify counsel is denied. The Court lifts the stay that it imposed on February 3, 2020. The Court takes Defendant’s noticed motion for a stay pending the Court’s ruling on this motion off-calendar as moot. Defendant shall provide notice and file proof of such with the Court

DATED: February 20, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court