Abdullah v. County of Los Angeles
Filed 9/28/06 Abdullah v. County of Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DAWUD ABDULLAH, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants. | B186950 (Los Angeles County Super. Ct. No. TC018884) |
APPEAL from an order of the Superior Court of Los Angeles County, William P. Barry, Judge. Affirmed.
Pollak, Vida & Fisher, Girard Fisher, Daniel P. Barer, Anna L. Birenbaum; Torres & Brenner and Leonard E. Torres for Defendants and Appellants.
Blumberg Law Corporation, John P. Blumberg and Ave Buchwald for Plaintiff and Respondent.
_________________
INTRODUCTION
This appeal is taken from an order denying the motion of the County of Los Angeles (County), erroneously sued as Harbor UCLA Medical Center, Richard Reznichek, M.D., and John Leppert, M.D. (collectively appellants), to disqualify respondent’s counsel, Nancy Wanski, and her law firm, the Blumberg Law Corporation, from representing respondent in this action against the County.[1] We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent filed his medical negligence action on April 27, 2005 against appellants. His action was based on alleged injuries to his genitalia due to appellants’ failure to treat an infection properly. Appellants answered the complaint and moved to disqualify Wanski and her law firm. The trial court denied the motion on August 26, 2005.
Wanski became an attorney in 1988 and joined the O’Flaherty & Belgum law firm the following year. O’Flaherty & Belgum represented the County from 1993 to 1997, when the firm disbanded. It specialized in the defense of medical malpractice cases and represented the County’s interests in claims involving maternal and fetal injuries. O’Flaherty & Belgum had two offices, one in Glendale and one in Long Beach. Wanski supervised the maternal/fetal injury team from the Glendale office and was involved exclusively in the defense of obstetrical birth injury cases. During her employment with O’Flaherty & Belgum, Wanski worked on 4 of the 48 County cases handled by her firm. In her declaration, she stated that she did not recall anything about the four cases and she had no significant involvement in any other cases involving the County. Additionally, she reported to a separate corporate third-party administrator hired by the County, Professional Risk Management, Inc. (PRM).
DISCUSSION
We are to decide between competing interests in a disqualification motion. A client has a right to chosen counsel. This right may be in conflict with the need to maintain ethical standards of professional responsibility and preserve the public trust.
Generally, a trial court’s decision on a disqualification motion is reviewed under the abuse of discretion standard. (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 705.) “However, the trial court’s discretion is limited by the applicable legal principles.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144.)
Disqualification motions are divided into two general categories governed by different rules: those involving simultaneous representation and those involving successive representation. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283-284.) The issue before this court involves successive representation.
Disqualification motions based upon successive representations involve three categories: those situations in which material confidential information was actually disclosed to the attorney; those situations where knowledge of material confidential information is conclusively presumed; and those situations in which the presumption is rebuttable. (H. F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1452; Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324.) We examine each of these categories in turn, to determine the one into which this case falls.
1. Successive Representations When the Former Attorney Actually Possesses Confidential Information
“A former client may seek to disqualify a former attorney from representing an adverse party by showing the former attorney actually possesses confidential information adverse to the former client.” (H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at p. 1452.) In the case at bar, there is no evidence in the record that Wanski ever received material confidential information when she previously worked for the O’Flaherty & Belgum firm. Consequently, the case does not fall into this category.
2. Disqualification When the Attorney is Conclusively Presumed to Have Received Confidential Information
If the attorney’s representation was direct and personal, the presumption that the attorney actually received material information is conclusive and disqualification is mandatory. (H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at p. 1452.) If the trial court determines that the attorney was not in a direct, personal relationship with the former client, then the trial court must determine if the attorney acquired confidential information. “[E]ven prior direct contact between an attorney and the former client does not necessarily result in disqualification . . . .” (Adams v. Aerojet-General Corp., supra, 86 Cal.App.4th at p. 1335.) The lesser the involvement, the less the weight given to the factual and legal similarities of the two representations.
In Flatt v. Superior Court, supra, 9 Cal.4th at page 283, the court noted: “[W]here a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interest of the first client, the governing test requires that the client demonstrates a ‘substantial relationship’ between the subjects of the antecedent and current representations.” (Italics omitted; see also H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at p. 1452 [“If the former client can establish the existence of a substantial relationship between representations, the courts will conclusively presume the attorney possesses confidential information adverse to the former client.”].)
In H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at page 1455, the Court of Appeal set forth factors to be considered in determining whether a substantial relationship exists: “In his concurring opinion in Silver Chrysler [Plymouth, Inc. v. Chrysler Mot. Corp. (2d Cir. 1975) 518 F.2d 751], Judge Adams suggested an analysis of ‘substantial relationship’ claims which we find logical and compatible with the purpose of the substantial relationship test and, therefore, adopt for purposes of the case before us. Judge Adams suggested the court ‘should focus on the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney’s involvement with the cases. As part of its review, the court should examine the time spent by the attorney on the earlier cases, the type of work performed, and the attorney’s . . . exposure to formulation of policy or strategy.’ (518 F.2d at p. 760 (Adams, J., conc.).)”
To determine if an attorney is to be disqualified in a successive representation case based upon the conclusive presumption of confidential information, the court thus reviews (1) the relationship between the attorney and the former client with respect to the legal problem involved in the former representation; and (2) the relationship between the legal problem involved in the former representation and the legal problem involved in the current representation. (Jessen v. Hartford Cas. Ins. Co., supra, 111 Cal.App.4th at p. 709.) Disqualification depends on the strength of the similarities between the legal problem involved in the former representation and the legal problem involved in the current representation.
Appellants presented evidence that Wanski billed the County for work performed on four matters. There was no evidence as to the amount of billings or the time directed to any of the cases. Wanski, in her declaration, indicated that she had no recollection concerning the cases. In fact, one case, Montes, was filed on May 4, 1992, and was dismissed for lack of prosecution on January 10, 1994. From the evidence presented, it appears that Wanski’s involvement in the four cases in which she billed was indirect only; there is no evidence of direct and personal representation.
Claims against the County for medical malpractice arising at its hospitals and clinics are currently handled by Octagon. At the time Wanski’s former firm represented the County, the third-party administrator was PRM. In its motion for disqualification, the County submitted the declaration of Susan Hopewell declaring that Octagon “is the successor to, and . . . was previously known as, Professional Risk Management, Inc.” Wanski challenged Ms. Hopewell’s assertion and submitted her own declaration with supporting documentary evidence that showed that Octagon was a Minnesota corporation which had been registered in California since 1978 and that PRM was a Delaware corporation. On appeal, “those affidavits favoring the respondent are accepted by the reviewing court as true; and since all intendments are in favor of the ruling of the lower court, the affidavits in behalf of the successful party are deemed not only to establish the facts directly stated therein but all facts reasonably to be inferred from those stated.” (Bonelli v. Chandler (1958) 165 Cal.App.2d 267, 270.) If Octagon simply replaced PRM as the third-party administrator after Wanski had her contact with the County, and Octagon currently handles the responsibility as third-party administrator making decisions concerning the defense of medical malpractice cases, this is another factor mitigating against disqualification of Wanski.
The trial court noted that while at O’Flaherty & Belgum, Wanski worked exclusively on maternal/fetal injury cases and the present case involves an improperly-treated infection to male genitalia. The trial court also accepted evidence submitted by appellants that each of the County’s medical facilities had its own internal policies and procedures. The four cases that Wanski billed for while at O’Flaherty & Belgum did not involve Harbor UCLA Medical Center, the facility involved in the present case. Based on the evidence, the trial court acted properly in reviewing the factual and legal similarities between the present case and the previous cases involving the County handled by Wanski and in concluding that mandatory disqualification was not required.
3. Disqualification May be Required in Successive Representation Cases Where the Attorney is Rebuttably Presumed to Have Received Confidential Information
If a substantial relationship exists between the subjects of the antecedent and current representation and the attorney’s representation of the former client was indirect, the presumption that the attorney actually received material confidential information is rebuttable if the attorney fulfills his “burden of proving he had no exposure to confidential information relevant to the current action while he was a member of the former firm.” (Adams v. Aerojet-General Corp., supra, 86 Cal.App.4th at pp. 1340-1341.) The trial court thus properly determined that Wanski’s membership in her prior law firm through 1997 was not alone enough to warrant disqualification. (Ibid.)
In Farris v. Fireman’s Fund Ins. Co. (2004) 119 Cal.App.4th 671, 686, the court stated that there may be “circumstances where the passage of time might be shown to have eliminated a prior substantial relationship due to such events as changes in corporate structure, turn over in management, and the like.” In the present case, as indicated, claims against the County for medical malpractice are currently handled by Octagon. There was no showing that the litigation procedures of Octagon and PRM were the same. Wanski indicated that she never had contact with Octagon until the pending matter. She was never aware of any confidential policy, procedure or litigation strategy that the County, PRM or Octagon may or may not have had. She further stated that any “litigation strategies” that she used while defending lawsuits at her previous firm were those widely used by defense counsel, i.e., the case and medical records were sent to counsel for evaluation and expert review and then determination of potential exposure, whether to defend, settle or try the case.
Appellants ask that the court use common sense in deciding a disqualification motion. In applying common sense, we have an attorney that handled four cases that she doesn’t remember for the County, the cases she handled were different than the present case, the cases involved different County facilities, and they were handled by a different risk management corporation. Under these circumstances, the trial court properly determined that Wanski did not have exposure to relevant confidential information and need not be disqualified based on her prior representation of the County. (Farris v. Fireman’s Fund Ins. Co., supra, 119 Cal.App.4th at p. 686.)
The order of the trial court denying appellants’ motion to disqualify attorney Wanski and the Blumberg Law Corporation is affirmed.
NOT TO BE PUBLISHED
JACKSON, J.*
We concur:
VOGEL, Acting P. J.
ROTHSCHILD, J.
Publication courtesy of San Diego free legal advice.
Analysis and review provided by Santee Property line Lawyers.
[1] The County filed a petition for writ of mandate raising the issue on September 16, 2005. We denied the petition on September 29, 2005. It filed its notice of appeal on October 20, 2005. It then filed a petition for writ of supersedeas on November 14, 2005. We denied that petition on November 22, 2005.
* Judge of the Superior Court of Los Angeles County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.