Umbrasas v. Amgen

Filed 5/4/06 Umbrasas v. Amgen CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SIX

For several years, attorney Allen Graves was employed by a law firm which regularly represented appellant Amgen Inc. in employment matters. Within weeks after leaving the firm, Graves undertook the representation of respondent Edmund Umbrasas in this action concerning employee rights. Amgen filed a motion to disqualify Graves from representing Umbrasas. Amgen appeals the denial of its motion, contending that the trial court abused its discretion. After the notice of appeal was filed, a final judgment in the case was entered in favor of Amgen. We dismiss the appeal as moot.

FACTS AND PROCEDURAL HISTORY

In March 2004, Umbrasas filed a class action complaint alleging that Amgen failed to post required information regarding employee whistleblower rights, minimum wages and other matters, and that Amgen forced employees to sign an unlawful arbitration agreement. (See Lab. Code, §§ 432.5, 1102.8, 1183.)[1] Attorney Allen Graves represented Umbrasas in the action.

In June 2004, Amgen filed a motion to disqualify Graves as Umbrasas' attorney. The motion states that, for a period of four years ending shortly before the action was filed, Graves was employed as an associate in a large law firm that represented Amgen in numerous matters. Amgen argued that, while employed by the law firm, Graves had access to confidential information concerning Amgen that was relevant to the instant action. In opposition, Umbrasas argued that Graves had no exposure to confidential information because he never personally represented Amgen in any matter.

The trial court denied Amgen's motion. The court agreed with both Amgen and Umbrasas that the controlling legal authority is Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324. Adams concerns the standard for disqualification when an attorney represents interests adverse to those of a client of his or her former law firm, but where the attorney did not personally represent the client during his or her association with the firm. "The court's task, under these circumstances, is to determine whether confidential information material to the current representation would normally have been imparted to the attorney during his tenure at the old firm." (Id., at p. 1340.)

The trial court concluded that it was not reasonably probable that Graves acquired confidential information by virtue of his previous association with the law firm that represented Amgen.

In September 2004, Amgen filed a notice of appeal of the trial court's order denying disqualification. On May 26, 2005, judgment was entered in favor of Amgen. The judgment recited that all of Umbrasas' claims had been resolved favorably to Amgen through demurrer, summary adjudication, and judgment on the pleadings. After Amgen filed its opening brief in this appeal, the judgment became final.

DISCUSSION

Amgen contends that the trial court erred in denying its motion for disqualification by misapplying the legal standard set forth in Adams v. Aerojet-General Corp., supra, 86 Cal.App.4th at page 1340. An order granting or denying a motion to disqualify opposing counsel is appealable (Federal Home Loan Mortg. Corp. v. La Conchita Ranch Co. (1998) 68 Cal.App.4th 856, 860), but the instant appeal has become moot by virtue of a final judgment in the case. Accordingly, we will dismiss the appeal without consideration of its merits.

Courts decide cases, not issues. An appellate court will not consider moot questions or abstract propositions of law, and an appeal should be dismissed as moot when an event occurs which renders it impossible for the court to grant appellant any effective relief. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132; see also Vernon v. State (2004) 116 Cal.App.4th 114, 120-121.)

It is manifest that we cannot grant Amgen the relief it requests, disqualification of Graves from the case, because the case has been finally adjudicated on unrelated grounds and is no longer pending. "In the present posture of the case, a decision on the merits would involve the court in a purely academic exercise. There is no actual controversy upon which a judgment could operate nor any effective relief which could be granted to either party. [Citation.]" (Bell v. Board of Supervisors (1976) 55 Cal.App.3d 629, 637.)

Amgen does not dispute the existence of a final judgment, but argues that an appellate court has discretion to decide cases that, although moot, involve issues of broad public interest that are likely to recur, or where it is likely that there will be a recurrence of the same controversy between the same parties. (Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 172; Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480.) Amgen does not contend that the instant appeal involves an issue of broad public interest, but argues that there is a legal controversy over Robert Graves' representation of clients in actions against Amgen that is likely to recur in the future.

In support of its argument, Amgen relies upon the filing of a second lawsuit by Umbrasas, represented by Graves, which precipitated a second motion by Amgen to disqualify Graves. And, the trial court granted the motion in the second case.[2] Amgen asserts that the second case proves its point that the appeal concerns a recurring controversy between the same parties. We disagree, and conclude that this is not an appropriate case for the exercise of our discretionary authority to decide the merits of the appeal.

That Graves represented Umbrasas in two lawsuits against Amgen, standing alone, does not persuade us that Umbrasas is likely to be a regular plaintiff in actions against Amgen, or that the same controversy is likely to recur in the future. Amgen is speculating that Graves may represent future clients with interests adverse to those of Amgen and, in effect, seeks an advisory opinion covering the circumstances under which Graves may do so.

Although future cases might involve the same plaintiff's lawyer, they are not likely to involve the same plaintiff or the same controversy. A decision on the merits of the instant appeal would only determine whether the trial court abused its discretion in denying disqualification on the particular facts of the instant case, and is not likely to have the prophylactic effect of forestalling further litigation regarding Graves' representation in future actions against Amgen. "Because plaintiffs' claim is a particularly factual determination that must be resolved on a case-by-case basis, dependent upon the specific facts of a given situation, it is not one on which we would exercise our discretion to address on the merits, despite the fact that it is moot." (Giles v. Horn (2002) 100 Cal.App.4th 206, 228.)

A review of the case law supports our conclusion. In general, courts will decide the merits of otherwise moot appeals when the same dispute between the same parties is very likely to recur in the future, or when the issue is of broad public concern but arises in situations that might evade normal appellate review. (See, e.g., Edelstein v. City and County of San Francisco, supra, 29 Cal.4th at pp. 171-172 [election]; Conde v. City of San Diego (2005) 134 Cal.App.4th 346, 349-350 [term limit ordinance]; Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 144 [end of school year temporarily mooted dispute]; Vernon v. State, supra, 116 Cal.App.4th at p. 121 [dispute temporarily mooted by six-month exemption from regulation]; Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 147-148 [duty to place initiative on ballot].)

Conversely, courts are unlikely to decide a moot appeal on its merits when the issues are essentially factual and require resolution on a case-by-case basis. (See MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 215.) Although the general issue of attorney disqualification is of continuing importance, the instant appeal involves the application of an undisputed legal standard to the facts of a particular case.

Amgen also argues that, even if we decline to consider the merits of the appeal, we should not simply dismiss the appeal because such dismissal would constitute an implied affirmance of the trial court's order. Instead, Amgen urges us to reverse the order and remand to the trial court with directions to enter a new order denying the motion on mootness grounds. We decline to do so.

Involuntary dismissal of an appeal operates as an affirmance of the judgment or order appealed from. (City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 492; County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1005.) Because of this

rule, when mootness eliminates the basis for a judgment, an appellate court will not merely dismiss the appeal but, instead, will reverse the judgment with directions to the trial court to dismiss the action. (See Paul v. Milk Depots, Inc., supra, 62 Cal.2d at p. 134; Shelton, supra, at p. 1005.) "This approach disposes of the case, not merely the proceeding that brought it to the appellate court." (Shelton, at p. 1005.) "Such a reversal, of course, does not imply approval of a contrary judgment, but is merely a procedural step necessary to a proper disposition of this case." (Paul, at pp. 134-135.)

Here, we cannot reverse the judgment and order the case dismissed. The judgment is unchallenged and unrelated to the issues which have become moot.

Amgen argues that we can simply "reverse" the trial court's order and remand for a new order denying the disqualification motion on the ground of mootness. Apart from the problem of taking action in a case which has been adjudicated without an appeal of the judgment, Amgen offers no reason for us to do so. Amgen does not contend that an implied affirmance of the trial court's order will have any legal consequences that might prejudice Amgen in the future.

Unlike the cases where the judgment is reversed, dismissal of the appeal in the instant case does not leave an inconsistent order that creates ambiguity or confusion as to the outcome of the case. (See Giles v. Horn, supra, 100 Cal.App.4th at p. 229; In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 257-258.) Since the case is no longer pending, Graves' representation of Umbrasas is a dead issue. Further, Amgen does not assert that an implied affirmance of the order denying disqualification will have any res judicata or collateral estoppel effect to preclude further litigation of disqualification issues in any subsequent case.

The appeal is dismissed. Costs are awarded to respondent.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Henry J. Walsh, Judge

Superior Court County of Ventura

______________________________

O'Melveny & Myers, Scott H. Dunham, David L. Herron; Nordman, Cormany, Hair & Compton, Jonathan F. Light and Susan M. Seemiller for Appellant.

Graves & Associates and Allen W. Graves for Respondent.

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[1] The action is authorized by the Labor Code Private Attorneys General Act of 2004 which provides that any civil penalty that may be "assessed and collected by the Labor and Workforce Development Agency . . . may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees . . . ." (Lab. Code, § 2699, subd. (a).)

[2] The second case has been dismissed and the disqualification order in that case also has become moot.