N.I.A. et al v. County of Los Angeles et al

Filing 58

ORDER DENYING DEFENDANTS MOTION TO DISQUALIFY OPPOSING COUNSEL 45 by Judge Dean D. Pregerson. (lc) .Modified on 9/29/2016 (lc).

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14

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,

15
Plaintiff,
16
v.
17
18

COUNTY OF LOS ANGELES;
ALBERT MURAD, an individual;
JOSE RUIZ, an individual,

19
Defendants.
20
___________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CV 15-02431 DDP (GJSx)

ORDER DENYING DEFENDANTS’ MOTION
TO DISQUALIFY

[Dkt. 45]

21
22

Presently before the court is Defendants’ Motion to Disqualify

23

Opposing Counsel.

24

parties, the court denies the motion and adopts the following

25

Order.

26

I. Background

27
28

Having considered the submissions of the

Ariana Gebauer was an associate at the Law Offices of John
Burton and represented Plaintiff C.M.G., a minor, in the present

1

case.

(Declaration of Ariana Gebauer, ¶ 1.)

Between May 2014 and

2

November 2014, Ms. Gebauer was employed by Collins Collins Muir +

3

Stewart LLP (CCMS), a firm that represented Defendant County of Los

4

Angeles (“the County”).

5

firm structure in which a partner, a senior associate, and a junior

6

associate were usually assigned to a case.

7

Gebauer was typically assigned to cases as the junior associate.

8

(Id.)

9

the County in N.G.

(Id. at ¶ 2.)

CCMS employed a hierarchal

(Id. at ¶ 5.)

Ms.

During the time of her employment at CCMS, CCMS represented
v. County of Los Angeles, No. 13-cv-008312-SVW

10

(“N.G. v. County”), a 42 U.S.C. § 1983 claim alleging unreasonable

11

use of force by the County and two individual Los Angeles County

12

Sheriff’s Department (“LASD”) deputies.

13

Mathers, ¶ 4.)

14

the case officially and never met with county representatives

15

outside of their capacity as witnesses.

16

Furthermore, she maintains that she did no significant work on any

17

LASD civil shooting cases.

18

(Declaration of Catherine

Ms. Gebauer maintains that she was not assigned to

(Id. at ¶¶ 6,7.)

(Id. at ¶ 8.)

Ms. Gebauer’s supervisor at CCMS, Ms. Mathers, the lead trial

19

attorney on the N.G. v. County case, alleges that Ms. Gebauer

20

worked closely with her on the case and drafted page line summaries

21

of the two individual defendants’ testimonies.

22

5.)

23

information regarding the County’s evaluation and defense of § 1983

24

claims while Ms. Gebauer was assisting her.

25

working with Ms. Mathers, Ms. Gebauer also had access to the entire

26

N.G. v. County case file.

27

While at CCMS, Ms, Gebauer also worked on three civil service

(Decl. Mathers, ¶

Ms. Mathers claims that she told Ms. Gebauer confidential

(Id. at ¶ 6.)

While

(Declaration of Thomas Guterres, ¶ 7.)

28
2

1

matters filed by deputies against the County.

2

Decl. Mathers, ¶ 7.)

3

(Decl. Gebauer, ¶ 8;

Upon leaving CCMS in November 2014, Ms. Gebauer joined Kessel

4

& Associates and worked there for approximately three months.

5

(Decl. Gebauer, ¶ 14.)

6

cases in which the firm defended the County, neither of which

7

involved an excessive force allegation.

8
9

While at Kessel, Ms. Gebauer worked on two

(Id.)

In May 2015, Ms. Gebauer joined the Law Offices of John
Burton.

(Id. at ¶ 15.)

Before hiring Ms. Gebauer, Mr. Burton

10

vetted her for any conflicts of interest.

11

Burton, ¶ 3.)

12

Gebauer began working on the cases in his office, including this

13

case.

14

attorneys of record in this case, informing them that Ms. Gebauer

15

would be handing discovery.

16

2016, during a teleconference with defense counsel, Ms. Gebauer

17

stated that she “knew the type and nature of confidential LASD

18

documents referenced within the Stipulation for Protective Order’s

19

paragraph five, ‘Good Cause Statement and Confidential Materials,’

20

because of her prior representation of Defendant County.”

21

(Declaration Carmen Aguado, ¶ 3.)

22

(Declaration of John

Once Mr. Burton determined no conflict existed, Ms.

(Id. at ¶ 5.)

On January 6, 2016, Mr. Burton emailed all

(Id. at ¶ 8, Ex. A.)

On January 26,

Following this disclosure, defense counsel, Carmen Aguado,
(Id. at ¶ 4.)

23

began researching Ms. Gebauer’s prior employment.

24

On March 25, 2016, Aguado sent Ms. Gebauer and Mr. Burton a meet

25

and confer letter outlining the grounds for this motion.

26

(Id. at ¶ 8.)

27

Gebauer and Mr. Burton continued to work on this case, including

28

responding to seventy-six requests for production of documents, one

During this time, and up until March 28, 2016, Ms.

3

1

hundred and three requests for admission, and twenty-fixe

2

interrogatories.

(Decl. Burton, ¶ 15.)

3

In July 2016, Ms. Gebauer accepted employment at the Riverside

4

County Public Defender’s Office and has withdrawn as an attorney of

5

record on this case.

6

Defendants now move to disqualify Ms. Gebauer’s former employer,

7

the Law offices of John Burton, pursuant to California Rule of

8

Professional Conduct, 3-310 (E).

9

II.

10

(Supplemental Decl. Ariana Gebauer, ¶¶ 2,3.)

LEGAL STANDARD
Motions to disqualify counsel are governed by state law.

W.

11

Sugar Coop. v. Archer-Daniels-Midland Co., 98 F. Supp. 3d 1074,

12

1080 (C.D. Cal. 2015).

13

attorney derives from the power inherent in every court to control

14

in furtherance of justice, the conduct of its ministerial

15

officers.”

16

Change Sys., Inc., 20 Cal. 4th 1135, 1145 (1999).

17

Rule of Professional Conduct 3-310 (E),

18
19
20

A trial court’s power “to disqualify an

People ex rel. Dept. of Corporations v. SpeeDee Oil
Under California

“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.”

21
Courts have recognized that conflicts arising from successive
22
representation of clients with potentially adverse interests
23
jeopardize the former client’s confidentiality.

See Flatt v.

24
Superior Court, 9 Cal. 4th 275, 282 (1995).

In reviewing a motion

25
to disqualify, a court should consider “a client’s right to chosen
26
counsel, an attorney’s interest in representing a client, the
27
financial burden on a client to replace disqualified counsel, and
28
4

1

the possibility that tactical abuse underlies the disqualification

2

motion.”

3

Supp. 3d at 1080.

4

attorney who successively represents a new client in a matter that

5

is adverse to the former client, a “substantial relationship” must

6

exist between the subject of the current litigation and prior

7

litigation.

8

Francisco v. Cobra Solutions, Inc., 38 Cal. 4th 839, 847 (2006).

9

The substantial relationship test balances the new client’s right

SpeeDee Oil, 20 Cal. 4th at 1145; W. Sugar Coop., 98 F.
Where a former client seeks to disqualify an

Flatt, 9 Cal. 4th at 283; City and County of San

10

to counsel of choice and the former client’s right to

11

confidentiality.

12

Flatt, 9 Cal. 4th at 283.

To determine whether a substantial relationship exists, the

13

court first determines whether there was a direct professional

14

relationship between the former client and the attorney.

15

Solutions, 38 Cal. 4th at 847.

16

where ‘the attorney had a direct professional relationship with the

17

former client in which the attorney personally provided legal

18

advice and services on a legal issue that is closely related to the

19

legal issue in the present representation.’”

20

Company, 215 Cal. App. 4th 916, 920 (2013) (citing Jessen v.

21

Hartford Casualty Ins. Co. 111 Cal. App. 4th 698, 710-711 (2003)).

22

Where there is no direct professional relationship, “then the court

23

examines both the attorney’s relationship to the prior client and

24

the relationship between the prior and the present representation.”

25

Cobra Solutions, 38 Cal. 4th at 847.

26

Cobra

“A substantial relationship exists

Khani v. Ford Motor

In order for a substantial relationship to exist, information

27

“material to the evaluation, prosecution, settlement or

28

accomplishment of the former representation given its factual and
5

1

legal issues” must also be material to the present representation.

2

Khani, 215 Cal. App. 4th at 921.

3

former client’s practices, including the client’s litigation

4

philosophy, that is not of critical importance does not warrant

5

disqualification.

6

(“[F]or example, the attorney’s acquisition during the first

7

representation of general information about the first client’s

8

‘overall structure and practices’ would not of itself require

9

disqualification unless it were found to be ‘material’ –i.e.,

General information about a

Id.; See also Farris, 119 Cal. App. 4th at 680

10

directly in issue of critical importance–in the second

11

representation.”).

12

If a substantial relationship exists, the attorney is

13

disqualified from representing the second client.

14

38 Cal. 4th at 847 (Citing Flatt, 9 Cal. 4th at 283); SpeeDee Oil,

15

20 Cal. 4th at 1146.

16

presumed to have confidential information and is therefore

17

vicariously disqualified from representing the second client.

18

III. Discussion

19

Cobra Solutions,

Additionally, the attorney’s law firm is also

Id.

As Ms. Gebauer is no longer employed by the Law Offices of

20

John Burton (LOJB), the only question before the court is whether

21

LOJB should be disqualified from the case due to Ms. Gebauer’s

22

prior work on the matter.

23

court must determine whether dismissing Ms. Gebauer would have been

24

warranted had she continued her employment at the firm.

25

In order to address this issue, the

First, Defendants contend that, during her time at CCMS, Ms.

26

Gebauer represented the County in matters that involved factual

27

scenarios and legal issues similiar to those presented in the

28

instant case.

(Motion at 9:4-6.)

Defendants argue that Ms.
6

1

Gebauer’s involvement in N.G. v. County gave her access to the

2

County’s litigation strategy and budget in defending §1983 cases.

3

(Id. at 9:20-21.)

4

was never officially assigned to the case, and that her only role

5

in N.G. v. County was to summarize a few witness depositions, which

6

gave her no access to confidential information.

7

3:6-17).

8
9

Plaintiffs, however, contend that Ms. Gebauer

(Opposition at

The court agrees with Plaintiffs’ contention that in her
capacity on the case, Ms. Gebauer would not have encountered the

10

type of confidential information that would disqualify her from

11

representing Plaintiffs in this matter.

12

never assigned to N.G. v. County, her relationship with the

13

Defendant County in that case was tangential.

14

Gebauer’s experience conducting initial client interviews with LASD

15

deputies in another matter related to a different section 1983

16

lawsuit (Zulma Trana v. County of Los Angeles, Case No. BC534547

17

(Gutteres Decl. ¶ 8)) constitute a “direct professional

18

relationship” with the County.

19

the relationship between the prior and present representations.

20

Khani, 215 Cal. App. 4th at 920.

21

Because Ms. Gebauer was

Nor does Ms.

Therefore, the court must assess

While Ms. Gebauer might have been exposed to some general

22

information about the County’s approach to section 1983 cases

23

during her employment at CCMS, such general strategy is not of

24

critical importance and does not warrant dismissal.

25

Cal. App. 4th at 921; Farris, 119 Cal. App. 4th at 680.

26

N.G. v. County, like this case, was a § 1983 claim, the first case

27

was dissimilar, insofar as it involved different named-defendant

28

deputies from a different LASD substation and, significantly,
7

Khani, 215
Although

1

involved the shooting of a decedent who was already in custody.

2

(Decl. Gebauer, ¶ 7.)

3

Apart from arguments regarding Ms. Gebauer’s work on N.G. v.

4

County, Defendants contend that Ms. Gebauer’s representation of the

5

County in civil service matters involving LASD deputies, exposed

6

her to confidential information relating to LASD training on the

7

use of force.

8

these cases were brought against the County by LASD deputies for

9

disciplinary actions taken against them for their use of excessive

(Mot. at 10:5-8; Gutteres Decl. ¶ 9).

However,

10

force.

11

strategies, and facts of those cases are not related to the present

12

case.

13

(Guterres Decl. ¶ 10.)

As such, the legal issues,

Given the loose relationship between the cases Ms. Gebauer

14

worked on and the present case, it does not appear that Ms.

15

Gebauer’s employment prior to working at LOJB made her privy to

16

information material to the disposition or settlement of this case.

17

Therefore, no substantial relationship exists between this case and

18

previous ones.

19

The lack of a substantial relationship between this case and

20

previous ones would not warrant the disqualification of Ms.

21

Gebauer.

22

disqualified from this case if she were still an employee with

23

LOJB, the court also finds that disqualification of the firm is

24

inappropriate.

25

//

26

//

27

//

28

//

Having determined that Ms. Gebauer would not be

8

1
2
3

IV. Conclusion
For the reasons stated above, Defendants’ Motion to Disqualify
is DENIED.

4
5

IT IS SO ORDERED.

6
7
8

Dated: September 29, 2016
DEAN D. PREGERSON
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9