Opinion
G053136
08-29-2017
NILI N. ALAI, M.D. et al., Plaintiffs and Appellants, v. BARBARA YA-HUI SHANG, M.D., Defendant and Respondent.
Nili N. Alai, M.D., and Sam Nabili, in pro. per.; and Everett L. Skillman for Plaintiffs and Appellants. Cole Pedroza, Kenneth R. Pedroza, Maureen M. Home; Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, Robert L. McKenna and Benjamin T. Ikuta for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00591704) OPINION Appeal from an order of the Superior Court of Orange County, Peter J. Wilson, Judge. Affirmed. Request for judicial notice. Denied. Nili N. Alai, M.D., and Sam Nabili, in pro. per.; and Everett L. Skillman for Plaintiffs and Appellants. Cole Pedroza, Kenneth R. Pedroza, Maureen M. Home; Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, Robert L. McKenna and Benjamin T. Ikuta for Defendant and Respondent.
* * *
INTRODUCTION
Dr. Nili N. Alai and her husband Sam Nabili (plaintiffs) appeal from the trial court's order denying their motion to disqualify defendant Dr. Barbara Ya-Hui Shang's attorneys, the law firm of Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, including Benjamin Ikuta, from further participation in this lawsuit. Plaintiffs sued Shang for medical malpractice and loss of consortium after Alai allegedly contracted an eye infection following an ophthalmology appointment with Shang.
We affirm. The trial court properly denied the motion to disqualify counsel because no evidence showed Ikuta (1) solicited or received confidential information protected by the attorney-client privilege and/or attorney work product doctrine; (2) persuaded Cheryl Leggett, one of Shang's other patients, to be unavailable as a witness in violation of rule 5-310(A) of the California Rules of Professional Conduct; or (3) shared information that was marked confidential under the parties' protective order with counsel in another lawsuit filed by Alai.
BACKGROUND
I.
THE COMPLAINT
In August 2012, plaintiffs filed a form complaint against Shang, an ophthalmologist, for medical malpractice and loss of consortium. Plaintiffs' claims were based on the following allegations.
Alai was Shang's patient, "pertaining to the care and treatment of her vision." Some time before August 17, 2011, Shang became aware that several of her patients had contracted an "EKC infection," but she "failed to notify any subsequent patients including [Alai] of the prior exposure or take the necessary steps in order to prevent other patients from contracting the disease."
The complaint further alleged that on August 17, 2011, Alai contracted "a highly contagious EKC eye infection" during an appointment with Shang "due to unsterile ophthalmologic equipment present in [Shang's] medical office examination rooms." Shang was "further negligent by failing to properly maintain the ophtha[l]mologic office examination rooms and ophtha[l]mologic equipment and waiting areas in such a condition to prevent adenoviruses such as EKC virus from being transmitted from one patient to another" and by failing "to maintain adequate policies and procedures to help maintain the ophthalmologic equipment, examination rooms and waiting rooms, in such a condition to prevent the transmission of adenoviruses such as EKC from infecting other patients."
The complaint also alleged Alai sustained "severe and permanent damage to her vision . . . [which] requires her to undergo ongoing medical treatment and has caused her to miss time away from her dermatology practice." In addition, she alleged that, as a result of the foregoing, she would require future medical care for the condition, would suffer loss of past earnings and future earning capacity, and had experienced pain and suffering.
As to Nabili, the complaint alleged that Shang's negligence resulted in him having been and continuing to be "deprived of the consortium and of the conjugal fellowship and sexual relations of his spouse," and would result in the deprivation "of the physical, domestic and other assistance in the operation of [their] home and of the household services of . . . Alai."
II.
PLAINTIFFS FILE A MOTION TO DISQUALIFY SHANG'S COUNSEL.
Trial was set for September 14, 2015. On August 24, 2015, plaintiffs filed a motion to disqualify Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, the law firm that represented Shang and for which Ikuta works, from "further representation in this proceeding." In the memorandum of points of authorities filed in support of the motion, plaintiffs argued, as relevant to the issues on appeal, that Ikuta solicited and received plaintiffs' privileged work product through contacts with Connie Parker, who was formerly employed by Alai's medical practice, and Parker's attorney.
Plaintiffs also argued that Ikuta engaged in witness tampering because one of Shang's patients, Cheryl Leggett, was originally cooperative in communicating with plaintiffs' counsel but within a short time period refused to answer questions pertaining to her visits with Shang or her medical condition. Plaintiffs further argued Ikuta failed to adhere to applicable ethical standards because plaintiffs suspected he had shared information he obtained through discovery, which was marked confidential under the parties' protective order, with counsel in another lawsuit filed by Alai.
Specifically, plaintiffs argued deposition testimony of Alai's colleague, Dr. Gary Cole, which had been marked confidential, must have been shared with an attorney in Alai's unrelated lawsuit filed in Santa Clara County because when Alai was deposed in that other lawsuit, the defendant's counsel asked questions regarding Dr. Cole. Plaintiffs argued that Ikuta, therefore, must have shared portions of Cole's testimony with the defendant's counsel in that case. Plaintiffs also argued the fact the defendant's counsel in the Santa Clara County action referenced at least one exhibit that was marked confidential pursuant to the protective order in the instant action further supported their theory that Ikuta shared information in violation of the protective order.
Shang filed a written opposition to the motion.
III.
THE TRIAL COURT DENIES THE MOTION TO DISQUALIFY COUNSEL; PLAINTIFFS APPEAL.
At the hearing on the motion, the trial court stated to plaintiffs' counsel: "[T]rust me, this was an 8-foot record I scrubbed very carefully; hence the very long tentative. And there is plenty of speculation, there's plenty of argument, there's plenty of suggestion about what somebody may know. [¶] If you have facts that tell me how anyone on the defense team does know, did interfere, did obtain what would be improper information, now is your chance because it's not in your papers. And if it's in your papers and I've missed it, please tell me where." Plaintiffs' counsel proceeded to "highlight some of the arguments."
The court responded, "[Plaintiffs' counsel], appreciate the bar that I'm having you jump over here. You are seeking to disqualify the selected attorney of the other party. If you put yourself in his shoes, I think you'd be the first to be telling me that my client gets to use who they would like to use, and unless it is very clear that I have done something wrong, inappropriate, unethical, I'm entitled to be my client's lawyer. [¶] So it's not just give me something and I'll say, oh, shucks, let's switch lawyers. I need facts to base this on. And this example with the witness who was deposed and who swore under oath, I'm not pretending I'm clairvoyant as to what everybody said to everybody either, but I'm going to base my decision on, if not facts alone, certainly reasonable inferences to be drawn from such facts as I have.
"And the reason I'm inviting you to give me those facts as opposed to the conclusions you're drawing from them is that it was the absence of facts to support the concerns that really drive me to the conclusion. . . . If there are facts that you don't think I am sufficiently weighing that support the concerns, then tell me what those are. But otherwise simply repeating concerns based upon speculation on speculation, that's not getting me there." After plaintiffs' counsel continued to argue regarding issues not directly relevant to the issues on appeal, the trial court stated: "I am not persuaded by anything I've heard . . . . This is a case in which the parties seem determined to try the case on anything except the merits, but it will go forward on the merits, at least for the time being."
The court denied the motion, stating its lengthy tentative statement of reasons would become the court's final ruling. Plaintiffs appealed from the order denying the motion to disqualify.
An order denying a motion to disqualify opposing counsel is appealable "either as a denial of injunctive relief or as a collateral matter unrelated to the merits of the underlying litigation." (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300, fn. omitted; see Meehan v. Hopps (1955) 45 Cal.2d 213, 216-217.) --------
DISCUSSION
I.
STANDARD OF REVIEW
"The trial court's decision on a motion for disqualification is usually reviewed for abuse of discretion. [Citation.] The court's discretion is limited by the applicable legal principles and is subject to reversal when there is no reasonable basis for the action. [Citation.] '[W]here there are no material disputed factual issues, we review the trial court's determination as a question of law, and we defer to a trial court's express or implied factual decisions on disputed factual issues only if that decision is supported by substantial evidence. Importantly, although an inference can serve as substantial evidence for a finding, "'the inference must be a reasonable conclusion from the evidence and cannot be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork. [Citation.] Thus, an inference cannot stand if it is unreasonable when viewed in light of the whole record.'"'" (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 685 (DeLuca).)
"'The trial court's power to disqualify counsel is derived from the court's inherent power "[t]o control in furtherance of justice, the conduct of its ministerial officers." [Citations.] Disqualification motions implicate several important interests, among them are the clients' right to counsel of their choice, the attorney's interest in representing a client, the financial burden of replacing a disqualified attorney, and tactical abuse that may underlie the motion. [Citation.] The "paramount" concern in determining whether counsel should be disqualified is "the preservation of public trust in the scrupulous administration of justice and the integrity of the bar." [Citations.] It must be remembered, however, that disqualification is a drastic course of action that should not be taken simply out of hypersensitivity to ethical nuances or the appearance of impropriety.'" (DeLuca, supra, 217 Cal.App.4th at pp. 685-686.)
II.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING THE MOTION TO
DISQUALIFY COUNSEL.
A.
There Is No Evidence Ikuta Solicited or Received Information Protected by Either the
Attorney-client Privilege or Attorney Work Product Doctrine.
Citing Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 819 (Rico), plaintiffs argue Ikuta solicited and received confidential information from Alai's former employee Connie Parker, who Alai contends served as a paralegal thereby triggering protections under the attorney-client privilege and the attorney work product doctrine.
It is true that, under certain circumstances, an attorney may be disqualified for mishandling an opponent's confidential information inadvertently received by the attorney. "'"[M]ere exposure"'" however, "to an adversary's confidences is insufficient, standing alone, to warrant an attorney's disqualification." (Rico, supra, 42 Cal.4th at p. 819.) It is, however, possible that "'in an appropriate case, disqualification might be justified if an attorney inadvertently receives confidential materials,'" he or she fails to handle that situation in accordance with legal precedents, and "' other factors compel disqualification.'" (Ibid.)
Here, the trial court's minute order containing its final ruling on the motion to disqualify counsel made clear the court's finding that there was no evidence Ikuta received any confidential or privileged information—inadvertently or otherwise. The court's minute order stated: "Plaintiffs have not established a reasonable probability that defense counsel has obtained any confidential, material information through improper means. The only evidence of any confidential information passing from Connie Parker (Parker) to defense counsel at Carroll, Kelly, Trotter, Franzen, McKenna & Peabody (Carroll Kelly) consists of speculation. The fact that defense counsel may have contacted Parker and her independent counsel to discuss Parker's employment with Dr. Alai/The Skin Center does not give rise to an inference of impropriety or a presumption that confidential information has passed, particularly in light of defense counsel's declaration affirmatively and credibly attesting to the contrary . . . ."
The trial court's findings are directly supported by Ikuta's declaration, filed in opposition to the motion to disqualify, detailing, inter alia, his contact with Parker. Ikuta's declaration stated that after Alai asserted that her employees came down with EKC, Shang propounded a special interrogatory to Alai asking her to provide the names and titles of all her employees from January 2011 to the present. After Alai failed to respond, Shang filed a motion to compel a response, the court ordered Alai to respond, and Alai missed the court's deadline to respond, Alai's counsel e-mailed a list of the names of 56 employees to Ikuta. Shortly thereafter, Ikuta received an anonymous letter in an envelope that simply stated "Parker v. Alai 30-2015-00767937-CU-OE-CJC." Ikuta looked up the case number online and found Parker's wrongful employment termination complaint against Alai. Alai had not included Parker's name in the list of 56 employees. Ikuta then contacted Parker's attorney who provided Ikuta with Parker's contact information and permission to speak with her.
In his declaration, Ikuta also stated he did not know anything about Parker when he spoke with her other than the fact of her lawsuit against Alai, as described by her complaint. He did not know she had gone to law school, had legal experience, or that she had responded to a solicitation by Alai for paralegal assistance.
Ikuta declared that during his telephone conversation with Parker, she said she had signed a nondisclosure agreement and was unable to provide much, if any, information surrounding the terms or details of her employment with Alai at The Skin Center. Ikuta stated Parker did not disclose any work she performed for plaintiffs, or any communications with plaintiffs' attorneys or plaintiffs themselves. She did not provide any documents to Ikuta and did not identify or reveal the existence of any documents. Ikuta stated "[a]t no time did I ask for, did Connie Parker offer, or did Connie Parker convey any information that could have been potentially covered by the attorney-client privilege." He further stated "[t]he only information that Ms. Parker provided was that Plaintiff's office was filthy and unsanitary, that Plaintiff almost never cleaned her office or her equipment, and that she personally believed that Plaintiff likely caught her eye infection from her own office. Ms. Parker stated that she considered the unsanitary conditions dangerous to employees and reported these safety hazards to Plaintiff. These facts are one of the main points underlying Ms. Parker's retaliation and wrongful termination lawsuit against Plaintiff in her public lawsuit."
Ikuta stated that he informed Parker that "[t]o be safe" it would be best to depose her on the record in light of the nondisclosure agreement and allow plaintiffs' counsel to object to questions counsel "felt were protected." Ikuta noticed Parker's deposition, and plaintiffs filed a motion to quash the deposition subpoena. The discovery referee recommended that the motion to quash Parker's deposition subpoena be granted, noting it was a "close call." Ikuta decided not to challenge the referee's report and decided to no longer pursue the testimony or deposition of Parker.
Ikuta reiterated "[t]o date, I have never spoken to Connie Parker about any privileged communications. I have not spoken to Connie Parker about any communications between Ms. Parker and the Hodes firm or any of Plaintiff's current or former counsel. I have never spoken to Connie Parker about Connie Parker's employment duties or responsibilities at The Skin Center. I have never spoken to Connie Parker about any conversations between Connie Parker and Plaintiff or her husband. I have never spoken to Connie Parker about any communications whatsoever involving Plaintiff. The only information that was ever disclosed was the unsanitary conditions of Plaintiff's medical office, which was stated by Ms. Parker to me on February 25, 2015. I have not obtained any documents from Connie Parker or her attorney regarding any subject matter. At no time did I ask for or did Connie Parker offer any information that could possibly be covered by the attorney-client privilege."
In plaintiffs' opening brief on appeal, plaintiffs do not identify any information Ikuta received from Parker that might be considered confidential. Instead, plaintiffs offer argument based on the presumption Ikuta must have received confidential information that he failed to handle properly: "In the present case, Mr. Ikuta affirmatively reached out to Connie Parker in an effort to obtain documents and information from her, but later did not fully answer Plaintiffs' counsel's demands relating to Mr. Ikuta's discussions with, and receipt of materials from, Ms. Parker. Since Plaintiffs reasonably believed that Ms. Parker was a Florida attorney, any and all confidential communications with her were protected by attorney-client privilege. [Citations.] Also, in her capacity as a paralegal, Ms. Parker's participation in communications between Plaintiffs and their counsel of record did not waive privilege. [Citations.] In addition, Ms. Parker's work product in this case constitutes the privileged work product of Plaintiffs and their counsel."
Given the substantial evidence offered in the form of Ikuta's declaration that he never received any confidential information from Parker (as well as the absence of any evidence to the contrary), the trial court did not abuse its discretion by denying the motion to disqualify on this ground.
B.
No Evidence Showed Ikuta Unduly Influenced a Percipient Witness from Testifying.
Plaintiffs argue Ikuta should have been disqualified because he unduly influenced Leggett, a percipient witness, not to testify in violation of rule 5-310(A) of the Rules of Professional Conduct which provides: "A member shall not: [¶] (A) Advise or directly or indirectly cause a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness therein." Leggett was one of Shang's patients.
In denying the motion to disqualify, the trial court stated in its minute order: "Leggett specifically testified that no one at any time tried to encourage her not to testify in this case." We have reviewed the relevant portion of Leggett's deposition testimony, contained in the confidential respondent's appendix that is under seal, and confirmed the accuracy of the trial court's statement.
In addition, Ikuta's declaration offered background on Leggett's reluctance to cooperate with plaintiffs' counsel: "In October 2014, Dr. Shang learned from Dr. Shang's patient Leggett that she was being harassed by one of Dr. Shang's former patients and an attorney. . . . At the deposition, Ms. Leggett said that she spoke on the phone with me on one occasion before signing the declaration and that I assisted in the preparation of the declaration. . . . In that conversation with me, Ms. Leggett provided some very brief history of her medical conditions. I do recall what Ms. Leggett had stated about her medical information in relation to her visits with Dr. Shang. Nevertheless, Ms. Leggett verified at her deposition that Plaintiff's former attorney, Dan Hodes, called her. She testified that when he called she was 'upset [because] [m]y sister had just died and he was pretty aggressive.' She again testified that she was upset in part because Mr. Hodes was calling her and reiterated that he was aggressive. . . . She testified how she felt in relation to the phone call from Plaintiff's former counsel: '[M]y personal life was being infringed upon. I was being violated and I did not appreciate it.'"
In the opening appellate brief, plaintiffs argue, "[i]t was an abuse of discretion for the trial court to conclude that nothing improper happened in that October 29, 2014 telephone conversation, especially since the two individuals in the conversation (Mr. Ikuta and Ms. Leggett) failed and refused to fully disclose what was said in that telephone call and in their subsequent discussions. Mr. Ikuta merely issued a blanket denial, and Ms. Leggett provided even less information than that. . . . For this independent reason, good cause existed to disqualify counsel due to Mr. Ikuta's violation of Rule 5-310(A) of the California Rules of Professional Conduct."
Plaintiffs' argument is based on speculation and not on any evidence that Ikuta advised or caused Leggett to be unavailable as a witness. On the other hand, the record contains evidence that Leggett was not discouraged by anyone from testifying. Furthermore, Ikuta had no obligation to disclose what was otherwise discussed during his conversation with Leggett. Substantial evidence supported the trial court's denial of the motion to disqualify on this ground.
Plaintiffs also argue Ikuta's conduct violated rule 3.4(f) of the American Bar Association Model Rules of Professional Conduct which describe an attorney's ethical duty not to request a person other than a client to refrain from voluntarily giving relevant information to another party. Plaintiffs' argument is without merit, not only because no evidence showed Ikuta asked Leggett to refrain from voluntarily giving relevant information to plaintiffs in this case, but also because the American Bar Association Model Rules of Professional Conduct do not establish ethical standards in California, as they have not been adopted in California and have no legal force of their own. (General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190, fn. 6; see Gregori v. Bank of America, supra, 207 Cal.App.3d at p. 303 ["disciplinary rules promulgated by bar associations are not intended to be used as procedural weapons in disqualification cases"] see also Rules Prof. Conduct, rule 1-100 ["Nothing in these rules shall be deemed to create [or] augment . . . any substantive legal duty of lawyers or the non-disciplinary consequences of violating such a duty"].)
C.
No Evidence Showed Ikuta Violated the Protective Order Issued in This Case.
In the opening appellate brief, plaintiffs argue: "This medical malpractice case is unique in that the defendant's patient is herself a licensed physician. Therefore, good cause existed for a protective order to be issued, since confidential information and evidence pertaining to the plaintiff's medical practice and the plaintiff's patients would become relevant to issues of loss of earnings, loss of future earning capacity and other important questions. . . . [¶] Consequently, any violation of the protective order had to be dealt with firmly. In the present case, there was ample evidence that Mr. Ikuta had shared confidential information from Dr. Cole's deposition with opposing counsel in the Santa Clara Action. However, the trial court did nothing about it, thereby abusing its discretion."
There is no evidence Ikuta shared confidential information from Cole's deposition with opposing counsel in the action in Santa Clara County. Second, even if there was, Ikuta denied doing so in his declaration, stating: "I have never sent any deposition transcript of a third party in this case or any records obtained by deposition subpoenas to anyone other than Dr. Shang's retained experts or the insurance carrier for this matter. Specifically, I have not disclosed Dr. Cole's deposition transcript, any of the Exhibits to that transcript, or any of the Orange County Diagnostic records to anyone other than Dr. Shang's experts. I have not disclosed any of Dr. Cole's deposition transcript, any of the Exhibits to that transcript, or any of the Orange County Diagnostic records to the defense counsel in the Santa Clara action. The above statements are also true for my office." He further stated, "I have never violated the stipulated protective order that was signed by the parties on October 14, 2014 and this Court on October 14, 2014." Therefore, substantial evidence supported the finding no confidential information was shared.
In addition, the trial court explained in its minute order how the defendant's counsel in the Santa Clara County action could have independently discovered the subject confidential information in the normal course of discovery, stating: "With respect to the accusation that defense counsel has disclosed confidential information in violation of the protective order issued in this case on October 20, 2014, both sets of defense counsel, i.e., defense counsel in this action and defense counsel in the Santa Clara Superior Court action, could easily have come to the same conclusion that Dr. Alai forged Gary Cole, M.D.'s signature on the subject MRI/imaging orders, given Dr. Cole's employment relationship with The Skin Center, and the fact that he is a dermatologist with no reason to be issuing the referenced MRIs or ultrasounds. . . . Both sets of defense counsel also likely subpoenaed the same medical records given that Dr. Alai has put her medical condition at issue in both cases. . . . Dr. Alai's declaration is vague as to whether defense counsel actually ever solicited and engaged in any communications about the subject of the representation directly with a party to this litigation."
The motion to disqualify was properly denied.
III.
SHANG'S REQUEST FOR JUDICIAL NOTICE IS DENIED.
Shang requested that this court take judicial notice of the trial court record in this case regarding matters that have transpired since the order denying the motion for disqualification, including the entry of judgment on a directed verdict in favor of Shang, and the filing of notices of appeal by plaintiffs from that judgment. Shang requests judicial notice of the identified trial court records to show that since judgment has been entered, this appeal is moot. This appeal is not rendered moot because judgment was later entered. Shang's request is denied.
DISPOSITION
The order is affirmed. Respondent shall recover costs on appeal.
FYBEL, J. WE CONCUR: O'LEARY, P. J. MOORE, J.