Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LC086908 James Kaddo, Judge.
Law Offices of Ron Nelson and Ron Nelson for Plaintiff and Appellant.
LaFollette, Johnson, DeHaas, Fesler & Ames, Don Fesler, David J. Ozeran for Defendant and Respondent.
ARMSTRONG, Acting P. J.
Mary Maron appeals from the denial of her motion to disqualify the firm of LaFollette, Johnson, DeHaas, Fesler & Ames from representing respondent Alan Klass, in her suit against him. We affirm, as we explain:
On September 17, 2009, Maron sued a number of doctors and other medical providers for negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and loss of consortium. The factual allegations concerned her husband Marvin Maron's medical treatment in October of 2008.
One of the defendants was Alan Klass, a medical doctor. He was and is represented by the firm of LaFollette, Johnson, DeHaas, Fesler & Ames.
In November 2009, Maron moved for an order compelling LaFollette, Johnson to surrender a document and to disqualify that firm. The motion was made on the ground that the document, a copy of an email, was subject to the attorney-client privilege. The email is apparently one sent by Maron to Dr. Klass's wife, Barbara Klass, on December 15, 2008. From various references in the record, we gather that Barbara Klass was a lawyer and a friend of Maron's.
In legal support, Maron cited State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 and Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807.
State Fund, supra, 70 Cal.App.4th 644, involved the inadvertent disclosure of privileged information. The question presented by the appeal was "what is a lawyer to do when he or she receives through the inadvertence of opposing counsel documents plainly subject to the attorney-client privilege?" (Id. at p. 651.) The answer was that "the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified." (Id. at pp. 656-657.)
Rico, supra, 42 Cal.4th 807, was a disqualification case. Through inadvertence, plaintiffs' counsel in a products suit obtained defendant's counsel's notes on a strategy session with experts. Plaintiffs' counsel did not disclose that he had the notes, but instead studied them, made copies which he distributed it to cocounsel and experts, and used the notes while taking depositions. A motion to disqualify followed, and was granted. The Supreme Court found that the rule announced in State Fund, supra, concerning a lawyer's duties was fair and reasonable, and that, as the trial court had found, those duties had been violated. The court also affirmed the order disqualifying counsel, noting that plaintiffs' counsel had acted unethically in making use of the notes and that the damage thus caused was irreversible unless counsel was disqualified. (Rico, supra, 42 Cal.4th at p. 819.)
Factually, the motion argued that LaFollette, Johnson had failed to return the document and refused to tell Maron how they came to have it; that in an October 29 letter, Don Fesler of that firm had threatened a malicious prosecution suit based on information in the document and had attempted to coerce Maron into disclosing privileged information; and that LaFollette, Johnson had attempted to prejudice Maron's prosecution of the case by including descriptions of the document in discovery served on all codefendants and by conducting an investigation to confirm the content of the document.
The motion purported to quote portions of the October 29 letter from Fesler, but the quotations omit portions of the letter. That is, the motion states that Fesler wrote, "As you will note from the requests for admissions being forwarded to your office, following Dr. Oblath's surgery, Mrs. Maron discovered [omitted confidential information] and, in fact, discussed [omitted confidential information] as evidenced by her email correspondence to and from Barbara Klass. [¶]... [¶] So there is no question that your clients received notice of this correspondence, I am also requesting that your clients date and sign the enclosed copies of this correspondence and return it to our office by return mail. Here, I simply do not want there ever to be a question about whether your clients knew the consequences of proceeding with this case and being so informed, nonetheless elected to proceed with a non-meritorious case against Dr. Klass."
Similarly, the motion purported to quote the objectionable discovery request, stating that the request was "Admit that following Ms. Maron's discovery of [omitted confidential information] on or about December 15th, 2008, Ms. Maron forwarded an email to Barbara Klass asking Mrs. Klass [about confidential omitted matters]."
Neither the October 29 letter or the discovery request was attached to the motion.
Maron did submit the declaration of her counsel, who declared that he had received correspondence from Don Fesler of LaFollette, Johnson which wrongfully relied on privileged information, that he had demanded return of the documents and information on how Fesler had obtained the documents, and that Fesler neither explained or returned the documents. Further, counsel declared that he had had a phone call from an associate at Lafollette, Johnson advising him that she had been assigned to investigate to confirm the confidential information.
Maron also submitted her own declaration, to the effect that she had reviewed the correspondence discussed in the motion, and that while she could not precisely recall the content of the email in question, she recalled sending Barbara Klass an email around that date. Barbara Klass had previously represented her on one or two unrelated matters. She had sent the email to inquire about retaining Barbara Klass's services or seeking her advice on legal matters. It was Maron's intent that this communication would be confidential.
At the hearing on the motion, counsel for Maron represented that Maron had been unable to retrieve the email from her own files.
With the opposition to the motion to disqualify, Fesler declared that he had not considered the email privileged because it did not disclose information that was the subject of an attorney-client relationship. He had offered to provide Maron's counsel with the document, but, given that Maron had contended that the email was privileged, he wanted Maron's consent in writing to its disclosure to her counsel. After he learned that Maron was contending that the email was privileged, he withdrew discovery pertaining to the document. He had conducted no investigation based on the email, and had not caused any investigation to take place.
At the hearing, the court indicated that it would deny the motion, but agreed to review correspondence which Maron asked to submit and to keep the correspondence confidential. No correspondence was submitted to the court. The court found Maron's authorities inapplicable, and denied the motion.
Our review of an order on a motion for disqualification is for abuse of discretion. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143.) We agree with respondent that, even if the email in question here was privileged, Maron has not established that the court abused its discretion.
Maron's arguments on appeal are, again, based on Rico, supra, 42 Cal.4th 807, and State Fund, supra, 70 Cal.App.4th 644, but this case is unlike those cases, because we have no evidence that the email was misused in any way, let alone in a way which prejudiced Maron's case. The purported quotations in Maron's motion are not evidence, and even if they were, they are inadequate to show misuse of the information. "'Mere exposure to the confidences of an adversary does not, standing alone, warrant disqualification.'" (State Fund, supra, 70 Cal.App.4th at p. 657, quoting In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 589.) At most, that is all that happened here.
Respondent also argues that the appeal should be dismissed as moot, submitting with the motion to dismiss excerpts from Maron's deposition, contending that in the excerpts, Maron testified concerning the email at issue and thus waived the privilege and demonstrated that the email was not privileged to begin with. It is not clear that the matter is moot, given that Maron's deposition answer was provided "without waiving any privilege, " and given that the deposition was taken after the trial court ruling in this matter. The motion to dismiss is denied, but that is of little moment, given that respondent has prevailed on appeal.
That testimony was that the reason she contacted Klass (in the deposition, she refers to a call, not an email) was because she believed that her husband was going to have to be put into a long-term care facility and "I had no idea what a person in that situation does about their life and their marriage."
Disposition
The judgment is affirmed. Respondent to recover costs on appeal.
We concur: KRIEGLER, J., KUMAR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.