Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Super. Ct. No. SC046757, William Q. Liebmann, Judge.
O'Melveny & Myers, Scott H. Dunham, Dawn Sestitto, Brooke D. Nelson; Nordman, Cormany, Hair & Compton, Jonathan F. Light and Susan M. Seemiller for Defendant and Appellant.
Graves and Associates for Plaintiff and Respondent.
GILBERT, P.J.
Defendant Amgen, Inc., (Amgen) appeals an order denying its motion to disqualify Allen Graves, the attorney for plaintiff, Edmund Umbrasas. Graves previously worked for a large law firm that represented Amgen. But he proved he was not placed "in a position where he was reasonably likely to have obtained confidential information" relating to the current action, while a member of that firm. (Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1341.) The court did not err in denying defendant's motion. We affirm.
FACTS
Umbrasas had worked for Amgen since 1996. Amgen fired him in September of 2004. Umbrasas claimed he was replaced by a younger worker. He sued Amgen in June of 2006, alleging causes of action for age discrimination, wrongful discharge and retaliation for "whistle blowing." He claimed Amgen retaliated because he exposed false claims Amgen allegedly made to the Food and Drug Administration (FDA) about drug clinical trials.
Graves is Umbrasas's attorney. Graves was an attorney with the law firm of Paul, Hastings, Janofsky and Walker (Paul Hastings) from 1999 to January of 2004. During that period, Amgen was a client of that firm.
Amgen moved to disqualify Graves from representing Umbrasas. It attached several declarations to its motion: The declaration of Nancy Abell, an attorney in the Paul Hastings's firm, states she worked on employment matters for Amgen and Graves worked on the same floor. She often stacked Amgen documents at her secretary's work station, which was "visible to anyone who looked on the ledge" of that area. On several occasions, Graves stood near that work station. She met with Amgen staff in her office. She did not know what Graves heard, but with his door open he "was in a position to hear some of what" she said. She had a meeting with attorneys from the firm where she discussed Amgen matters. She said "associates like Graves were expected to attend these meetings."
George Abele, an attorney with Paul Hastings, said that in 2003 he sent an email to Graves, asking if he would take an Amgen "wage and hour matter." Abele outlined Amgen's "potential vulnerabilities" and "settlement strategy." He said, "[a]lthough Graves did not ultimately accept the assignment, he was privy to Amgen's confidential information."
Chiu Yin Wong, Paul Hastings's chief information officer, said Graves had a "log-in identity" code for the firm's computer system. A "person using" that code "accessed at least 5 documents created for Amgen" between 2000 and 2002. Wong said the records he "reviewed do not indicate the amount of time each document was open."
Leslie Abbott, a Paul Hastings attorney, said she saved Amgen employment documents on the firm's computer system. "Any person with access to the . . . system, including . . . Graves, could view these documents."
In his declaration, Graves said that at Paul Hastings he "never did any work for Amgen," and had no contact with any Amgen representatives. He did not see any Amgen documents, hear any conversations about that company or obtain any confidential information about it. He did not know any Amgen employees, had "no idea who made decisions at Amgen," and knew nothing about Amgen's employment policies or its litigation. He said Paul Hastings is "one of the largest law firms in the United States," employing "189 lawyers in Los Angeles and more than a thousand across the country." He worked at the Los Angeles office which "serviced literally thousands of clients," and "Amgen was one of the many clients to whom [he] had no exposure." Graves shared his computer and his access code with other attorneys in the firm who used his computer when he was away.
Relying on Adams, the trial court denied the motion. It found (1) Amgen demonstrated a substantial relationship between Paul Hastings's prior representation of Amgen and Umbrasas's claims against it; (2) but that Graves proved "there is no reasonable probability that he was 'in a position where he was reasonably likely to have obtained confidential information' material to the present action."
DISCUSSION
I. The Denial of the Disqualification Motion
Amgen contends the trial court erred by denying its motion to disqualify Graves. We disagree. "The trial court's decision on disqualification will not be disturbed on appeal absent an abuse of discretion. [Citation.]" (Elliott v. McFarland Unified School Dist. (1985) 165 Cal.App.3d 562, 567.) Disqualification is not automatically required, where an attorney representing the adverse party had previously represented the former client. (H. F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1455.)
"Where an attorney successively represents clients with adverse interests, and where the subjects of the two representations are substantially related, . . . the attorney [must] be disqualified from the second representation. [Citation.]" (People ex. rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146.) The moving party must show a substantial relationship between the prior representation and the current case. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283.)
"[T]he substantial relationship test is 'intended to protect the confidences of former clients when an attorney has been in a position to learn them.' Therefore, to apply the remedy of disqualification 'when there is no realistic chance that confidences were disclosed [is not appropriate.]' [¶] [T]he 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. . . . [It] should [consider] the attorney's possible exposure to formulation of policy or strategy.' [Citation.]" (H. F. Ahmanson & Co . v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at p. 1455.) It is widely recognized by courts that disqualification motions are commonly used by attorneys for purely strategic purposes. (Id. at p. 1454; Adams, supra, 86 Cal.App.4th at p. 1340.)
Amgen notes that the trial court found a substantial relationship between the work Paul Hastings did for Amgen and the current case. But that does not mean that all lawyers who previously worked for that firm are automatically disqualified.
"[W]here there is a substantial relationship between the current case and the matters handled by the firm-switching attorney's former firm, but the attorney did not personally represent the former client who now seeks to remove him from the case, the trial court should apply a modified version of the 'substantial relationship' test . . . . 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. In answering this question, the court should focus on the relationship, if any, between the attorney and the former client's representation. It should consider any time spent by the attorney working on behalf of the former client and 'the attorney's possible exposure to formulation of policy or strategy' in matters relating to the current dispute. [Citation.]" (Adams v. Aerojet-General Corp., supra, 86 Cal.App.4th at p. 1340.) "[T]he attorney whose disqualification is sought should carry the burden of proving that he had no exposure to confidential information relevant to the current action while he was a member of the former firm. [Citation.]" (Id. at pp. 1340-1341.)
Here the court properly found that Graves met his burden of proof. At Paul Hastings, he did not represent Amgen. He did not work on Amgen cases, provide advice or do research involving that company. He did not meet Amgen management, did not know the Amgen decision makers or meet any Amgen employees. He did not know about Amgen's employment policies, its litigation strategy, did not see Amgen documents or hear discussions about Amgen.
Paul Hastings's billing records track the time of its lawyers on Amgen cases. The trial court could reasonably infer Amgen's failure to produce time records showing that Graves spent any time on Amgen cases bolstered Graves's position. (Faughn v. Perez (2006) 145 Cal.App.4th 592, 601.)
Moreover, considering Paul Hastings's size, Amgen work would not necessarily expose all the firm's lawyers to that client's issues. Paul Hastings is one of the nation's largest firms. Graves worked at its Los Angeles office, which had 189 lawyers and "thousands" of clients. Graves said Amgen was one of the many clients to whom he had "no exposure at all." At Paul Hastings, Graves specialized in class actions. Amgen did not show that his work there would require him to become familiar with Amgen's personnel policies.
Amgen claims that the court improperly rejected its declarations and accepted Graves's. We disagree. Nancy Abell said she had a meeting about Amgen and believed Graves was present. But Graves said he was not there and knew "for certain" that he "never heard Abell or anyone else give a presentation about Amgen." Abell suggested Graves could hear her telephone conversations from his open door. But Graves said he never overheard these conversations and he "generally worked with [his] door closed." George Abele said he sent Graves an email about an Amgen "wage and hour" case. Graves disputed that he saw that email or any other memo about Amgen.
These differences are substantial. But the trial court resolved these conflicts in Graves's favor and found that he was credible. We do not resolve evidentiary conflicts or decide credibility. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; Akopiantz v. Bd. of Medical Examiners (1961) 190 Cal.App.2d 81, 90.)
Amgen's argument relied on speculation. Abell mentioned Graves's potential access to Amgen information, but "'. . . showing merely potential access . . . is insufficient.' [Citations.]" (Western Digital Corp. v. Superior Court (1998) 60 Cal.App.4th 1471, 1487; In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 596, fn. 13 [the "threat to confidentiality must be real, not hypothetical"].) Abell conceded that she did not know for certain if and what Graves allegedly heard or which, if any, documents he allegedly saw. Wong and Abbott said a person using Graves's log-in code entered the firm's database and had access to Amgen documents. But they did not know whether Graves made those entries. (Ochoa v. Fordel, Inc. (2007) 146 Cal.App.4th 898, 911-912 [showing only the "opportunity to acquire confidential information" is insufficient to disqualify a lawyer who never represented the moving party]; Faughn v. Perez, supra, 145 Cal.App.4th at p. 604 [motion denied where moving party did not show that attorney "actually possessed confidential information adverse to it"].)
Moreover, Graves said he was often away from his office and shared his computer with other attorneys at the firm, who had his code and used it. He said "it is likely that any Amgen document opened under [his] name was retrieved as part of a search, but never read." He noted that the firm's computer system tracks how long "a document is open," and Amgen did not show that any of the documents were opened long enough for anyone to read them. He said, "if an attorney pages through a list of documents" in the system, "each one may be open for less than a second."
Graves correctly notes that there must also be a showing that the confidential information is "material to the present representation . . . ." (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847.) "Material" means "that which is 'directly at issue in' or has 'some critical importance to, the second representation.'" (Ibid.)
Here there was no showing that Graves received information about Amgen's personnel records on Umbrasas, the employee who replaced him, the FDA reports, the clinical trials or Amgen's decision to fire Umbrasas. (Faughn v. Perez, supra, 145 Cal.App.4th at p. 604.) Umbrasas was fired months after Graves left Paul Hastings. Graves did not meet Umbrasas until after he left the firm. There was no evidence that records about Umbrasas's termination or his "whistle blowing" were at Paul Hastings or in its computer database. Amgen speculates that if Graves had eavesdropped or opened other lawyer's files he might have seen Amgen information. But it does not show how the information relates to Umbrasas or that Graves actually possessed confidential information adverse to it. (Ibid.) By contrast, Graves's declaration was responsive, unambiguous and sufficiently detailed so as to constitute an affirmative showing that he was not exposed to information relevant to Umbrasas's case. (Ochoa v. Fordel, Inc., supra, 146 Cal.App.4th at p. 911.)
Amgen contends that because Graves did not respond to all the facts in its declarations, the court had to accept the uncontroverted portions. We disagree. "The trier of fact is the exclusive judge of the credibility of witnesses and may reject in toto even uncontradicted evidence . . . . [Citations.]" (Akopiantz v. Bd. of Medical Examiners, supra, 190 Cal.App.2d at p. 90.) Amgen has not shown an abuse of discretion and the trial court could reasonably find that there was no realistic chance that Amgen's confidences, if any, would be disclosed. (H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at p. 1455.)
II. Trial Court's Use of an Incorrect Standard
Amgen contends the trial court used an incorrect standard because it found, "it is not reasonably probable that confidential information material to the present representation of [Umbrasas] was 'imparted to' Graves.' It claims this finding is inconsistent with Adams because the court should have found Graves "had no exposure to confidential information." (Adams v. Aerojet-General Corp., supra, 86 Cal.App.4th at p. 1341, italics added.) But the order is consistent with Adams. There the court said the "court's task . . . is to determine whether confidential information material to the current representation would normally have been imparted to the attorney . . . ." (Ibid., italics added.) The trial court's initial finding is: "there is no reasonable probability that [Graves] was 'in a position where he was reasonably likely to have obtained confidential information' material to the present action . . . ." (Italics added.) The Adams court said that is the finding trial courts must make. (Id. at p. 1341.) The trial court made the required finding.
But the result does not change, even if the trial court used an incorrect phrase. "[A]n appellate court reviews the action of the lower court and not the reasons given for its action; and . . . there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct. 'The fact that the action of the court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety . . . .' [Citations.]" (Mike Davididov Co. v. Issod (2000) 78 Cal.App.4th 597, 610.) From Graves's declaration, the trial court could reasonably infer he had no exposure to confidential information relevant to this case. The court's express and implied findings are supported by the record.
We have reviewed Amgen's remaining contentions and conclude it has not shown reversible error.
The order is affirmed. Costs are awarded to respondent.
We concur: COFFEE, J., PERREN, J.