P. v. International Chemical Systems CA4/1 (2013) · DecisionDepot
P. v. International Chemical Systems CA4/1
California Court of Appeal Mar 19, 2013 No. D061075Unpublished
Filed 3/19/13 P. v. International Chemical Systems CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE OF THE STATE OF D061075 CALIFORNIA,
Plaintiff and Respondent, (Super. Ct. No. 37-2009-00103017- v. CU-TT-CTL)
INTERNATIONAL CHEMICAL SYSTEMS, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Timothy B.
Taylor, Judge. Affirmed.
In this law enforcement action brought by the People of the State of California
alleging violations of the Hazardous Waste Control Act, false advertising and unfair
competition, the court denied defendant International Chemical Systems, Inc.'s (ICS's)
motion to disqualify counsel for the People. The basis for ICS's motion to disqualify was
the People's retention of Sonja Beck as their expert on hazardous waste testing. ICS
alleged that it had worked closely with Beck and her company, MBC Applied
Environmental Sciences (MBC) for many years and that the testing work Beck performed
was the "centerpiece" of ICS's defense in this action.
On appeal, ICS asserts the court erred in denying its motion to disqualify counsel
motions implicate important interests of preservation of public trust in the administration
of justice, a client's right to counsel of choice, the attorney's interest in representing a
client, the financial burden of replacing a disqualified attorney, and any tactical abuse
that may underlie the motion. (Id. at pp. 218-219.) Disqualification is a drastic action
that should not be taken simply from hypersensitivity to ethical nuances or the
appearance of impropriety. (Id. at p. 219.)
In disqualification cases, the party seeking disqualification bears the burden of
establishing that the expert and/or attorney possesses confidential information materially
related to the proceedings. (Roush, supra, 150 Cal.App.4th at p. 220.) Although the
moving party is not required to disclose the actual information contended to be
confidential, he or she must set forth the nature of the information and its relevance to the
proceeding. (Ibid.) Once this showing is made, " ' "a rebuttable presumption arises that
the information has been used or disclosed in the current employment." ' " (Ibid.)
The trial court's decision denying a motion for disqualification is reviewed for an
abuse of discretion. (Roush, supra, 150 Cal.App.4th at p. 218.) However, " 'a
disqualification motion involves concerns that justify careful review of the trial court's
exercise of discretion.' " (Ibid.)
As required by the rule governing appellate review of orders based upon
declarations and affidavits, we view the evidence most favorably to the order denying
disqualification. (Brunzell Construction Co., Inc. v. Smith (1988) 200 Cal.App.3d 617,
620.) We also presume that the trial court found the facts that support the order to which
7
credibility relates. (Baugh v. Garl (2006) 137 Cal.App.4th 737, 744.) We do not
redetermine the credibility of declarants: "Credibility is an issue for the fact finder. . . .
[W]e do not reweigh evidence or reassess the credibility of witnesses." (Johnson v. Pratt
& Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.)
A. Analysis
As we have noted, ante, disqualification of an expert and the law firm retaining the
expert is warranted only when the moving party establishes that the expert and attorney
actually possess confidential attorney-client information or work product related to the
proceedings. (Western Digital Corp. v. Superior Court (1998) 60 Cal.App.4th 1471,
1487.) " 'The threat to confidentiality must be real, not hypothetical.' " (Ibid.)
Here, to the extent the declarations were conflicting regarding communication of
confidential information, the trial court exercised its discretion and resolved this factual
issue in favor of the People, and we may not reweigh that determination on appeal.
(Shadow Traffic, supra, 24 Cal.App.4th at p. 1083.) MBC's vice-president, Michael
Mancuso, declared that MBC was never retained or even requested to be an expert or
consultant to Figueira or ICS. Moreover, in his declaration, Figueira only states that he
"may" have shared some unspecified confidential information, that he does not recall the
nature of, or when it was disclosed. Figueira never informed MBC that any information
he shared was confidential, and did not seek a confidentiality agreement from MBC.
Despite Figueira's claim of a long-standing relationship with MBC which began in 1998,
Figueira admitted he had no contact with Beck or MBC in 2004, 2005, 2006, 2007, 2008,
2009 and 2011. Figueira's sole 2010 contact with MBC was limited to submission of a
8
single sample which was subcontracted to MBC and Beck through another laboratory,
called Associated Laboratories.
In her deposition, Beck testified that despite ICS's claim that Figueira was one of
Beck's "key client contacts," she did not recall ever meeting or speaking with Figueira.
Furthermore, she stated she was not aware of whether or not she possessed any
confidential information about ICS and was not aware of having communicated any
confidential information to Irey. She testified that Beck and Irey did not discuss theories
of the case, the evidence against ICS, or legal strategy. In his declaration, Irey also stated
that he was unaware of having ever received any personal, confidential, or proprietary
information related to ICS from Beck. From all this evidence, the court could
reasonably conclude that disqualification of counsel for the People was not necessary.
ICS relies upon the fact that in 2001 it retained its former counsel, Armao, to assist
in its compliance with California state and local regulations and policies applicable to the
sale and use of its FM-186 spill cleaning products. To support this argument, ICS
submitted a 2002 letter from Armao to ICS's president, Ed Grubbs, which references a
January 2002 "special test we conducted under the attorney-client and attorney work-
product privileges" that was done by MBC. Attached to that letter is a cover page for the
referenced test and a letter from Figueira to Armao with the invoice from MBC for the
test.
However, that "special test" cannot be considered to be privileged. There is no
evidence that Armao or any other attorney for ICS communicated directly with MBC.
Furthermore, that letter states the test was done to "address some of [Irey's] concerns,"
9
indicating that it would be produced to him if necessary. ICS did in fact share the results
of that test with Irey, thereby waiving any privilege ICS can claim applied. (BP Alaska
Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1261.)
Shadow Traffic, supra, 24 Cal.App.4th 1067, upon which ICS relies heavily in its
appellate briefs, does not assist them in this case. There, Metro Traffic Control, Inc.
(Metro) sued the defendant Shadow Traffic. (Id. at p. 1071.) During the litigation Metro
held a one-hour meeting with four members of an accounting firm to discuss having
accountants from the firm testify as expert witnesses at trial. Aspects of Metro's action
were discussed with the accountants during the meeting. (Ibid.) Metro ultimately
decided not to retain the accounting firm. Several weeks later Shadow Traffic engaged
one of the four accountants as a trial expert. (Id. at p. 1072.)
The trial court granted Metro's motion to disqualify Shadow Traffic's attorneys,
and the Court of Appeal affirmed. The Court of Appeal concluded there was sufficient
evidence for the trial court to find (a) the accountant retained by Shadow Traffic had
obtained confidential information during his one-hour meeting with Metro; (b) this
created a "rebuttable presumption" that the accountant's information about Metro had
been disclosed to them; and (c) Shadow Traffic had not rebutted that presumption.
(Shadow Traffic, supra, 24 Cal.App.4th at pp. 1085-1087.)
Shadow Traffic, supra, 24 Cal.App.4th 1067 is distinguishable because that case
involved experts who obtained confidential information about pending litigation while
working for or consulting with the attorneys representing one party to the lawsuit and
who then went to work for or became consultants for the attorneys representing the
10
opposing party to the same lawsuit. Here, however, the evidence showed that neither
MBC nor Beck ever met with, corresponded with, spoke with or were otherwise
contacted by any attorney representing ICS. Figueira is not an attorney. There is no
evidence of an attorney-client relationship between ICS and MBC. Further, there is no
evidence Figueira communicated any attorney-client information to MBC or Beck.
Most important for this appeal, which involves an attempt to disqualify not only an
expert, but also counsel for the People, there is no evidence confidential information was
transmitted to the People's attorneys. Indeed, each of the deputy district attorneys
involved in this case submitted declarations under penalty of perjury that they did not
receive any privileged or confidential information from Beck or MBC, nor from any
other deputy district attorney associated with this case. The burden of proof is on the
moving party to show that any confidential information possessed by an expert witness
was transmitted to opposing counsel. (Shandralina G., supra, 147 Cal.App.4th at pp.
411-412.) ICS has not submitted any evidence to show any confidential information was
actually transmitted to counsel for the People.
It is of some concern that in her deposition Beck only testified that she was not
"aware" of possessing any confidential information about ICS, instead of affirmatively
denying that she possessed it. Testimony that one does not recall an event is not
testimony that the event did not happen. "[T]he failure to recollect is pregnant with the
concession that the event in question may, in fact, have occurred but the declarant has no
immediate memory of it." (Shadow Traffic, supra, 24 Cal.App.4th at p. 1083.)
11
However, the court recognized that Beck's lack of memory concerning her work
lacked credibility and on that basis barred her acting as an expert in the litigation.
Nevertheless, the court, exercising its considerable discretion, found the weight of the
evidence did not justify also disqualifying counsel for the People.
Moreover, contrary to ICS's contention, its due process right to a fair trial has not
been violated. The court disqualified Beck from serving in any expert capacity in
connection with this case and from communicating with the People concerning any of her
work on this matter. Additionally, ICS did not designate Beck as an expert in this case.
Beck was not asked to serve as a consultant to ICS, and she did not communicate with
any attorney for ICS. Thus, ICS's right to a fair trial was adequately protected by the
court's ruling.
In sum, we conclude that the trial court's decision was not erroneous because it is
supported by sufficient evidence and is not unreasonable. (Shadow Traffic, supra, 24
Cal.App.4th at p. 1083; Mills Land & Water Co. v. Golden West Refining Co. (1986) 186
Cal.App.3d 116, 126 [denial of disqualification motion may be reversed only if trial
court's decision is unreasonable].)
12
DISPOSITION
The order denying ICS's motion to disqualify counsel for the People is affirmed.
The People shall recover their costs on appeal.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
13
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of a motion to disqualify counsel for the People, finding that the moving party failed to establish that confidential information was transmitted to opposing counsel and that the trial court acted within its discretion in fashioning a remedy that excluded the expert while allowing counsel to remain.
Issues
Whether the trial court abused its discretion in denying a motion to disqualify counsel for the People based on the retention of an expert witness who allegedly possessed confidential information.
Whether the moving party met its burden of establishing that confidential information was actually transmitted to opposing counsel.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court's decision denying a motion for disqualification is reviewed for an abuse of discretion.”
“The burden of proof is on the moving party to show that any confidential information possessed by an expert witness was transmitted to opposing counsel.”
“ICS has not submitted any evidence to show any confidential information was actually transmitted to counsel for the People.”