Knox v. Dynamic Nuirsing Home
Filed 2/6/09 Knox v. Dynamic Nuirsing Home CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ALLISON KNOX, Plaintiff and Respondent, v. DYNAMIC NURSING SERVICES, INC., Defendant and Appellant. | B205029 (Los Angeles County Super. Ct. No. BC360621) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael L. Stern, Judge. Affirmed.
Cohon & Pollak, Jeffrey M. Cohon, Kristina S. Keller for Defendant and Appellant.
Kenneth H. Yoon for Plaintiff and Respondent.
___________________________________________________
Shortly before trial, defendant asked the trial court to disqualify plaintiffs counsel from further participation in this case. The grounds for the motion were that plaintiffs counsel had a secret, unauthorized 27 minute telephone conversation with defense counsels client and key trial witness, Jane Cleghorn, in violation of the California Rules of Professional Conduct. The trial court denied the motion to disqualify counsel. We affirm.
FACTS
Respondent Allison Knox worked for appellant Dynamic Nursing Services (Dynamic). Knox provided in-home care for one of Dynamics elderly clients. Another Dynamic employee, Jane Cleghorn, worked a different shift caring for the same client. Knox sued Dynamic to recover allegedly unpaid overtime wages. Cleghorn remains employed by Dynamic, and she is neither a plaintiff nor a defendant in this lawsuit. Dynamic is represented in this lawsuit by the law firm of Cohon & Pollak (C&P).
On December 20, 2007, Cleghorn received a telephone call from plaintiffs counsel, Kenneth Yoon. That telephone call led to a defense motion to disqualify attorney Yoon, which is the subject of this appeal. Yoon does not deny that he telephoned Cleghorn. The issue is whether the communication was improper.
During the December 20 telephone conversation, Cleghorn expressed concerns to Yoon about speaking to him because she is employed by Dynamic. To allay Cleghorns concerns, Yoon stated that he was allowed to talk to her and that she could not be fired by Dynamic for doing so. Further, Cleghorn declared, Mr. Yoon specifically led me to believe that he had my attorneys permission to talk to him.
Once Cleghorns concerns were allayed by Yoons assurances, she spoke to Yoon for nearly half an hour. She answered Yoons questions concerning a number of topics. Specifically, she discussed the work that she and Knox performed; the work that they were supposed to perform; the hours they worked; Dynamics procedures and policies; Cleghorns conversations with Knox; and Cleghorns conversations with my attorneys at C&P.
For his part, Yoon claims he had no idea that C&P could have represented Cleghorn at the time that he telephoned her. Yoon knew that Cleghorn was not an officer, director or manager at Dynamic: Cleghorn was simply a caregiver who worked a different shift from Knox. According to Yoon, Cleghorn denied knowing the names Kristina Keller or Jeffrey Cohon, two attorneys from C&P. This led Yoon to believe that Cleghorn was not represented by Keller or Cohon. Yoon assumed that Cleghorn would know the names of her attorneys and that someone would warn Cleghorn that plaintiffs counsel might try to talk to her.
After speaking to Yoon, Cleghorn called Knox. Cleghorn asked Knox who Kristina Keller is, as Kellers name was raised by Yoon. Knox told Cleghorn that Keller is Dynamics attorney. Sometime later, Cleghorn called Knox to say that she had spoken with Keller regarding the same topics that she discussed with Yoon, that Dynamic was pressuring her about the case, and that she was afraid of losing her job.
In a declaration, Cleghorn states that she has been continuously represented by Cohon & Pollak since the inception of this lawsuit. Moreover, she told Yoon during their conversation that she knew and spoke to Kristina Keller, so Yoons declaration to the contrary is false. Yoon also falsely stated in his declaration that he told Cleghorn that she did not have to speak to him. Cleghorn denied telling Knox anything about Keller.
Attorney Keller declared that Cleghorns identity was disclosed to Yoon during discovery, but Yoon never deposed Cleghorn. Dynamic agreed to produce Cleghorn as a witness at trial, without a subpoena. Keller spoke to Cleghorn on three occasions. They discussed the work Cleghorn and Knox performed; the work they were supposed to perform; Dynamics procedures and policies; and Cleghorns conversations with Knox. Keller also discussed with Cleghorn the nature of Knoxs claims, the law governing those claims, and the content of certain documents and how they impact Knoxs lawsuit. According to Keller, Cleghorn formed an attorney-client relationship with Keller and agreed to be represented by C&P.
Attorney Cohon declared that he first learned of Yoons communications with Cleghorn in January 2008, while meeting with Cleghorn to prepare for the upcoming trial in Knoxs case, which was scheduled for January 14, 2008. Cohon immediately demanded that Yoon withdraw from the case. When his demand was ignored, Cohon filed an ex parte motion to disqualify Yoon, claiming that Yoon improperly received privileged attorney-client communications from Cleghorn.
The trial court resolved Dynamics motion to disqualify on January 11, 2008. It overruled Dynamics evidentiary objections to declarations submitted by Yoon and Knox, and denied Dynamics motion to disqualify counsel. This appeal was filed within hours after the courts ruling.
DISCUSSION
1. Appeal And Review
Appeal lies from an order denying a motion to disqualify opposing counsel. (Meehan v. Hopps (1955) 45 Cal.2d 213, 215; Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882; Derivi Construction & Architecture, Inc. v. Wong (2004) 118 Cal.App.4th 1268, 1272.) Generally, a trial courts decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial courts express or implied findings supported by substantial evidence. . . . [W]here there are no material disputed factual issues, the appellate court reviews the trial courts determination as a question of law. [Citation.] In any event, a disqualification motion involves concerns that justify careful review of the trial courts exercise of discretion. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143-1144.)
2. The Provisions Of Rule 2-100
Rule 2-100 of the Rules of Professional Conduct (Rule 2-100) prohibits an attorney involved in litigation from communicating directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer. Rule 2-100 defines a party as including (1) an officer, director, or managing agent of a corporation, or (2) an employee of a corporation if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
3. Existence Of An Attorney-Client Relationship Between Cleghorn And C&P
Dynamic submitted declarations averring that C&P has an attorney-client relationship with Cleghorn. Those seeking disqualification of an attorney must establish representation in a manner giving rise to an attorney-client relationship. (Med-Trans Corp., Inc. v. City of California City (2007) 156 Cal.App.4th 655, 668, fn. 8.) A subjective belief that an attorney-client relationship exists, standing alone, cannot create such a relationship. (Zenith Ins. Co. v. OConnor (2007) 148 Cal.App.4th 998, 1010.) Moreover, an attorneys declaration that an attorney-client relationship exists does not suffice to create such a relationship. (Koo v. Rubios Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729.) Rather, the relationship can only be created by contract, express or implied. (Ibid.)
An attorney-client relationship conclusively exists if the attorney says that he will handle a persons case and has the person sign a retainer agreement. (Farnham v. State Bar (1976) 17 Cal.3d 605, 612.) There is no evidence in the case at bench of an express written agreement to represent Cleghorn. If possible, the existence of an attorney-client relationship must be implied from surrounding circumstances. The relationship may be implied if the attorney gives a person legal advice. (Beery v. State Bar (1987) 43 Cal.3d 802, 811-812.) Payment of attorney fees is an indicium of an attorney-client relationship. (Hecht v. Superior Court (1987) 192 Cal.App.3d 560, 565.) A longstanding relationship between an attorney and a client may show that a course of dealing has developed. (Kane, Kane & Kritzer, Inc. v. Altagen (1980) 107 Cal.App.3d 36, 40-42.) Appearing in court with counsel is presumptive evidence of the existence of an attorney-client relationship. (In re Brindle (1979) 91 Cal.App.3d 660, 671.)
Cleghorn is neither a plaintiff nor a defendant: she has nothing to gain or lose from this litigation. No contention is made that C&P represents Cleghorn as an individual in any matter apart from this litigation. There is no evidence that Cleghorn has paid any attorney fees to C&P, or that the firm has appeared in court on Cleghorns behalf, or that Cleghorn has any right to direct the law firm to settle with Knox or to select trial tactics. Nor is there evidence of a longstanding relationship between Cleghorn and C&P. Although Kristina Keller of C&P had direct contact with Cleghorn, Kellers declaration sheds no light on how her contacts protected or furthered Cleghorns individual interests, or provided Cleghorn with any legal advice as to her rights. Nothing indicates that Cleghorn revealed anything of a personal and confidential nature.
In short, despite the statements made in the declarations, there is no express contract between Cleghorn and C&P. Further, there are no indicia from which an attorney-client relationship could be implied. Instead, the claim of personal representation appears to be opportunistic, to gain an advantage in the litigation by disqualifying plaintiffs counsel at the eleventh hour. The trial court did not abuse its discretion when it rejected Dynamics claim that Cleghorn is a client of C&P.
4. Cleghorns Party Status Arising From Her Employment At Dynamic
Under Rule 2-100, a party to litigation may include an officer, director or managing agent of a corporation. No claim is made that Cleghorn falls into any of these three categories. The evidence shows only that Cleghorn is a caregiver employed by Dynamic. Rule 2-100 permits ex parte contacts between nonmanagement employees like Cleghorn and opposing counsel unless (a) the subject of the communication is any act or omission of [Cleghorn] in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or (b) Cleghorns statements may constitute an admission on the part of the organization. (Rule 2-100; Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 140.)
Yoon communicated with Cleghorn to discuss the work Cleghorn and Knox performed, the hours Cleghorn and Knox worked, the kind of work that they were supposed to perform for Dynamic, the procedures and policies followed at Dynamic, and Cleghorns conversations with Knox. None of these subjects relate to an act or omission by Cleghorn that could lead to liability on the part of Dynamic. (Rule 2-100(B).) The interview with Cleghorn did not concern her own actions or omissions concerning the dispute, but her percipient knowledge and understanding of events surrounding the dispute. (Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1210.) As an independent witness who happens to be an employee of the corporate defendant, Cleghorns observations are not subject to the attorney-client privilege. (Triple A Machine Shop, Inc. v. State of California, supra, 213 Cal.App.3d at p. 142.)
With regard to statements that could constitute corporate admissions, the statements must come from high-ranking organizational agents who have actual authority to speak on behalf of the organization. (Snider v. Superior Court, supra, 113 Cal.App.4th at p. 1203; Evid. Code, 1222.) There is no evidence that Cleghorn is a high-ranking corporate agent with actual authority to speak on behalf of Dynamic.
Finally, Dynamic argues that Yoon should be disqualified for his invasion of the work product doctrine. Dynamic relies on a statute providing that work product is [a] writing that reflects an attorneys impressions, conclusions, opinions, or legal research or theories . . . . (Code Civ. Proc., 2018.030, subd. (a).) No evidence supports a conclusion that Yoon obtained a writing from Cleghorn; rather, there is only evidence of a half-hour telephone conversation.
DISPOSITION
The judgment (order denying the motion to disqualify counsel) is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
DOI TODD, J.
CHAVEZ, J.
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