Patron
Spirits Internat. v. Singh



















Filed 2/21/13
Patron Spirits Internat. v. Singh CA2/3













NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THREE




>

PATRÓN SPIRITS INTERNATIONAL AG, et al., Plaintiffs, Cross-Defendants and Respondents, v. AJENDRA SINGH, Defendant, Cross-Complainant and Appellant.

B234187 c/w B235464 (Los Angeles County Super. Ct. No. SC104853)

APPEALS from a judgment and order of
the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County,
Jacqueline A. Connor, Judge. Summary
judgment in favor of Patron and DeJoria is reversed. Order disqualifying Attorney Miller from
representing Singh is reversed.

Miller Barondess, Alexander Sasha
Frid and Jennifer Mira Hashmall for Defendant, Cross-Complainant and Appellant.

Jones Day, Brian O’Neill, Brian D.
Hershman, Cary D. Sullivan and Peter E. Davids for Plaintiffs,
Cross-Defendants and Respondents.



_______________________________________

Ajendra
Singh was employed by Patrón Spirits International, A.G. (Patron),
a producer and distributor of premium tequila. In 2003, Singh was allegedly promised an
extraordinary bonus, based on the value of the company, if he remained with the
company for an additional five years. In
2008, shortly after the five year period was completed, Singh’s employment was
terminated, purportedly for sexual harassment of, and abusive conduct toward,
his subordinates. Thereafter, Singh
asserted a claim to the promised bonus.
Patron brought the instant action for declaratory relief, seeking
a declaration that it owes Singh nothing.
Singh filed a cross-complaint against Patron and John Paul DeJoria, the
Patron officer who allegedly promised him the bonus, for breach of contract and
other causes of action. In Singh’s
cross-complaint, he sought payment of the bonus.href="#_ftn1" name="_ftnref1" title="">>[1]

Patron
sought summary judgment on the basis of a statement Singh had made in an
unrelated case in 2006. In the course of
a dispute regarding the ownership of Patron, Singh submitted a sworn affidavit
in which he stated that the promised bonus had been only a possibility, and
that no plan to pay him the bonus had ever been formalized. In light of this admission, the trial court
granted summary judgment. On appeal,
Singh contends that, while this admission may constitute evidence against him
to be weighed at trial, it does not justify entry of summary judgment in light
of his subsequent declaration and other evidence to the contrary. We conclude that neither the doctrine of
judicial estoppel nor the doctrine of D’Amico
v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico) applies to give Singh’s 2006 declaration conclusive effect
in this case, and therefore reverse.

In
addition, Singh challenges the order of the trial court disqualifying his
counsel. Singh’s attorney was
disqualified on the basis that he, and his prior law firm, previously
represented Patron. As we conclude that
Patron has failed to establish that Singh’s chosen counsel was in a position to
have obtained confidential information from Patron relevant to this matter, we
reverse the disqualification order.

>FACTUAL
AND PROCEDURAL BACKGROUND

1. Underlying
Facts

The
company now known as Patron was, at one point, an Anguillan corporation which
went by the name of Caribbean Distillers Corporation, Ltd. (CDC). CDC eventually had two subsidiaries: (1) Patrón Spirits Company, a United
States entity; and (2) CDC S.A. de C.V. (CDC Mexico), a Mexican
subsidiary, which actually produces the tequila. The company originated in 1989, and was
founded by Martin Crowley and DeJoria, each as 50% shareholders.href="#_ftn2" name="_ftnref2" title="">[2] Crowley was the creative and driving force
behind the company, while DeJoria was a self-described “passive investor.”

Originally,
CDC did not produce its own tequila, but simply entered into a supply
agreement with a Mexican tequila distillery, Siete Leguas. As demand for Patron tequila increased, CDC
needed to produce its own tequila. In
2001, Crowley hired Singh. Singh was
appointed President and sole directorhref="#_ftn3" name="_ftnref3" title="">>[3]
of CDC and the sole administrator in charge of CDC Mexico. In 2002, under Singh’s direction,
construction began on CDC Mexico’s own tequila factory.

In
2003, Crowley unexpectedly suffered a href="http://www.sandiegohealthdirectory.com/">fatal heart attack. A dispute arose as to the rightful owner
of Crowley’s 50% interest in CDC.
DeJoria argued that he had a right to purchase Crowley’s shares;
the Crowley estate disagreed. At one
point, the Crowley estate sought to sell Crowley’s shares to Bacardi. Litigation ensued, in Anguilla, regarding the
proper disposition of Crowley’s interest.

In
the meantime, CDC was to continue onward in Crowley’s absence. There was uncertainty regarding CDC’s future
without Crowley. DeJoria was eager to
secure the assistance of individuals necessary to keep the company
running. He identified four executives
whom he considered the “core” individuals necessary for day-to-day management
and operation of the company: Singh
(production and operations); Edward Brown (sales); Vadim Fridman
(finance); and Francisco Alcaraz (tequila maker).

In
September 2003, DeJoria met with Brown, Alcaraz, and Fridman at the Fairmont
Hotel in Santa Barbara. Singh was unable
to attend the meeting, but learned of it shortly thereafter. At the meeting, DeJoria presented the executives
with a one‑page handwritten document beginning with the words
“Mr. V.V.I.P.’s.”href="#_ftn4"
name="_ftnref4" title="">[4] As the parties dispute whether this document
constitutes an agreement, we refer to it as the “V.V.I.P. Plan.” The document is unsigned, although DeJoria
concedes that he wrote it. The V.V.I.P.
Plan reads as follows in its entirety:

“Mr.
V.V.I.P.’s

“10%
Salary Raise Oct. 1, 2003

“
‘A’ @ net $200,000,001-- (value
$250,000,000 today)

1
1/4% = $2,500,000 plus Salary + Bonus

(700,000
[unintelligible, possibly “Rest of Staff”])

“AA
net $200,000,001 to $350,000,000.--.

2%
(3,000,000) plus ‘A’

($1,000,000
[unintelligible, possibly “Rest of Staff”] no %)

“AAA
net over $350,000,000--

2
1/2% plus ‘A’ plus AA

($1,500,000
[unintelligible, possibly “aprox + Rest of Staff”] No %

“Min.
5 years Employed, Happy or Sale of Company.

“After
J.P. Debt Anguilla [unintelligible] % paid in Lew [sic] of Bonus after. . . . It’s Bigger
than Bonus.”

“If
Still With Us and you die . . . beneficiary gets ‘A’ + 50% min of A or AA or not to
[unintelligible, possibly “exceed”] % of sale.”

While
certain terms of the V.V.I.P. Plan are unintelligible, it appears to provide
for a 10% raise as of October 1, 2003, and a substantial bonus based on the
“net” value of the company (presumably CDC), to take effect upon five years of
employment with the companyhref="#_ftn5"
name="_ftnref5" title="">[5]
or its sale.

Singh
was not present at the meeting in Santa Barbara. DeJoria asked that Singh meet with him
personally to hear the details of the plan.
Singh flew to Austin, Texas, to meet with DeJoria. At that time, DeJoria gave Singh a copy
of the V.V.I.P. Plan.

The
dispute in this case surrounds whether the V.V.I.P. Plan was intended to, and
did, go into effect at the time it was given to the executives in
question. Patron and DeJoria take the
position that the V.V.I.P. Plan was understood to be simply an >idea which DeJoria was considering
implementing if he succeeded in gaining
full ownership of CDC. Singh,
however, takes the position that the V.V.I.P. Plan was effective
immediately. The 10% raise did,
apparently, go into effect.href="#_ftn6"
name="_ftnref6" title="">[6]

As
the litigation regarding the Crowley estate’s shares of CDC continued, CDC
continued to operate and grow. During
this time, Singh periodically spoke with Brown about the possibility of
implementing a stock option plan to effectuate the terms of the V.V.I.P. Plan
in a manner which would be more advantageous from a taxation point of
view. It is undisputed that no such plan
was put into effect.

At
some point, Fridman left CDC, in order to become co-executor of Crowley’s
estate. In November 2007, each of the
remaining V.V.I.P.’s, Brown, Alcaraz, and Singh, received a “special bonus” of
$1,000,000. Singh takes the position
that the bonuses were understood to constitute advances on the amounts which
would soon be due under the V.V.I.P. Plan; Patron disagrees.href="#_ftn7" name="_ftnref7" title="">[7]

Ultimately,
in April 2008, the dispute over the ownership of Crowley’s shares in CDC was
finally resolved by settlement. Under
the settlement agreement, CDC was to be redomiciled to Switzerland and would
become Patron, it would repurchase the estate’s shares, and a 30% interest in
Patron would then be sold to Bacardi.
This came to pass; on November 21, 2008, Bacardi purchased its 30%
interest in Patron. Thus, DeJoria and
Bacardi became the joint owners of Patron.

Singh
states that, while the settlement was pending, Brown told him that, as part of
the settlement terms, the V.V.I.P. Plan would be converted into a stock option
plan, under which he would be given the same percentage he was allegedly
promised in the V.V.I.P. Plan. However,
this did not come to pass.

On
October 16, 2008, Patron terminated Singh’s employment. Patron takes the position that it terminated
Singh due to documented incidents of sexual harassment and abusive
behavior. Singh takes the position that
Patron terminated him simply to avoid paying him the substantial amounts to
which he was entitled under the V.V.I.P. Plan.

Bacardi
had purchased its 30% interest in Patron for $476 million. Based on that figure, Patron had a value of
over $1.58 billion. Indeed, Patron does
not dispute that, in 2008, Patron’s valuation was “at least $1.5 billion.” If Singh were entitled to compensation under
the V.V.I.P. Plan based on that valuation, he would be entitled to an amount in
excess of $35 million.href="#_ftn8"
name="_ftnref8" title="">[8]

2. Allegations
of the Pleadings

On
September 15, 2009, Patron brought suit against Singh, seeking a declaratory
judgment that it did not owe Singh any amounts beyond what it had already paid
him. Patron alleged that the V.V.I.P.
Plan had not constituted a promise to pay Singh. Patron further alleged that, even if the
V.V.I.P. Plan had been a promise to pay Singh, it could not bind Patron as it
was made without board approval.

On
December 9, 2009, Singh cross-complained against Patron and DeJoria, alleging
causes of action for breach of contract, breach of the implied covenant of good
faith and fair dealing, promissory estoppel, fraud (against DeJoria alone) and
unjust enrichment. In his
cross-complaint, Singh alleged that the V.V.I.P. Plan was a binding agreement,
which was partially performed by the 10% raise in October 2003. Alleging that he had satisfied his
obligations under the agreement by completing five additional years of
employment with CDC, Singh sought full payment of the amounts promised in the
V.V.I.P. Plan. Singh alleged that
DeJoria had intended to, and did, bind CDC to the V.V.I.P. Plan. Singh alleged that, although there was no
formal resolution adopting the V.V.I.P. Plan, all three then‑directors of
CDC, DeJoria, Singh, and Fridman, were parties to it and intended it to bind
Patron.href="#_ftn9" name="_ftnref9" title="">[9]

In
his promissory estoppel cause of action, Singh alleged that both DeJoria and
Brown made repeated verbal promises to him that the V.V.I.P. plan was in full
force and effect. Singh alleged that he
relied on those promises to continue working for CDC.

In
his unjust enrichment cause of action, Singh alleged that CDC grew
exponentially due, in part, to his efforts.
However, with respect to this cause of action, Singh did not seek an
amount in quasi-contract to compensate him for his efforts, but again sought the
amount he believed was due him pursuant to the V.V.I.P. Plan.

3. The
Discovery Dispute and Singh’s Anguillan Affidavit

As
the litigation proceeded, Singh filed a motion to compel further responses to
his requests for document production.
Among many documents sought, Singh sought all agreements relating to the
compensation of Brown, Fridman, and Alcaraz.
He also sought documents reflecting whether an employee stock plan was
eventually created to account for the V.V.I.P. compensation.

In
the course of their investigation of the case, Patron’s attorneys discovered an
affidavit submitted by Singh in the Anguillan litigation regarding the
disposition of the Crowley estate’s shares.
This affidavit, which first came to the court’s attention in opposition to
the motion to compel, would ultimately be critical to the trial court’s
disposition of this case, so we discuss the circumstances in which it arose in
some detail.

It
appears that, at the time of the affidavit, there were three members of the CDC
board: DeJoria; Singh; and Gigi Osco‑Bingemann,
on behalf of the Crowley estate. DeJoria
and Osco‑Bingemann were adversaries in the Anguillan litigation; Singh
was considered to be the neutral and independent member of the CDC board. Singh, on behalf of CDC, had filed an
application in the Anguillan court requesting that CDC be joined to the
proceedings for the purpose of approving and ratifying certain actions Singh
and DeJoria had taken at a CDC board meeting.
Although Singh’s application was apparently dismissed, DeJoria then
filed an application seeking identical relief.

In
opposition, on March 27, 2006, an affidavit was filed by both Osco‑Bingemann
and Fridman. In it, Osco-Bingemann and
Fridman argued that Singh had acted less than honorably in fulfilling his
responsibilities as a director of CDC.
After itemizing various alleged improprieties, Osco-Bingemann and
Fridman argued that Singh had a “massive financial conflict of interest” which
purportedly explained why Singh allegedly favored DeJoria over the Crowley
estate in his actions. Specifically,
Osco‑Bingemann and Fridman identified the conflict of interest as the
V.V.I.P. Plan. They declared, “Soon
after Mr. Crowley passed away, Mr. De Joria personally promised to
pay each of the four persons which comprised the CDC management team a bonus in
the event CDC was sold.”href="#_ftn10"
name="_ftnref10" title="">[10] The declaration went on to explain the terms
of the V.V.I.P. Plan.href="#_ftn11"
name="_ftnref11" title="">[11] It then stated, “It is no wonder that
Mr. Singh has done what he has done since Mr. Crowley passed
away. The promise of riches has
apparently been worth more to Mr. Singh than personal integrity or his
purported relationship with Mr. Crowley.
[¶] Throughout these proceedings,
Mr. Singh has failed to disclose this massive conflict of interest to this
Honourable Court.” Arguing that Singh
was biased in favor of DeJoria, Osco‑Bingemann and Fridman requested the
court to order that the Crowley estate be given the right to appoint an
additional person to the CDC board so that the board would be balanced evenly,
in light of the 50/50 split in share ownership between DeJoria and the Crowley
estate. Alternatively, they requested
that Singh be immediately removed from the board and replaced with an
independent director.href="#_ftn12"
name="_ftnref12" title="">[12] Both Osco-Bingemann and Fridman swore to the
truth of the statements in the affidavit.

On
April 12, 2006, Singh filed a supplemental affidavit, under oath, in opposition
to the affidavit of Osco-Bingemann and Fridman (Singh’s Anguillan
affidavit). In pertinent part, Singh
declared as follows: “Mr. Fridman and
Ms. Osco‑Bingemann proceed to refer to a meeting where the
possibility of a ‘bonus’ for the members of the management team was
discussed. What was omitted was the fact
that I was not present at any such meeting and I was not aware of it. I did have separate discussions with
Mr. De Joria pertaining to the possibility of implementing an
Incentive Plan for the key Management group vesting over a five year period but
these arrangements were never formalized.
As of the date of the swearing of this Affidavit, there is no such plan
in existence.”

Upon
discovering Singh’s Anguillan affidavit, Patron submitted it to the court in
support of Patron’s opposition to Singh’s motion to compel production of
documents. In reply, Singh submitted a
declaration attempting to distance himself from the apparently damaging
admissions in his Anguillan affidavit.
First, he stated that he did not propose the language in the affidavit;
it was prepared by an attorney who represented him “both individually and as a
Director” of CDC in the Anguillan litigation.
Second, he stated that the “ ‘Incentive Plan’ ” mentioned in
his Anguillan affidavit was not the
V.V.I.P. Plan, but was, instead, “meant to refer to the employee stock bonus
plan that Mr. Brown informed me on many occasions was going to be created and
which would contain the same material economic terms contained in the V.V.I.P.
Agreement, but that, at the time I signed the Affidavit had not yet been
established.” “In any event,” Singh
declared, “at all times, I believed the V.V.I.P. Agreement to be a binding
contract that did not need to be formalized.”

In
ruling on the motion to compel, the trial court specifically indicated that it
was “not making any substantive determination regarding the merits or
application” of Singh’s apparent admissions in his Anguillan affidavit. However, the court noted that, in light of
Singh’s admissions therein, the only relevant issue was whether something
occurred between the date of Singh’s Anguillan affidavit and Singh’s
termination “that formalized the terms of the V.V.I.P.” Plan or provided for its compensation in some
other plan. As such, the court concluded
that much of Singh’s requested discovery was not relevant, and could not lead
to the discovery of relevant information.

Indeed,
the trial court denied the motion to compel in its entirety, with a single
exception. The court granted the motion
to compel the compensation agreements of the other three V.V.I.P.’s, but only
up to the time of Singh’s termination in October 2008. Singh argues this ruling was in error, on the
theory that, if the other V.V.I.P.’s received compensation in the amount of the
V.V.I.P. Plan after he was terminated, that would support the conclusion that
he, too, would have been entitled to V.V.I.P. compensation had he not been
terminated.

4. The
Motion for Summary Judgment by Patron and DeJoria

On
February 10, 2011, Patron and DeJoria moved for summary judgment on the basis
that the V.V.I.P. Plan was never an enforceable contract, but only documented
a possible future one. Patron and
DeJoria took the position that the V.V.I.P. Plan was simply an idea jotted down
by DeJoria for a possible compensation plan he would offer the V.V.I.P.’s in
the event he gained full control of CDC, which never occurred. The motion was supported by a declaration
from Brown to that effect. It was also
supported by evidence that CDC’s financial statements, which had been approved
by Singh, confirmed that no such plan was in existence.href="#_ftn13" name="_ftnref13" title="">[13] Without a doubt, though, the key piece of
evidence on which Patron and DeJoria relied was Singh’s Anguillan affidavit
stating the V.V.I.P. Plan was not formalized by the time he executed that
affidavit.href="#_ftn14" name="_ftnref14"
title="">[14]

As
to Singh’s Anguillan affidavit, he admitted at his deposition that everything
in the affidavit was, in fact, true and correct. While he testified that the affidavit was
“very carefully worded by my attorney,” he agreed that he had read the
Anguillan affidavit of Osco-Bingemann and Fridman and that he and his attorney
then drafted his Anguillan affidavit together.
Singh testified, as he had when his Anguillan affidavit first came to
light in the discovery dispute, that the Anguillan affidavit referred to the
stock option plan, which had not been formalized. However, he admitted that, when his Anguillan
affidavit referred to “separate discussions with Mr. DeJoria pertaining to the
possibility of implementing an Incentive Plan,” he was, in fact, talking about
the October 2003 meeting he had with DeJoria in Austin, where he had been given the V.V.I.P. Plan.

5. Singh’s
Opposition to Summary Judgment Motion

Singh
submitted a declaration in opposition to the summary judgment motion. It stated, among other things, that the
customary practice at CDC was to do business without formal board resolutions. As to his Anguillan affidavit, he stated
that, when he referred to “separate discussions with Mr. DeJoria pertaining to
the possibility of implementing an Incentive Plan,” he was referring to “a
stock incentive plan to implement the cash bonus promised in the V.V.I.P.
agreement. This was a mechanism
that I discussed with Brown and other executives that would allow the V.V.I.P.s
to gain favorable tax treatment . . . of the cash bonus DeJoria
promised in the V.V.I.P. Agreement. The
cash bonus and the stock incentive plan were two separate things. That is why I do not refer to the cash bonus
promised in the V.V.I.P. Agreement in this affidavit. I have always maintained that the cash bonus
in the V.V.I.P. Agreement was not just a mere possibility and not contingent on
any other event including the implementation of any stock incentive plan.” He further stated, “I read the affidavit,
signed it under oath and stand by its contents.
If I was not clear in my affidavit about the terms or the difference between
the cash bonus in the V.V.I.P. Agreement and the stock incentive plan, as
discussed above, it is because the affidavit was not drafted by me or my
personal attorney. Rather it was
prepared and drafted by Patron’s attorneys to support DeJoria’s position that
he was entitled to Crowley’s fifty percent stake in Patron.” Singh continued, “Counsel explained to and
assured me that the paragraph refers to a separate stock incentive or stock
option plan, not the cash bonus promised to me by DeJoria in the V.V.I.P.
Agreement. I trusted these lawyers and
believed that they represented my best interests.”

In
addition, Singh also relied on the Anguillan affidavit of Osco-Bingemann and
Fridman for its characterization of the V.V.I.P. Plan.href="#_ftn15" name="_ftnref15" title="">[15] Specifically, the affidavit indicated that
the V.V.I.P. Plan was a promise to pay in the event CDC was sold; it did not
state that the V.V.I.P. Plan was conditioned on DeJoria obtaining 100% of the
company.

Curiously,
Singh also submitted several items of evidence which supported Patron’s
position in the summary judgment motion.
Singh included an excerpt from Brown’s deposition to the effect that,
subsequent to Singh’s termination, Patron instituted a stock-based compensation
plan. Alcaraz, the fourth V.V.I.P.,
received nothing under this plan, at DeJoria’s direction. Singh also included excerpts from DeJoria’s
deposition which confirmed his position that the V.V.I.P. Plan was simply an
idea that he would implement if he obtained 100% of CDC, which he never
did. Moreover, Singh included damaging
excerpts from his own deposition. Singh
testified that, after the October 2003 meeting with DeJoria in Austin, Singh
had no further discussions with DeJoria about the V.V.I.P. Plan. Moreover, Singh testified that he >never had any discussions with DeJoria about
a stock option plan. He again
testified that his Anguillan affidavit referred not to the V.V.I.P. Plan, but
“the stock option plan that was being done by Ed Brown at the time that was not
in writing.” However, he agreed that the
reference in his Anguillan affidavit to “separate discussions with
Mr. DeJoria” referred to his October 2003 meeting with DeJoria in Austin,
because he had no other meeting with DeJoria.

6. Reply
in Support of Summary Judgment

In
support of their reply memorandum, Patron and DeJoria argued that, under the >D’Amico rule, the trial court could
disregard Singh’s declaration to the extent that it contradicted his prior
sworn affidavit. Moreover, they
submitted additional excerpts from Singh’s testimony indicating that Singh
submitted his Anguillan affidavit with the intent of misleading the Anguillan
court. Specifically, they submitted the
following excerpt:

“Q. And you were telling the court that in fact
you do not have a financial conflict of interest because the V.V.I.P. agreement
was never formalized –

“A. Not the V.V.I.P.

“Q. -- and as of the date of the swearing of the
affidavit, there is no such plan in existence.
[¶] That’s what you were
representing to the court under penalty of perjury. Correct?

“A. I’m not – I’m not saying that V.V.I.P. was
not in place.

“Q. So you were tricking the court?

“A. My lawyer was.

“Q. Oh, your lawyer was tricking –

“A. Yes.

“Q. – the court –

“A. That’s –

“Q. – and you were going along with it?

“A. Well, I mean, if she thought that was legal
to do, I mean, you guys do that every day.

“Q. You believe that the –

“A. I believe – I believe what she --

“Q. -- lawyers trick the court every day?

“A. I believe what she -- I believe what she
wrote, and I believe that what she was doing the right thing.

“Q. Well, you believe that that was
deceptive. Right? Because you were responding to an allegation
by leaving out critical information.
That’s what you were doing. Isn’t
that right?

“A.
I – I was – my lawyer was responding to
that – to their affidavit and she did it the way she thought.”

7. Hearing,
Ruling, and Appeal

The
trial court issued a tentative ruling in favor of Patron and DeJoria, on the
basis that the D’Amico rule
prohibited Singh from defeating summary judgment by contradicting his own sworn
testimony. At the hearing on the motion,
Singh’s counsel argued that the D’Amico
rule does not apply to an affidavit in a prior case. The trial court stated, “He can just go in
one court and say one thing under oath and go in another court and say another
thing and you’re supposed to ignore it?”
Singh’s counsel responded, “Unless judicial estoppel applies --” The trial court stated, “It doesn’t work that
way. Not in my world.” Summary judgment was granted. Judgment was entered in favor of Patron and
DeJoria. Singh filed a timely notice of
appeal.

8. The
Disqualification Motion

While
the summary judgment motion was being briefed, Patron and DeJoria moved to
disqualify Singh’s counsel. Singh had
originally been represented by different counsel, and had then been in pro.
per. Ultimately, he retained Attorney
Louis “Skip” Miller of Miller Barondess to represent him. Patron and DeJoria moved to disqualify
Attorney Miller, but not his entire firm,href="#_ftn16" name="_ftnref16" title="">>[16]
from the representation, on the basis that Attorney Miller had previously
represented Patron. Specifically,
Attorney Miller’s former law firm, Christensen Miller, had been CDC’s primary
outside counsel, and had represented CDC in a wide variety of matters. The disqualification motion in this case
eventually focused on three matters, as well as Attorney Miller’s general
knowledge of Patron.

a. The
Seagram Litigation

Attorney
Miller was lead trial counsel in a lawsuit brought by Seagram & Sons
against CDC’s predecessor. The
litigation apparently involved an arrangement by which Seagram would produce
Patron tequila at a factory which was a joint venture between Seagram and
Patron. CDC’s predecessor argued that
Seagram failed to produce tequila sufficiently similar to Patron tequila. It is undisputed that the Seagram litigation
was resolved in July 2001, at or before
the time Singh was hired by CDC.

Patron
and DeJoria argued that issues in the Seagram litigation are substantially
related to two of the issues in this case.
Specifically, they argued that “issues of valuation” were at issue in
the Seagram litigation.href="#_ftn17"
name="_ftnref17" title="">[17] It is clear, however, that any issues of
valuation of the company in the Seagram litigation related only to its value in
2001, and not its value in 2008. Patron
and DeJoria also argued that issues related to Singh’s “purported
contributions” to CDC were at issue in the Seagram litigation.href="#_ftn18" name="_ftnref18" title="">[18] This is so because, according to Patron and
DeJoria, the tequila factory constructed by Singh was, in fact, at issue in the
Seagram litigation. This is factually
erroneous. The joint venture factory at
issue in the Seagram litigation opened in 1997, and, by April 1998, was
producing tequila.href="#_ftn19"
name="_ftnref19" title="">[19] In contrast, ground was not broken on the tequila
factory Singh constructed until 2002.

b. The
Skyy Spirits Matter

According
to Patron, Attorney Miller represented Patron in 2003 “in connection with Skyy
Spirits’ attempted but ultimately aborted takeover.” During this time, Attorney Miller obtained
“highly confidential valuation information regarding the company,” which Patron and DeJoria argued is
substantially related to the issue of valuation at issue in this case.href="#_ftn20" name="_ftnref20" title="">[20] Again, at most, Attorney Miller obtained
information regarding the valuation of CDC in 2003, not its valuation in 2008.

c. The
Siete Leguas Matter

Siete Leguas is the company from
which CDC purchased its tequila before it began distilling its own. A dispute arose between Siete Leguas and CDC
regarding ownership of the Patron trademark in the United States. Thereafter, Siete Leguas repudiated supply
agreements which had been negotiated with CDC.
This led to litigation, in 2003.
CDC was represented by the Christensen Miller firm. It is not clear to what extent Attorney
Miller participated in the litigation of this matter; he was clearly not the
lead attorney. In September 2003, the
Siete Leguas litigation was settled.
Attorney Miller reviewed the confidential settlement agreement. It cannot be argued, however, that the settlement
agreement constitutes confidential client matters with respect to this case, as
Singh was the individual who executed the settlement agreement on behalf of
CDC. This does demonstrate, however,
that Attorney Miller had some level of interaction with Singh on behalf of CDC.

d. General
Knowledge of CDC

Attorney
Miller was the engagement and billing partner for CDC at the Christensen Miller
firm. As a result, according to Patron
and DeJoria, he had access to, and acquired, confidential information relating
to CDC’s litigation philosophy, the approach of CDC’s decisionmakershref="#_ftn21" name="_ftnref21" title="">[21]
toward settlement, and similar information.
Similarly, Patron and DeJoria suggest that Christensen Miller was
counsel for CDC “on issues of corporate governance during the relevant time
period,” so Attorney Miller would have had access to confidential information
regarding the way in which CDC governed itself.
Patron and DeJoria took the position that corporate governance issues
are substantially relevant to the instant litigation, in that Singh’s complaint
relies on the theory that CDC operated informally and did not require a board
resolution to confirm the V.V.I.P. Plan.

9. Opposition
to the Disqualification Motion

In
opposition to the motion, Attorney Miller attempted to downplay his prior
representation. He stated that he had no
prior attorney/client relationship with the current Patron entity or
DeJoria. Attorney Miller admitted that
he defended the deposition of DeJoria in the Seagram matter, but did this as
counsel for CDC’s predecessor, not as counsel for DeJoria. He stated that he had no dealings with
DeJoria since the Seagram matter in 2001, and had never represented
DeJoria. As for the Skyy matter,
Attorney Miller had no recollection of it.
In any event, Singh argued there was no substantial relationship between
the prior representations and the instant case, and that Attorney Miller did
not obtain any confidential valuation or corporate governance information.

10. Reply
in Support of Disqualification Motion

While
Patron conceded that Attorney Miller had not represented Patron, it argued that Attorney Miller had represented CDC, its
predecessor. DeJoria presented evidence
that Attorney Miller had, in fact, represented DeJoria, despite his
protestations to the contrary.
Specifically, DeJoria submitted, under seal, a November 21, 2003
letter from Attorney Fink, a partner at the Christensen Miller firm, to
DeJoria, Singh, Brown, and representatives of the Crowley estate, disclosing
actual and/or potential conflicts among the parties and giving them an
opportunity to waive them. The letter
specifically indicated that both Crowley and DeJoria had previously entered
into a “consent to representation” and conflict waiver agreeing that the firm
“should represent both of their interests” in connection with the Seagram
matter. Patron and DeJoria also argued
that, to the extent Attorney Miller claimed that confidential information had
not been relayed to him, such information had been relayed to other attorneys
at Christensen Miller, and Attorney Miller should be charged with imputed
knowledge.

11. Hearing,
Ruling, and Appeal

After
a hearing, the disqualification motion was granted. The trial court found a substantial
relationship between the instant case and Attorney Miller’s prior involvement
in all three matters as well as his involvement in corporate governance
issues. The trial court concluded issues
of valuation and Singh’s contributions to Patron are at issue in this case. The court noted that the same facility Singh
built for Patron was at issue in the Seagram litigation. As we stated above, this is untrue.href="#_ftn22" name="_ftnref22" title="">[22] The court concluded issues of corporate
governance are at issue in this case, as Singh claims CDC entered into binding
agreements without formal board approval.
Finally, the court found significant the fact that Singh signed the
Siete Leguas settlement agreement in September 2003, the same month in which
the V.V.I.P. Plan was purportedly created.

Singh
filed a timely notice of appeal.href="#_ftn23"
name="_ftnref23" title="">[23] We consolidated the two appeals.

>ISSUES
ON APPEAL

As
to Singh’s appeal of the summary judgment, he argues that neither the >D’Amico rule nor judicial estoppel
prevents him from contradicting his Anguillan affidavit with a declaration in
this matter. We agree, and conclude summary
judgment was inappropriately granted.href="#_ftn24" name="_ftnref24" title="">>[24] As to the order disqualifying Attorney
Miller, Singh argues that the evidence does not support the conclusion that a
substantial relationship exists between Attorney Miller’s prior representations
of CDC and DeJoria and the instant matter.
We again agree, and reverse the disqualification order.

>DISCUSSION

1. The
Summary Judgment

While
we have set forth, at length, the factual and procedural background of this
case, the summary judgment was ultimately granted on a single issue. Singh appeared to state, under oath, in the
Anguillan affidavit, that the V.V.I.P. plan was discussed, but never formalized
and never came into effect. In opposition
to the summary judgment motion, Singh stated, to the contrary, that the
V.V.I.P. Plan did not need to be formalized, and came into effect when it was
presented to the V.V.I.P.’s. If Singh’s
Anguillan affidavit, either by means of the D’Amico
rule or judicial estoppel,href="#_ftn25"
name="_ftnref25" title="">[25]
bars consideration of his declaration to the contrary, Singh simply cannot
pursue any cause of action based on the V.V.I.P. Plan, and summary judgment was
appropriately granted. We first consider
the D’Amico rule, then turn to the
doctrine of judicial estoppel.
Concluding that neither rule precludes Singh’s causes of action in this
case, we then briefly consider whether a summary judgment was otherwise
appropriately granted.

a. D’Amico

Normally,
in reviewing a motion for summary judgment, we “construe the moving party’s
affidavits strictly, construe the opponent’s affidavits liberally, and resolve
doubts about the propriety of granting the motion in favor of the party
opposing it.” (Szadolci v. >Hollywood Park Operating Co. (1993) 14
Cal.App.4th 16, 19.) In >D’Amico, however, our Supreme Court held
that, “when discovery has produced an admission or concession on the part of
the party opposing summary judgment which demonstrates that there is no factual
issue to be tried, certain of those stern requirements applicable in a normal
case are relaxed or altered in their operation.” (D’Amico,
supra, 11 Cal.3d at p. 21.)
Specifically, when there is a clear and unequivocal admission by
a party, at deposition, a subsequent declaration to the contrary cannot
establish substantial evidence of a triable issue of fact. (Ibid.) “The reasons for this attitude toward the
legitimate products of discovery are clear.
As the law recognizes in other contexts (see Evid. Code,
§§ 1220-1230) admissions against interest have a very high credibility
value. This is especially true
when . . . the admission is obtained not in the normal
course of human activities and affairs but in the context of an established
pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes
relevant to the determination, on motion for summary judgment, of whether or
not there exist triable issues of fact
(as opposed to legal issues) between the parties, it is entitled to and should
receive a kind of deference not normally accorded evidentiary allegations in
affidavits.” (Id. at p. 22.) In short,
“[w]here a plaintiff’s admissions in a deposition contradict statements in
the plaintiff’s affidavits opposing the summary judgment, ‘the rule of liberal
construction loses its efficacy and the granting or denial of the motion for
summary judgment depends upon the issues of credibility. Accordingly, when a defendant can establish
his defense with the plaintiff’s admissions sufficient to pass the strict
construction test imposed on the moving party . . . , the
credibility of the admissions are valued so highly that the controverting
affidavits may be disregarded as irrelevant, inadmissible or evasive.’ [Citations.]”
(Niederer v. Ferreira (1987)
189 Cal.App.3d 1485, 1503.)

In
this case, we are not concerned with a declaration which contradicts a previous
admission of Singh at deposition.href="#_ftn26"
name="_ftnref26" title="">[26] Summary judgment was granted in this case on
the basis that Singh’s declaration contradicted Singh’s Anguillan affidavit. Thus,
the question presented is if the D’Amico
rule applies only to deposition testimony in the instant case, or if, in the
alternative, it applies to sworn testimony in a previous action.

The
issue was addressed in Jogani v. Jogani
(2006) 141 Cal.App.4th 158 (Jogani). In that case, the plaintiff alleged he had an
oral partnership agreement with the defendants to manage the defendants’ real
estate business, in exchange for 50% of the profits, assuming certain targets
were met. (Id. at p. 163.) However,
when the plaintiff was sued in an unrelated matter, and was subject to a
judgment debtor examination, he failed to mention his involvement in (or even
the existence of) the partnership. (>Id. at p. 163.) The defendants in the instant matter sought
to bind the plaintiff to his testimony at the judgment debtor examination under
the rule of D’Amico. The court held that D’Amico did not apply, explaining, “ ‘[The >D’Amico rule] might be described as pre‑trial
estoppel. Though the context in which it
is utilized is different, it serves the same function as judicial estoppel: it operates to prevent a party from playing
“fast and loose” with the courts by creating “sham” issues of
fact. . . . ’ ”
(Id. at p. 177.) It further stated, “ ‘The rule of
pre-trial estoppel says that a party cannot say one thing at a deposition
only to reverse course when his deposition is used against him in a motion for
summary judgment in the same litigation.’ ” (Ibid.) The court concluded that D’Amico rule did not apply to the judgment debtor testimony, which
could simply be raised at cross-examination at trial. (Id.
at pp. 177-178.)

It
is true that the Jogani case can be
distinguished on the basis that the prior testimony in that case (a judgment
debtor examination) was not submitted to the court, while the prior testimony
in this case (Singh’s Anguillan affidavit) was submitted to the court. This distinction, however, is significant for
the application of judicial estoppel, which we discuss below, not the
application of pre-trial estoppel under D’Amico. The D’Amico
rule generally applies to deposition testimony, which was not submitted to
a court. Submission to a court
simply makes no difference with respect to the application of >D’Amico.

In
any event, we agree with the analysis in Jogani. Admissions against interest are normally
admissible, but not conclusive. >D’Amico gives greater weight to specific
admissions – those which are obtained in the context of an established pretrial
procedure whose purpose is to elicit facts.
An affidavit in a prior action is an admissible admission against interest,
and may be conclusive due to application of judicial estoppel, but, as it is
not the legitimate product of discovery, it does not trigger the application of
the D’Amico rule.

Patron
and DeJoria had moved for summary judgment on the basis that the V.V.I.P. Plan
was not an enforceable agreement, but simply consisted of notes regarding a
possible future agreement, which never went into effect. Singh’s declaration in opposition to the
summary judgment motion stated that the V.V.I.P. Plan “was not just a mere
possibility and not contingent on any other
event . . . . ”
This statement is sufficient to raise a triable issue of fact on whether
the V.V.I.P. Plan was, in fact, immediately effective. The trial court concluded, however, that
Singh’s declaration on this point could be disregarded under >D’Amico, because it contradicted his
prior Anguillan affidavit. Under >D’Amico and Jogani, special deference is accorded to prior deposition testimony, such that a declaration contradicting
the prior deposition testimony in the
same action is disregarded. As
Singh’s Anguillan affidavit was simply prior testimony in another action, and
not prior deposition testimony in the same action, it is not granted the higher
deference provided for in D’Amico. Thus, Singh’s Anguillan affidavit does not
justify disregarding Singh’s declaration testimony to the contrary. The trial court erred in granting summary
judgment on this basis.

b. Judicial
Estoppel

“ ‘ “Judicial
estoppel, sometimes referred to as the doctrine of preclusion of inconsistent
positions, prevents a party from ‘asserting a position in a legal proceeding
that is contrary to a position previously taken in the same or some earlier
proceedings. . . . ’ ” . . . It is an
“ ‘extraordinary remed[y] to be invoked when a party’s inconsistent
behavior will otherwise result in a miscarriage of justice.’ ” ’ [Citation.]”
(Gottlieb v. Kest (2006)
141 Cal.App.4th 110, 130-131.) It
is an equitable doctrine which has some vagueness in its application. (International
Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345,
351.) The doctrine is invoked by courts
in their discretion. (>Ibid.)

“In
California, courts consider five factors in determining whether to apply
judicial estoppel: ‘The doctrine [most appropriately]
applies when “(1) the same party has taken two positions; (2) the positions
were taken in judicial or quasi‑judicial administrative proceedings; (3)
the party was successful in asserting the first position (i.e., the tribunal
adopted the position or accepted it as true); (4) the two positions are totally
inconsistent; and (5) the first position was not taken as a result of
ignorance, fraud, or mistake.” ’
[Citations.]” (>Gottlieb v. Kest, supra, 141 Cal.App.4th
at p. 131.)

“[T]he
application of judicial estoppel tenders a question of fact only if
a determination of fact is necessary to make a ruling on the claim. [Citation.]
If the facts material to a determination of judicial estoppel are
undisputed, a question of law is presented.”
(The Swahn Group, Inc. v. Segal
(2010) 183 Cal.App.4th 831, 843.) When
raised on summary judgment, the issue becomes whether there is a triable issue
of fact concerning any of the determinative factors. (Drain
v. Betz Laboratories, Inc. (1999) 69 Cal.App.4th 950, 959, fn. 8.)

On
appeal, Patron and DeJoria argue that judicial estoppel is an alternative basis
for upholding the summary judgment. They
therefore must show that all five factors have been established as a matter of
law. There is no dispute regarding the
first two factors: Singh took two
positions; and Singh took those positions in judicial proceedings. Singh disputes the remaining three factors. We consider the fourth (the two positions are
totally inconsistent) and the fifth (the first position was not taken as the
result of ignorance, fraud or mistake), before turning to the third (the party
was successful in asserting the first position).

(1) Inconsistency

As to the factor of inconsistency,
Singh argues that the position he takes in the current litigation – that the
V.V.I.P. Plan was an enforceable contract from the time it was presented to him
in 2003 – is not inconsistent with the position he took in his Anguillan
affidavit. Singh argues that, despite
the way Patron and DeJoria would interpret Singh’s Anguillan affidavit, the
affidavit did not assert that the V.V.I.P.
Plan was unenforceable, but only that the stock incentive plan was unenforceable. We conclude that Singh’s Anguillan affidavit
is simply not amenable to the tortured interpretation Singh would give it.

We
set forth the language of Singh’s Anguillan affidavit, interlineating, in
italics, the language Singh would add to it in order to make it consistent with
his current testimony:

“Mr.
Fridman and Ms. Osco-Bingemann proceed to refer to a meeting where the
possibility of a ‘bonus’ for the members of the management team was
discussed. What was omitted was the fact
that I was not present at any such meeting and I was not aware of it. I was,
however, aware of the meeting shortly after it took place, when Fridman called
me, faxed me a copy of the bonus document, and reviewed its terms with me.[href="#_ftn27" name="_ftnref27" title="">[27]] I did have separate discussions with Mr.
DeJoria pertaining to the possibility of implementing the very same bonus plan, shortly thereafter, at a meeting in Austin when
DeJoria ‘made it clear that the [bonus plan] was a contract, not merely an
offer or a proposal.’ >I accepted the offer, which was not
contingent upon anything. >Subsequently, over several years,
I discussed with Brown and other executives, but not DeJoria, a>[] Stock Incentive Plan for the key
Management group vesting over a five year period, which would effectuate the bonus plan in a manner allowing for
favorable tax treatment, but was by no means a necessity for the bonus plan to
be effective but these arrangements were never formalized. As of the date of the swearing of this
Affidavit, there is no such Stock
Incentive plan in existence, but the
bonus plan is binding and effective.”

Clearly,
Singh’s Anguillan affidavit is not consistent with his current testimony. In order for Singh’s interpretation to be
accepted, “separate discussions with Mr. DeJoria,” which concededly
occurred in 2003, must be interpreted as discussions with Brown, years
later. This is impossible. Clearly, Singh’s Anguillan affidavit was
referring to the V.V.I.P. Plan, not a stock incentive plan. Thus, it is wholly inconsistent with the
position he has taken in this case.

(2) Not
the Result of Ignorance, Fraud, or Mistake

Singh
argues that judicial estoppel cannot apply because he never intended his
Anguillan affidavit to state that he had no rights under the V.V.I.P. Plan, and
to the extent the affidavit made such a statement, it was the fault of Patron’s
attorney, who drafted the Anguillan affidavit.
Singh argues that “[a]ny lack of clarity in the Anguillan declaration
resulted from Singh’s mistaken reliance on the assurances of Patron’s counsel.”

Singh’s
argument is unpersuasive, given that it contradicts his deposition testimony,
and is, to that extent, barred by D’Amico. Singh testified to the following facts: Singh read the affidavit of Osco-Bingemann
and Fridman in the Anguillan litigation, and drafted his responsive affidavit
together with his attorney.href="#_ftn28"
name="_ftnref28" title="">[28] The attorney “[v]ery carefully worded” the
affidavit. The attorney was “tricking
the court,” and Singh went along with it.
Singh believed what his attorney wrote in the affidavit, and believed
she was doing the right thing.

Singh’s
deposition testimony establishes that there was no “mistaken reliance” on
counsel. Singh was involved in the
drafting of the Anguillan affidavit, and believed the “very careful[]
word[ing]” of the affidavit was appropriate.
Singh therefore cannot argue that the Anguillan affidavit was the result
of ignorance, fraud or mistake.

(3) Success
in Asserting the First Position Not Established

The
third necessary element for the application of judicial estoppel is that the
party was successful in asserting the first position (i.e., the tribunal
adopted the position or accepted it as true).
There is no evidence in the record as to whether the Anguillan court
accepted Singh’s position as true.href="#_ftn29" name="_ftnref29" title="">>[29]

Patron
and DeJoria argue that, in egregious circumstances, judicial estoppel can be
applied without evidence that the party was successful in asserting the first
position. Indeed, there is some
authority for this position. (>Thomas v. Gordon (2000)
85 Cal.App.4th 113, 119.) However,
subsequent to that case, the United States Supreme Court explained the
significance of the success factor in the doctrine of judicial estoppel,
stating, “Absent success in a prior proceeding, a party’s later inconsistent
position introduces no ‘risk of inconsistent court determinations,’ [citation],
and thus poses little threat to judicial integrity.” (New
Hampshire v. Maine (2001) 532 U.S. 742, 750-751.) Thereafter, California appellate courts began
to question whether judicial estoppel can ever apply in the absence of success
in the prior proceeding. (>The Swahn Group, Inc. v. Segal, supra, 183
Cal.App.4th 831, 848; Gottlieb v. Kest,
supra, 141 Cal.App.4th 110, 146-147.)

In
any event, even if judicial estoppel could apply in the absence of success in
the first proceeding, we conclude that this case does not present the extreme
circumstances that would justify application of the exception. It is no more egregious than any other case
in which the other four elements of judicial estoppel are present, but there
was no evidence of success before the prior tribunal. We again find Jogani persuasive. In that
case, the plaintiff had several lawsuits pending against him when he
transferred all of his real estate holdings to a partnership with his
brothers. When the lawsuits resulted in
judgments against him, the plaintiff was subjected to judgment debtor
exams. At each one, the plaintiff denied
any interest in the partnership or the properties he had transferred to
it. As a result, plaintiff’s creditors
settled for fractions of the judgments they had against him. Thereafter, plaintiff brought suit against
his brothers for breach of the partnership agreement. (Jogani,
supra, 141 Cal.App.4th at pp. 164-167.) While it could not be disputed that the
plaintiff obtained a benefit from his prior denials of the partnership at the
judgment debtor exams, the facts were not so egregious as to justify the
imposition of judicial estoppel in the absence of a court having been misled by
his statements. (Id. at p. 182.) Indeed, one
could argue that the circumstances in Jogani
were more egregious than those in the instant case, as the Jogani plaintiff made the statements in the judgment debtor exams
to hide assets from his creditors, while Singh made the statements in his
Anguillan affidavit in order to remain on the Patron board with DeJoria.

We
therefore conclude that the summary judgment in this case cannot be upheld on
the basis of judicial estoppel. However,
as judicial estoppel was not raised as a basis for summary judgment before the
trial court, and the doctrine would apply if it can be established that Singh
prevailed in asserting the position in his Anguillan affidavit, our conclusion
is without prejudice to Patron and DeJoria bringing a second motion for summary
judgment raising the issue, or asserting it at trial, if they can produce
evidence to support it.

c. Summary
Judgment Should Not Have Been Granted

As
neither judicial estoppel nor the D’Amico
rule apply to bar Singh from contradicting his Anguillan affidavit, we turn to
the issue of whether summary judgment was otherwise appropriately granted. We need not be detained long with the
issue. Singh alleged a cause of action
for breach of contract. Patron and
DeJoria argue that Singh’s only evidence that the V.V.I.P. Plan was an
enforceable contract is his own declaration.
Singh’s declaration, however, is sufficient to raise a triable issue of
fact. Nor is that the only
evidence. Indeed, one might question why
DeJoria would request Singh fly to Austin for the sole purpose of receiving and
discussing the V.V.I.P. Plan if that document was not intended to be a binding
agreement. Moreover, the Fridman
Anguillan affidavit took the position that the V.V.I.P. Plan was binding. Thus, triable issues of fact exist as to Singh’s
cause of action for breach of contract.
The summary judgment motion should not have been granted.href="#_ftn30" name="_ftnref30" title="">[30]

2. The
Discovery Dispute

Singh
moved to compel the production of documents revealing the compensation of the
three other V.V.I.P. executives. The
motion was granted with respect to their compensation prior to Singh’s termination,
but denied with respect to the period thereafter. Singh argues that this ruling was error.

“We
review the trial court’s discovery order under the abuse of discretion
standard. [Citations.] Accordingly, we may not substitute our view
for that of the trial court unless there is no legal justification for the
court’s order. [Citation.]” (Life
Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 649.)

When
considering pre-trial discovery regarding third party employees or former
employees, the discovery request implicates the privacy rights of those third
parties. (Life Technologies Corp. v. Superior Court, supra, 197 Cal.App.4th
at p. 651.) “The public interest in
preserving confidential, personnel information generally outweighs a private
litigant’s interest in obtaining that information. [Citation.]
‘A showing of relevancy may be enough to cause the court to balance the
compelling public need for discovery against the fundamental right of
privacy. [Citation.] However, the balance will favor privacy for
confidential information in third party personnel files unless the litigant can
show a compelling need for the particular
documents . . . . ’ ” (Id.
at p. 652.) “Even when the balance
does weigh in favor of disclosure, the
scope of disclosure must be narrowly circumscribed.’ [Citations.]”
(Id. at pp. 652-653.)

In
this case, Singh sought the post-October 2008 compensation information of
Brown, Fridman, and Alcaraz because, if Patron “compensated its other
executives and employees in a manner consistent with the terms of the” V.V.I.P.
Plan, it would provide support for his claim that the V.V.I.P. Plan was, in
fact, enforceable. Singh believed the
V.V.I.P. compensation might have been provided by means of an employee stock
plan established at the time of the global settlement of the litigation
regarding the disposition of the Crowley estate’s shares. He therefore sought both the salary
information of the remaining V.V.I.P. individuals as well as the benefits to
which they were entitled pursuant to the employee stock plan.

Assuming,
without deciding, that the trial court abused its discretion in limiting the
period of discovery, any error was necessarily harmless, as Singh has already
received the discovery to which he may have been entitled. Singh has demonstrated a need for
information regarding whether Brown,
Fridman, and Alcaraz received compensation (or stock) in the amounts set forth
in the V.V.I.P. Plan, but has established no compelling need sufficient to
overcome the individuals’ privacy rights with respect to their >precise compensation (or stock
benefits), if not in the amount set forth in the V.V.I.P. Plan.

By
this time, however, Singh has received the information to which he may be
entitled. Fridman is no longer with Patron,href="#_ftn31" name="_ftnref31" title="">[31]
and conceded that he had no right to compensation under the V.V.I.P. Plan. At the hearing on the motion to compel,
Patron’s counsel represented that Alcaraz never made a claim for V.V.I.P.
benefits, and Brown subsequently
testified that Alcaraz received nothing pursuant to the employee stock plan.href="#_ftn32" name="_ftnref32" title="">[32] Thus, the only V.V.I.P. whose compensation
could be at issue is Brown. Brown,
however, submitted a declaration stating that, at the time of the global
settlement, he did receive a new employment agreement, but under the agreement,
he did not receive compensation contemplated by the V.V.I.P. Plan. Brown further confirmed that the no shares
were set aside under the employee stock plan to account for the amounts purportedly
promised the V.V.I.P.’s. In short, Singh
has received discovery that none of the other V.V.I.P.’s received compensation
in the