DeLuca v. State Fish Co. , 158 Cal. Rptr. 3d 761 ( 2013 )

Filed 6/27/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
JOHN MICHAEL DELUCA et al., B240597
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. Nos. BC353346 &
v. NC041884)
STATE FISH CO., INC., a California
corporation,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County,
Ross M. Klein, Judge. Reversed.
Law Offices of John A. Schlaff and John A. Schlaff; Vakili & Leus and
Sa‘id Vakili for Plaintiff and Appellant.
Law Offices of Michael Leight and Michael Leight for Defendant and
Respondent.
_______________________________________
Following trial and appeal in cross-actions, a single cause of action remained for
trial between the parties. The plaintiff in the remaining action informed the defendant
that he would be using, as an expert witness, an expert who had testified on behalf of
the defendant in the prior trial. The defendant objected, on the ground that the expert
possessed confidential attorney-client and work product information, learned when
retained on behalf of the defendant. The defendant then moved to disqualify plaintiff‘s
counsel from further representing plaintiff, on the basis that plaintiff‘s counsel had
obtained access to the confidential information possessed by the expert. The trial court
granted the motion and disqualified plaintiff‘s counsel. On appeal by the plaintiff and
his disqualified counsel, we conclude that the defendant failed in its burden to establish
the expert possessed confidential information materially relevant to the pending
proceedings. We therefore will reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Action
The attorney disqualification issue arose in the context of a dispute between State
Fish Company, Inc. (State Fish), a seafood business owned and operated by the DeLuca
family, and John DeLuca, a former director of State Fish who has since opened
a competing seafood business. More particularly, the instant litigation involved
a dispute over the ownership of a fish storage, packing, and processing plant known by
the parties as ―Plant 2.‖ Both State Fish and DeLuca claimed ownership of Plant 2.
It was undisputed that, for approximately 15 years, while DeLuca was affiliated
with State Fish, State Fish paid DeLuca $30,000 per month rent for Plant 2. In 2004,
2
DeLuca obtained an appraisal of Plant 2, to determine the fair market rent of the plant.
The written appraisal calculated the fair market rent as of January 1, 2004 to be $45,453
per month, and indicated a minimum increase of 3% per year. Based on this appraisal,
DeLuca gave State Fish notice of a rent increase, effective January 1, 2005, to $46,800.1
State Fish refused to pay the increased rent.
Although the notice of rent increase set in motion DeLuca‘s departure from State
Fish, his actual departure was delayed for various reasons. On May 1, 2006, DeLuca
served State Fish with a 30-day notice to quit, terminating its tenancy at Plant 2.
A 3-day notice to quit followed on May 26, 2006. On June 2, 2006, when State Fish
had not vacated the premises, DeLuca filed an unlawful detainer action, seeking
possession of Plant 2 and its fair rental value from June 1, 2006.
On August 2, 2006, State Fish filed a multi-count complaint against DeLuca, for,
among other things, rescission of the deed to Plant 2 and breach of the corporate
opportunity doctrine. The cases were deemed related and eventually consolidated.
The actions proceeded to trial. At trial, State Fish took the position that DeLuca
held only nominal title to Plant 2. It further argued that DeLuca had violated the
corporate opportunity doctrine by taking title to Plant 2. As is relevant to the instant
dispute, State Fish offered testimony of Leo Vusich, an industrial real estate broker.
Vusich testified to the unique qualities of Plant 2 and its critical importance to State
Fish‘s business. He testified that, if State Fish were to build a similar facility, it would
1
The appraised 2004 rent of $45,453, plus a 3% increase for the next year, would
be $46,817.
3
take two years, cost upwards of $16 million, and would not be located as well as
Plant 2. In cross-examination by DeLuca‘s counsel, Vusich was asked to determine the
fair market rent for a facility such as Plant 2; he testified that $70,000 per month would
be reasonable. When presented with the hypothetical of being asked his advice if
offered the opportunity to rent Plant 2 for $46,800 per month, he replied, ―Great deal.‖
In other words, Vusich, as State Fish‘s expert, indicated a fair rental value for Plant 2
which was substantially higher than the amount indicated by DeLuca‘s appraiser.
Vusich not only confirmed that DeLuca‘s appraiser‘s valuation of the fair rental value
was reasonable; his testimony strongly implied that DeLuca‘s appraiser had
undervalued the property.
At the close of evidence, State Fish decided it wished to waive jury and/or
proceed solely on its causes of action in equity. The trial court then severed and
declared a mistrial in DeLuca‘s unlawful detainer action, and excused the jury.
The trial court then ruled in favor of State Fish, concluding that DeLuca had
violated the corporate opportunity doctrine, and rescinding the deed in favor DeLuca.
DeLuca appealed and we reversed, concluding that the trial court erred in its application
of the corporate opportunity doctrine. We further concluded that DeLuca had
established the defense of laches as a matter of law, and was therefore entitled to
judgment in his favor. We therefore remanded for a retrial on DeLuca‘s mistried
complaint for unlawful detainer.
4
2. DeLuca Retains Vusich on Remand
Our remittitur issued on September 26, 2011. As several years had passed since
the initial trial, it was necessary for DeLuca and his experts to reinspect Plant 2, in order
to reevaluate it for the unlawful detainer retrial. In the course of scheduling the
inspection of Plant 2, DeLuca‘s counsel indicated to State Fish‘s counsel that Vusich
would be inspecting Plant 2 on DeLuca‘s behalf.
State Fish‘s counsel immediately objected, on the basis that Vusich had been
State Fish‘s expert and was prohibited from switching sides in the litigation. Numerous
letters were exchanged among counsel,2 and the scheduled inspection of Plant 2 was
cancelled by State Fish, until such time as the dispute regarding Vusich could be
resolved.
The inspection was cancelled on December 27, 2011; the trial was set for
February 14, 2012. DeLuca intended to bring discovery motions, including a motion to
reset the cancelled inspection. On January 10, 2012, DeLuca brought an ex parte
application to specially set his discovery motions as soon as possible. DeLuca noted
that the earliest date the court could give him was January 31, 2012, which was too
2
DeLuca was represented by several attorneys at different firms. He took the
position that his rescission counsel was different from his unlawful detainer counsel.
He would subsequently take the position that only one of his attorneys spoke with
Vusich, so, if anyone should be disqualified for that communication, it should be that
attorney alone. The trial court disagreed, on the basis that all of DeLuca‘s attorneys
appeared to be involved in the exchange of correspondence regarding Vusich, which
gave rise to the inference that DeLuca‘s attorneys all communicated amongst
themselves, and that confidential information conveyed by Vusich to one attorney
would have been communicated to the other attorneys. As we will conclude that State
Fish did not bear its initial burden on the motion to disqualify counsel, we need not
reach the issue of whether the disqualification order was overbroad.
5
close in time to the trial date to enable him to move for summary adjudication following
discovery.3 On January 11, 2012, the court denied the motion, leaving DeLuca‘s
discovery motions set on January 31, 2012. The court further added4 that, should State
Fish seek to file a motion to disqualify DeLuca‘s counsel, such a motion should also be
set for January 31, 2012. The court set a shortened briefing schedule for such
a motion.5
3. State Fish’s Disqualification Motion
Pursuant to the briefing schedule set by the trial court, State Fish filed its motion
to disqualify DeLuca‘s counsel on January 17, 2012.6 The motion was supported by
a declaration of State Fish‘s counsel, Attorney Michael Leight, which stated the
3
Discovery motions are normally heard on five days‘ notice in unlawful detainer
cases. (Code Civ. Proc., § 1170.8.) DeLuca wanted his motions to be heard after the
statutory five days; he simply could not obtain such an early hearing date due to court
congestion.
4
The record on appeal does not contain the reporter‘s transcript from the hearing
on DeLuca‘s ex parte request. Therefore, it is unclear whether the court made the
additional ruling on its own motion or on request from State Fish‘s counsel.
5
On appeal, DeLuca argues that the trial court erred in hearing the disqualification
motion on shortened notice. As we resolve the appeal in DeLuca‘s favor on the merits
of the disqualification motion, we need not reach the issue. However, we note that,
given DeLuca‘s failure to designate a reporter‘s transcript of the hearing at which the
court set the shortened briefing schedule, DeLuca has failed to provide an adequate
record for review of the issue.
6
The motion also sought to prevent State Fish‘s new counsel ―from directly or
indirectly communicating with Leo Vusich regarding any issues in this case.‖ The
overbreadth of this request is immediately apparent. Vusich had already testified in the
mistried unlawful detainer action, giving testimony favorable to DeLuca. The order
sought by State Fish would prevent him from giving that very same testimony at the
retrial. As we shall discuss, there is no legal reason Vusich should have been prevented
from testifying at the unlawful detainer retrial.
6
following course of events. On July 19, 2006,7 Attorney Leight first contacted Vusich
advising him of Attorney Leight‘s desire to retain him as a consultant to assist with
preparation in the consolidated cases.8 Thereafter, Attorney Leight had a number of
telephone conversations with Vusich where he ―asked for Mr. Vusich‘s advice, and
consultation, concerning issues in the consolidated cases.‖9 During those conversations,
Attorney Leight ―also disclosed to Mr. Vusich some of [his] own impressions,
conclusions, opinions and theories about certain issues in the consolidated cases.‖
Thereafter, Attorney Leight associated Attorney Mitchell Stein to assist in the
representation of State Fish in the consolidated cases, and it was Attorney Stein, not
7
Both the motion and Attorney Leight‘s declaration refer to July 19, 2006 as the
date of Attorney Leight‘s initial communication with Vusich. DeLuca suggests the date
was actually July 16, 2006. It is unclear on what basis DeLuca uses the earlier date.
8
As we shall discuss, Vusich and DeLuca dispute whether Vusich was ever
retained by State Fish as a consultant, as opposed to a testifying expert. We note that
neither party ever presented to the trial court Attorney Leight‘s July 19, 2006 letter,
which would, presumably, resolve the issue. In any event, DeLuca would subsequently
note (in a motion for reconsideration) that, at the time of Attorney Leight‘s July 19,
2006 letter, trial was originally set in the unlawful detainer action for July 20, 2006, the
very next day, strongly suggesting that Vusich was retained as a testifying expert, not
a consultant. While this is persuasive evidence, it is not controlling, and the trial court
was free to disregard the inference in favor of Attorney Leight‘s declaration to the
contrary. We do note, however, that Attorney Leight could not possibly have written
Vusich in July 2006 regarding his desire to retain Vusich ―to assist . . . in connection
with [his] representation of State Fish in the consolidated cases,‖ as stated in his
declaration. (Italics added.) State Fish did not file its rescission complaint against
DeLuca until August 2, 2006; the actions were consolidated sometime later. Thus, there
were no consolidated cases in July 2006.
9
Interestingly, Attorney Leight‘s declaration does not state that Vusich provided
such advice.
7
Attorney Leight, who subsequently decided to retain Vusich to testify at trial.10
Attorney Stein designated Vusich as an expert on October 29, 2007. In addition to his
discussions with counsel as an expert, Vusich had been contacted directly by State Fish,
prior to the initial contact by Attorney Leight, and had been ―communicating with State
Fish personnel regarding State Fish‘s business operations, need for facilities, etc.‖11 In
the course of his work for State Fish, Vusich came into possession of ―confidential,
proprietary information of State Fish, regarding how State Fish conducts its business,
and what its real estate needs are in connection with conducting its business.‖ While
other declarations and exhibits were submitted in connection with the motion, there
were no declarations further describing, in any way, the purported confidential
information communicated to Vusich.12
10
Attorney Leight‘s declaration states that Attorney Stein was given the
responsibility of retaining experts ―for trial of the rescission portion of the consolidated
cases.‖ We note that the cases remained consolidated during trial, until after the close
of evidence, when the trial court declared a mistrial in the unlawful detainer action. In
other words, there was no distinction between the ―rescission portion‖ and the unlawful
detainer portion of the consolidated cases at the time of the expert designation; the cases
were being simultaneously tried. Indeed, the declaration of counsel accompanying the
designation of Vusich as an expert indicated that Vusich would ―discuss and explain the
costs that landlords are charging to rent cold storage facilities . . . . ‖ This issue was
clearly not exclusively related to the rescission portion of the consolidated cases, but
related to the unlawful detainer action as well.
11
While the record is not entirely clear, it appears that, at some point in 2006,
Janet Esposito of State Fish contacted Vusich for assistance in learning about the
availability of other fish processing plants, perhaps in light of the fact that DeLuca had
raised the rent on Plant 2 and indicated an intention to evict State Fish.
12
Both Attorney Leight and Esposito subsequently submitted declarations in
support of their reply in connection with the disqualification motion. The trial court
expressly did not rely on these declarations in making its ruling. In any event, the
8
4. DeLuca’s Opposition
In opposition to the disqualification motion,13 DeLuca submitted a declaration
from Vusich indicating that he had been retained as a testifying expert, not as
a consulting expert. Vusich stated that, at his deposition prior to the consolidated cases,
he had testified that he had spoken with Attorney Leight only once prior to being
designated as an expert, and confirmed that this testimony had been true. He further
stated that he had no recollection of any conversations in which Attorney Leight sought
his advice and consultation. Vusich also stated that he had no recollection of any
telephone calls in which Attorney Leight disclosed to him his impressions, conclusions,
opinions and theories. Vusich testified that he agreed to testify for DeLuca in the retrial
as he was familiar with Plant 2 and his testimony would be the same regardless of which
party hired him. He stated that he did not share any of Attorney Leight‘s purported
declarations indicate that, at times, Attorney Leight conveyed confidential information
to Esposito and other State Fish officers, and that Esposito sometimes spoke with
Vusich on behalf of Attorney Leight. The declarations do not specifically indicate
Esposito conveyed any of Attorney Leight‘s confidential information to Vusich. In any
event, in discussing the confidential information, the declarations do not specify any
confidential information discussed beyond Attorney Leight‘s ―impressions, conclusions,
opinions and theories about certain issues in the consolidated cases.‖
13
In addition to the evidence to be discussed above, DeLuca submitted evidence
intended to challenge the credibility of Attorney Leight. The trial court sustained
objections to all of this evidence. On appeal, DeLuca briefly argues the trial court erred
in sustaining the objections, arguing that, by disregarding the evidence challenging
Attorney Leight‘s credibility, the trial court, in effect, created an irrebuttable
presumption in favor of Attorney Leight. We disagree. The trial court weighed the
testimony of Attorney Leight and Vusich and specifically concluded that Attorney
Leight was more credible. In any event, DeLuca does not address any of the specific
grounds on which the objections were sustained, including relevance, hearsay, and lack
of foundation. Any argument that the objections were improperly sustained is therefore
considered waived.
9
impressions, conclusions, opinions and theories about the case with DeLuca‘s counsel,
and could not have done so, because he was not privy to such information.
5. Reply
In reply in support of the disqualification motion, State Fish submitted additional
evidence which, as noted above, the trial court disregarded.14 State Fish also argued
that DeLuca and his counsel had conspired with Vusich to breach Vusich‘s duty of
loyalty to State Fish, which arose from Vusich‘s employment by State Fish.
6. Subsequent Filings
DeLuca then filed, on the day of the hearing, evidentiary objections. DeLuca
also filed supplemental declarations in support of his opposition. The trial court
disregarded all of these filings as untimely.
7. Hearing and Ruling
After a hearing, the trial court issued a written opinion granting the motion to
disqualify DeLuca‘s counsel. The court specifically concluded that Attorney Leight
was more credible than Vusich, and therefore concluded that Attorney Leight conveyed
confidential work product to Vusich. While the trial court recognized that the
attorney-client privilege was waived with respect to the basis for Vusich‘s opinions
14
We do note, however, one significant piece of evidence. State Fish submitted
Vusich‘s invoice to Attorney Stein, dated September 22, 2008. The invoice has a line
item for ―8-3-06-present,‖ indicating ―[v]arious telephone conferences over several
dates with [Attorney] Stein and [Attorney] Leight re. State Fish Co.‖ State Fish relied
on this invoice as confirmation that Vusich had several calls with Attorney Leight.
DeLuca, however, noted that the line item billed for ―1.0‖ hours only, suggesting that,
over a two year period, Vusich had only a total of one hour worth of phone calls with
both Attorney Leight and Attorney Stein.
10
once it became certain that Vusich would testify at the prior trial, the court concluded
that ―it is both logical and reasonable that [Attorney] Leight imparted work product
to . . . Vusich that went beyond the formation of an opinion.‖ The court specifically
concluded that Vusich ―knows the strategies that [Attorney] Leight planned and that
goes beyond the basis for his expert opinion. It is work product.‖ The court also
concluded that Vusich was not merely a consultant and trial expert, but had also been
engaged privately by State Fish prior to this litigation, where he was privy to further
confidential information. As Vusich was privy to confidential information ―both inside
and outside of this litigation,‖ a rebuttable presumption arose that DeLuca‘s counsel
was also in possession of that information. Therefore, the court concluded, DeLuca‘s
counsel must be disqualified.
8. Motion for Reconsideration
DeLuca then moved to vacate the court‘s disqualification order as void, or for
reconsideration of the order. DeLuca relied on case authority on which he had not
relied in opposition to the motion, and on facts he had not previously placed before the
trial court.15 DeLuca argued that he had not presented this information earlier because
of the shortened briefing schedule for the disqualification motion, and argued that the
shortened briefing schedule worked a denial of due process. The trial court denied the
motion. The court found no due process violation, as DeLuca had notice and
a reasonable opportunity to be heard, and could have sought a brief continuance had he
15
Specifically, DeLuca had not previously realized that Vusich had been retained
just days prior to the initial trial date.
11
felt one was necessary. The court further found that DeLuca had failed to meet his
burden of showing new or different facts or law.
9. Subsequent Events
DeLuca and two of his attorneys filed a timely notice of appeal.16 While this
appeal was pending, the case proceeded to trial on DeLuca‘s unlawful detainer action.
Judgment was entered in favor of DeLuca. The trial court declared that DeLuca owns
―the entire full fee simple interest‖ in Plant 2. State Fish‘s lease was ordered
terminated, and State Fish was ordered to vacate possession on a date mutually agreed.
The court awarded DeLuca damages in the amount of $794,166.
On November 6, 2012, State Fish filed a notice of appeal from the unlawful
detainer judgment. (B245049) On November 28, 2012, DeLuca filed a notice of
cross-appeal.17
16
Although DeLuca and his attorneys both appealed from the disqualification
order, we refer to the appellants collectively as ―DeLuca.‖ The notice of appeal does
not appear in DeLuca‘s appendix, although it is required to be included. (Cal. Rules of
Court, rules 8.122(b)(1)(A), 8.124(b)(1)(A).) This is not the only rule violation with
respect to the appellants‘ appendix. An appellant‘s appendix, like a clerk‘s transcript, is
to use one side of the paper only (Cal. Rules of Court, rules 8.144(a)(2), 8.124(d)(1));
the appellants‘ appendix in this case is double-sided. We have nonetheless accepted the
appellants‘ appendix for filing, in the interests of judicial economy. We also note that
several pages appear to be missing from DeLuca‘s appendix. For example, Exhibit 3 to
the disqualification motion purports to be a reporter‘s transcript of the entirety of
Vusich‘s trial testimony. However, three pages – those numbered 3991, 3993, and 3997
– are missing from the appellants‘ appendix. Page 4 of DeLuca‘s opposition to the
disqualification motion is also missing. Although State Fish filed a respondent‘s
appendix, it did not provide this court with any of the missing pages, nor the missing
notice of appeal.
17
In his reply brief on appeal, DeLuca indicates that he would be filing a request
for judicial notice and a request for this court to take evidence – both requests would
12
ISSUES ON APPEAL
Preliminarily, we will address, and reject, State Fish‘s argument that this appeal
is moot, given that the unlawful detainer action has proceeded to judgment. Then, we
will proceed to the merits of the disqualification order. There are three types of
confidential information, allegedly possessed by Vusich, which formed the basis of the
disqualification motion: (1) confidential information obtained by Vusich when
employed by State Fish prior to contact by Attorney Leight; (2) confidential information
obtained by Vusich when employed by Attorney Leight as a consultant, but prior to his
designation as a testifying expert; and (3) confidential information obtained by Vusich
as a testifying expert. We conclude that the first category of information is not
confidential, and that the second and third categories cannot be separated once Vusich
was designated as a testifying expert. Once that occurred, any confidentiality with
respect to both categories of information was waived. Moreover, even if information in
the second category is considered confidential and could provide a basis for
a disqualification motion, such information could only provide a basis for
a disqualification motion if it was materially related to the pending proceedings. As
Attorney Leight‘s declaration provided no basis for the trial court to conclude that any
confidential information transmitted to Vusich was obtained by Vusich as a consultant
apparently relate to ―the post-trial status of the conflicts among the various parties to
this appeal.‖ DeLuca subsequently filed a request for judicial notice, which we have
granted in part. On our own motion, we have also taken judicial notice of the filing of
the notices of appeal of the unlawful detainer judgment.
13
only, and was materially related to the pending proceedings, we conclude that State Fish
failed to meet its burden as moving party on the disqualification motion.
DISCUSSION
1. This Appeal Is Not Moot
State Fish argues that, as the unlawful detainer action has been resolved (and
resolved in favor of DeLuca), the appeal is moot. This is not so. Both parties have
appealed the unlawful detainer judgment. As such, there is no final judgment. Our
disposition of the instant appeal will determine whether the attorneys who represented
DeLuca prior to the disqualification order should be permitted to represent him in the
ongoing appellate proceedings, and in any proceedings on remand, should one occur.
We will therefore address the merits of this appeal.
2. Standard of Review
The trial court‘s decision on a motion for disqualification is usually reviewed for
abuse of discretion. (Roush v. Seagate Technology, LLC (2007) 150 Cal. App. 4th 210,
218.) The court‘s discretion is limited by the applicable legal principles and is subject
to reversal when there is no reasonable basis for the action. (DCH Health Services
Corp. v. Waite (2002) 95 Cal. App. 4th 829, 832.) ―[W]here there are no material
disputed factual issues, we review the trial court‘s determination as a question of law,
and we defer to a trial court‘s express or implied factual decisions on disputed factual
issues only if that decision is supported by substantial evidence. Importantly, although
an inference can serve as substantial evidence for a finding, ‗ ―the inference must be
a reasonable conclusion from the evidence and cannot be based upon suspicion,
14
imagination, speculation, surmise, conjecture or guesswork. [Citation.] Thus, an
inference cannot stand if it is unreasonable when viewed in light of the whole record.
[Citation.]‖ [Citation.]‘ ‖ (Shandralina G. v. Homonchuk (2007) 147 Cal. App. 4th 395,
411.)
3. Burden On A Disqualification Motion
―The trial court‘s power to disqualify counsel is derived from the court‘s inherent
power ‗[t]o control in furtherance of justice, the conduct of its ministerial officers.‘
[Citations.] Disqualification motions implicate several important interests, among them
are the clients‘ right to counsel of their choice, the attorney‘s interest in representing
a client, the financial burden of replacing a disqualified attorney, and tactical abuse that
may underlie the motion. [Citation.] The ‗paramount‘ concern in determining whether
counsel should be disqualified is ‗the preservation of public trust in the scrupulous
administration of justice and the integrity of the bar.‘ [Citations.] It must be
remembered, however, that disqualification is a drastic course of action that should not
be taken simply out of hypersensitivity to ethical nuances or the appearance of
impropriety.‖ (Roush v. Seagate Technology, LLC, supra, 150 Cal.App.4th at
pp. 218-219.)
When a party moves to disqualify opposing counsel based on allegedly improper
contact between opposing counsel and the movant‘s expert witness, ―the party seeking
disqualification has the burden to show that the expert possesses confidential
information materially related to the proceedings before the court. The moving party‘s
initial burden does not require the party to disclose the actual information contended to
15
be confidential. ‗ ―However, the court should be provided with the nature of the
information and its material relationship to the proceedings.‖ ‘ [Citation.] ‗ ―Once this
showing has been made, a rebuttable presumption arises that the information has been
used or disclosed in the current employment.‖ ‘ [Citation.]‖ (Roush v. Seagate
Technology, LLC, supra, 150 Cal.App.4th at p. 220; In re Complex Asbestos Litigation
(1991) 232 Cal. App. 3d 572, 596.)
4. Confidential and Privileged Information
Before turning to the specific issues relating to expert witnesses raised by this
case, it is useful to briefly discuss the types of confidential and privileged information at
issue. We are concerned with confidential business information given employees,
information subject to the attorney-client privilege, and work product information.
a. Confidential Business Information
Our discussion of the first category of information, confidential business
information given employees, need not detain us long. State Fish takes the position that
Vusich acquired confidential information from State Fish when employed by State Fish
prior to the time Attorney Leight contacted Vusich. Yet Vusich was never an employee
of State Fish in the traditional sense. Vusich was, at most, an independent contractor of
State Fish. Vusich is an industrial real estate broker; he was contacted by Esposito to
assist State Fish in, as Vusich testified at deposition, ―gathering information about the
availability of . . . seafood processing plants in the Southern California port area.‖
Vusich talked with Esposito ―about industrial properties, plant properties available in
the greater Southern California area.‖ While a former employee of a corporation may
16
owe the corporation a duty of confidentiality, especially if the relationship was
formalized in a written confidentiality or non-competition agreement, no such
relationship existed in this case. Vusich was simply a real estate broker consulted by
State Fish. State Fish presents no authority supporting its implicit contention that the
real estate broker/client relationship gives rise to a duty of confidentiality, and
independent research has disclosed none. Thus, there is no protection provided by the
law for any conversations between Vusich and Esposito in connection with Vusich‘s
work for State Fish prior to the time he was contacted by State Fish‘s counsel. That
Vusich or Esposito may have subsequently discussed the same information with State
Fish‘s counsel does not change the result. ― ‗[A] communication which was not
privileged to begin with may not be made so by subsequent delivery to the attorney.
[Citation.]‘ [Citation.]‖ (Nalian Truck Lines, Inc. v. Nakano Warehouse &
Transportation Corp. (1992) 6 Cal. App. 4th 1256, 1265.) ― ‗ ―[A] litigant cannot silence
a witness by having him reveal his knowledge to the litigant‘s attorney.‖ ‘ [Citations.]‖
(Jasper Construction, Inc. v. Foothill Junior College District (1979) 91 Cal. App. 3d 1,
17.) To the extent the trial court concluded that State Fish conveyed confidential
information to Vusich prior to the time Attorney Leight first consulted with Vusich, the
court was in error. Any such information, therefore, would not support the
disqualification order.
b. Attorney-Client Privileged Information
The second category of confidential information at issue is information subject to
the attorney-client privilege. This privilege is codified in the Evidence Code. It
17
protects ―information transmitted between a client and his or her lawyer in the course of
that relationship and in confidence by a means which, so far as the client is aware,
discloses the information to no third persons other than those who are present to further
the interest of the client in the consultation or those to whom disclosure is reasonably
necessary for the transmission of the information or the accomplishment of the purpose
for which the lawyer is consulted, and includes a legal opinion formed and the advice
given by the lawyer in the course of that relationship.‖ (Evid. Code, § 952.) The
attorney-client privilege is lost, however, when the holder of the privilege has
―disclosed a significant part of the communication or has consented to disclosure made
by anyone.‖ (Evid. Code, § 912.)
c. Work Product Information
The third type of confidential information at issue in this case is work product.
While it is often spoken of as a ―privilege,‖ the work product rule is, in fact, a limitation
on pretrial discovery. (Jasper Construction, Inc. v. Foothill Junior College District,
supra, 91 Cal.App.3d at p. 16; see Code Civ. Proc., § 2018.010 et seq.) The purpose of
the doctrine is twofold: (1) to preserve the rights of attorneys to prepare for trial with
the degree of privacy necessary to encourage them to prepare thoroughly and investigate
unfavorable as well as favorable aspects of their cases; and (2) to prevent an attorney
from taking undue advantage of opposing counsel‘s efforts. (Kizer v. Sulnick (1988)
202 Cal. App. 3d 431, 441.) There are two parts to work product protection. First,
a ―writing that reflects an attorney‘s impressions, conclusions, opinions, or legal
research or theories is not discoverable under any circumstance.‖ (Code Civ. Proc.,
18
§ 2018.030, subd. (a).) There are no writings of this type at issue in the case. Second,
there is a conditional protection for all other types of attorney work product. This work
product is not discoverable ―unless the court determines that denial of discovery will
unfairly prejudice the party seeking discovery in preparing that party‘s claim or defense
or will result in an injustice.‖18 (Code Civ. Proc., § 2018.030, subd. (b).) Although
there is no statutory provision defining waiver of the work product protection, waiver
―is generally found under the same set of circumstances as waiver of the attorney-client
privilege—by failing to assert the protection, by tendering certain issues, and by
conduct inconsistent with claiming the protection.‘ [Citation.]‖ (Roush v. Seagate
Technology, LLC, supra, 150 Cal.App.4th at p. 222.)
5. Consulting and Testifying Experts
We now turn to the application of the attorney-client privilege and work product
protection to communications between counsel and an expert witness. An expert
witness may be a consulting expert, retained only to assist counsel in the preparation of
the case. Alternatively, an expert may be a testifying expert, retained only to give
a professional opinion at trial. In many cases, an expert is retained both to consult and
to testify.
If the expert is solely retained as a consulting expert, the attorney-client privilege
applies to communications made by the client or the attorney to the expert in order for
the expert to properly advise counsel. As noted above, the attorney-client privilege
18
Cases describe this showing as ― ‗good cause.‘ ‖ (National Steel Products Co. v.
Superior Court (1985) 164 Cal. App. 3d 476, 487.)
19
applies to communications ―to whom disclosure is reasonably necessary for the
transmission of the information or the accomplishment of the purpose for which the
lawyer is consulted‖ (Evid. Code, § 952); this clearly includes communications to
a consulting expert. (Roush v. Seagate Technology, LLC, supra, 150 Cal.App.4th at
p. 225; Shadow Traffic Network v. Superior Court (1994) 24 Cal. App. 4th 1067,
1078-1079.) Similarly, a consulting expert‘s report, prepared at the attorney‘s request
and with the purpose of assisting the attorney in trial preparation, constitutes work
product (Williamson v. Superior Court (1978) 21 Cal. 3d 829, 834), entitled to
conditional protection and barred from discovery in the absence of good cause. (Kizer
v. Sulnick, supra, 202 Cal.App.3d at p. 440.)
The situation is different, however, with a testifying expert. As a general rule,
neither the attorney-client privilege nor the work product protection will prevent
disclosure of statements to, or reports from, a testifying expert. When a client calls that
party‘s attorney to testify at trial to information the attorney could have only learned
through the attorney-client privilege, the privilege is waived. ―It follows that the same
waiver exists when an agent of the attorney is to testify to matters that he could only
have learned because of the attorney-client relationship.‖ (National Steel Productions
Co. v. Superior Court, supra, 164 Cal.App.3d at p. 484.) Once a testifying expert is
designated as a witness, the attorney-client privilege no longer applies, ―because the
decision to use the expert as a witness manifests the client‘s consent to disclosure of the
information.‖ (Shadow Traffic Network v. Superior Court, supra, 24 Cal.App.4th at
p. 1079.) Similarly, when an expert witness is expected to testify, the expert‘s report,
20
which was subject to the conditional work product protection, becomes discoverable, as
the mere fact that the expert is expected to testify generally establishes good cause for
its disclosure.19 (Williamson v. Superior Court, supra, 21 Cal.3d at pp. 834-835.)
The issue becomes more complex, however, when the expert is both a consulting
and a testifying expert. ―To complicate his position, the expert normally wears two
hats. He is employed by counsel to form an opinion which he may later present as
a witness in court. He is also engaged as an adviser on trial preparation and tactics for
the case and in this latter capacity serves as a professional consultant to counsel on the
technical and forensic aspects of his specialty. From the point of view of counsel, the
expert‘s freedom to advise counsel, to educate counsel on the technical problems of his
case, to prepare him to handle unfamiliar data in court, to analyze the availability of
expert opinion and the need for its use, all without hindrance from the opposing side,
are important elements of counsel‘s privacy of preparation. Consultation between
expert and counsel may appropriately be given broad immunity from discovery, both as
to expert and as to counsel, because none of the expert‘s opinion, professional though it
may be, is relevant evidence in the case. To the contrary, his opinion is and will remain
wholly irrelevant and immaterial as evidence until the expert is called as a witness on
the trial and shown to be qualified to give competent opinion testimony on a matter in
which he is versed and which is material to the case. [Citation.]‖ (Swartzman v.
Superior Court (1964) 231 Cal. App. 2d 195, 202-203.) ―Nevertheless the initial status
19
Indeed, discovery statutes now provide for the mutual exchange of testifying
experts‘ reports. (Code Civ. Proc., § 2034.210, subd. (c).)
21
of the expert, as consultant and possible witness, changes its character at that point in
the suit when it has become known he will actually testify as a witness. When it
becomes reasonably certain an expert will give his professional opinion as a witness on
a material matter in dispute, then his opinion has become a factor in the cause. At that
point the expert has ceased to be merely a consultant and has become a counter in the
litigation, one to be evaluated along with others. Such evaluation properly includes
appropriate pretrial discovery. [Citations.]‖ (Id. at p. 203.)
Case authority has drawn a bright line at the point where it becomes reasonably
certain that the expert will testify – holding that the attorney-client privilege and work
product protection apply prior to the point, but not subsequent to it. (See, e.g., People v.
Milner (1988) 45 Cal. 3d 227, 241; Williamson v. Superior Court, supra, 21 Cal.3d at
pp. 834-835; Sanders v. Superior Court (1973) 34 Cal. App. 3d 270, 278-279.)
However, an exception has been carved out when a party seeks pre-trial
discovery of the written report of an expert which contains both: (1) information
relevant to the opinion the expert will give as a testifying expert; and (2) the expert‘s
advice on trial preparation matters, conveyed as a consulting expert.20 ―[T]he mere fact
the expert may have the dual status of a prospective witness and of adviser to the
attorney, does not remove the product of his services rendered exclusively in an
20
Information relevant to the opinion the expert will give as a testifying expert
includes the expert‘s ―findings and opinions . . . that go to the establishment or denial of
a principal fact in issue‖; while information rendered as a consulting expert includes
information ―designed to assist the attorney in such matters as preparation of pleadings,
the manner of presentation of proof, and cross-examination of opposing expert
witnesses.‖ (National Steel Products Co. v. Superior Court, supra, 164 Cal.App.3d at
p. 489.)
22
advisory capacity, as distinguished from the product of services which qualify him as an
expert witness, from the work product limitation upon discovery.‖ (Scotsman Mfg. Co.
v. Superior Court (1966) 242 Cal. App. 2d 527, 531.) In other words, an expert‘s opinion
regarding the subject matter about which the expert is a prospective testifying expert is
discoverable, but the expert‘s advice rendered to the attorney in an advisory capacity is
still subject to conditional work product protection. (Ibid.) Therefore, when an expert‘s
written report was prepared both as a consulting expert and a testifying expert, a trial
court is often required to conduct an in camera review of the report, to separate out the
information provided as a consultant from the information provided a testifying expert.
The latter information is discoverable; the former is discoverable only a showing of
good cause.21 (National Steel Products Co. v. Superior Court, supra,164 Cal.App.3d at
pp. 489-490.)
We emphasize that the above discussion relates only to the pretrial discovery of
an expert‘s opinions and, specifically, the expert‘s report. At issue in this case is not the
discoverability of Vusich‘s report,22 but whether DeLuca‘s counsel was properly
disqualified for retaining Vusich‘s services for the retrial.
21
Should the report reflect the attorney’s impressions, conclusions, opinions, legal
research or theories, such information is subject to the absolute work product protection
and is not discoverable at all.
22
Indeed, there is no suggestion that Vusich ever prepared a written report.
23
6. When Counsel May Be Disqualified for Contact with an
Opposing Party’s Expert
A party moving to disqualify opposing counsel for improper contact with the
moving party‘s expert must establish that the expert possesses confidential information
materially related to the proceedings before the court. Once this showing has been
made, it gives rise to a rebuttal presumption that the information has been disclosed to
opposing counsel.
In very broad terms, a consulting expert‘s opinions are confidential, while
a testifying expert‘s opinions are discoverable. Because of this, it has been held that
when one party‘s attorney has had contact with the opposing party‘s consulting expert,
the attorney may be disqualified. (Collins v. State (2004) 121 Cal. App. 4th 1112, 1117,
1126-1127; County of Los Angeles v. Superior Court (1990) 222 Cal. App. 3d 647, 650,
657-658.) However, as a testifying expert‘s opinions are no longer subject to the
attorney-client privilege or work-product protection—particularly when, as in this case,
the expert has already testified—the expert is not in possession of any confidential
information and there is therefore no reason that opposing counsel cannot retain the
expert.
State Fish, however, argues that the distinction is not so straightforward when the
expert served in both consulting and testifying capacities. Relying on authority
governing the partial conditional protection remaining for expert opinions given in the
capacity of a consultant in the written report of an expert serving in dual capacities,
State Fish argues that opinions of counsel orally conveyed to the dual-capacity expert in
24
the course of discussions with the expert in his consultant capacity similarly retain their
confidential work-product protection. There is no authority for this proposition, and it
is contrary to existing law. The case authority which provides that the work product
protection terminates once an expert is reasonably certain to testify is based on the
premise that the expert began as a consulting expert and later became a testifying
expert. (E.g., Williamson v. Superior Court, supra, 21 Cal.3d at pp. 834-835; County of
Los Angeles v. Superior Court, supra, 222 Cal.App.3d at pp. 654-655.) An exception to
this rule providing that work product information conveyed to the expert as a consultant
remains protected would swallow the rule in its entirety. Moreover, practical
considerations weigh against adopting such an exception. A written report can be
redacted and partially disclosed. State Fish, however, would bar opposing counsel from
all contact with a dual-capacity expert witness simply because the expert has heard
some protected work product information. Moreover, any work-product protection for
such orally-conveyed information is conditional, not absolute. The party who seeks
contact with the dual-capacity expert will have a strong argument that good cause exists
to overcome the conditional privilege, given the party‘s undisputed right to discuss with
the dual-capacity expert all information relayed to (and from) the expert in his
testimonial capacity. There is good reason for a general rule that the conditional
protection for any attorney work-product conveyed to an expert has no application once
the expert is likely to testify. Indeed, any time an attorney speaks with a testifying
witness – percipient or expert – the attorney discloses some amount of work product, in
the fact of the conversation and the matters discussed. This act of disclosure does not
25
mean that the witness possesses confidential information which prevents opposing
counsel from speaking privately with the witness. Instead, disclosing such information
to the witness acts as a waiver of the work product protection. If an attorney wishes to
keep the work product conveyed to a consulting expert protected, the attorney may do
so by the simple expedient of not designating the expert as a testifying expert.
7. DeLuca’s Counsel Should Not Have Been Disqualified
Even if attorney work product conveyed to a consulting expert remains subject to
work product protection after the expert has been designated as a testifying expert, we
conclude that State Fish wholly failed in its burden of establishing that such confidential
information materially related to the proceedings before the court was conveyed to
Vusich. State Fish provided evidence only that Attorney Leight disclosed to Vusich
―some of [his] own impressions, conclusions, opinions and theories about certain issues
in the consolidated cases.‖ While we agree that State Fish was not required to disclose
to the court the purported work product information he conveyed to Vusich, State Fish
was required to provide the court with the nature of the information and its material
relationship to the proceedings. It failed to do so.
As to the nature of the information, Attorney Leight did not specify that the
―impressions, conclusions, opinions and theories‖ he conveyed pertained to the subjects
on which he sought advice from Vusich as a consultant, and not subjects on which
Vusich was ultimately designated to testify.23 More importantly, Attorney Leight did
23
Attorney Leight never stated that he discussed, for example, ways to
cross-examine DeLuca‘s experts with Vusich.
26
not suggest, in any way, that the impressions, conclusions, opinions and theories which
he conveyed to Vusich remained confidential after the initial trial had been completed.
The trial court inferred that Vusich ―knows the strategies that [Attorney] Leight
planned.‖ However, the initial unlawful detainer trial was nearly completed; a mistrial
was declared after the close of evidence. Any strategies Attorney Leight planned for the
initial trial were very likely revealed during the course of the initial trial; Attorney
Leight wholly failed to demonstrate that any of the strategies he conveyed to Vusich
remained confidential by the time DeLuca‘s counsel retained Vusich.
Not only was State Fish required to show that the strategic information Attorney
Leight conveyed to Vusich remained confidential after the first trial had been
completed, it was also required to show that the strategic information Attorney Leight
conveyed to Vusich was materially related to the pending retrial. The rescission portion
of the consolidated cases is over; thus, any strategic information Attorney Leight
conveyed to Vusich which related to the rescission portion of the consolidated cases is
simply not materially related to the unlawful detainer proceedings which were pending
before the trial court at the time of the disqualification motion. Yet Attorney Leight
declared only that he conveyed to Vusich his thoughts ―about certain issues in the
consolidated cases.‖ This is insufficient evidence to establish the information was, in
fact, on an issue materially related to the pending retrial.
In short, in order to prevail on its disqualification motion, State Fish needed to
trigger the rebuttable presumption. In order to do that, State Fish needed to establish
that confidential information materially related to the pending proceedings was
27
conveyed to Vusich. No information conveyed by State Fish to Vusich prior to
Attorney Leight‘s contact with Vusich constituted materially related confidential
information. No information conveyed by State Fish or Attorney Leight to Vusich
which enabled Vusich to prepare the opinions to which he testified constituted
materially related confidential information. At best, State Fish would have been
required to present evidence that Attorney Leight conveyed to Vusich, in his capacity as
a consultant, attorney impressions, conclusions, opinions and/or theories which were
materially related to the unlawful detainer retrial, but which were not substantially
revealed in the course of the initial unlawful detainer trial. State Fish utterly failed to
meet this burden. The trial court therefore erred in granting the disqualification motion.
DISPOSITION
The disqualification order is reversed. DeLuca shall recover his costs on appeal.
CERTIFIED FOR PUBLICATION
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
ALDRICH, J.
28