Filed 8/14/14 Rickley v. Jamison 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



REBECCA A. RICKLEY,                                                        B250972

         Plaintiff and Appellant,                                          (Los Angeles County
                                                                           Super. Ct. No. SC116576)
         v.

MARK B. JAMISON,

         Defendant and Respondent.




         APPEAL from an order of the Superior Court of Los Angeles County,

Daniel J. Buckley, Judge. Affirmed.

         Law Offices of Natasha Roit and Natasha Roit for Plaintiff and Appellant.

         Law Offices of David J. Weiss, David Weiss, Daron Barsamian; Pollack,

Vida & Fisher and Daniel P. Barer for Respondent.



                            _______________________________________
         Rebecca A. Rickley appeals an order denying her motion to disqualify defense

counsel and expert witnesses in a dental malpractice action. Defense counsel agreed to

limit the scope of deposition subpoenas seeking Rickley’s medical records from third

parties and served new subpoenas accordingly. But defense counsel failed to withdraw

the original subpoenas, and the deponents produced documents requested by the original

subpoenas beyond the agreed limited scope. Rickley contends the trial court applied

incorrect legal standards in denying her disqualification motion, and the evidence does

not support the court’s ruling. We conclude that the court properly denied the

disqualification motion.

                   FACTUAL AND PROCEDURAL BACKGROUND

         1.    Complaint

         Rickley filed a complaint against Mark B. Jamison in April 2012 alleging

a single count for dental malpractice. She alleges that Jamison, a dentist, negligently

examined, diagnosed, and treated her resulting in a serious infection impacting her

heart, a tooth extraction, and other injuries.1

         2.    Deposition Subpoenas, Correspondence, and New Subpoenas

         Jamison’s counsel served deposition subpoenas on the custodian of records for

Cedars Sinai Medical Center (Cedars) and Dr. Alice Cruz in August 2012. The

subpoenas requested all records relating to treatment or care of Rickley “regardless of

date.”

1
       We judicially notice Rickley’s complaint filed on April 4, 2012 (Evid. Code,
§ 452, subd. (d)), which Rickley failed to include in her appellant’s appendix.


                                              2
       Rickley’s counsel sent Jamison’s counsel an e-mail in August 2012 objecting to

the subpoenas as overbroad and invasive of her right to privacy. She asked counsel to

engage in a “meet and confer” to limit the scope of the subpoenas, immediately advise

the copy service not to copy any records, and ask the copy service to notify the

deponents that no records were due. Jamison’s counsel responded by offering to limit

the subpoenas to a five-year period preceding the dental treatment at issue. Jamison’s

counsel stated that if Rickey’s counsel agreed to such limitation, she would contact the

copy service “to amend the language in the subpoenas and new subpoenas will be issued

with a copy sent to you.”

       Rickley’s counsel responded that a five-year limit was reasonable, but the

subpoenas should also be limited to relevant medical records. She offered to obtain the

records herself with her client’s authorization to see whether the records requests could

be worded in a way so as to satisfy both parties’ concerns. She requested that Jamison’s

counsel “hold off on serving the Cedars and related subpoenas for some agreed upon

time.” Jamison’s counsel responded by e-mail:

       “For now, we agree to having you obtain the Cedars-Sinai records via

authorization and segregating out the records you believe to be confidential and

privileged on the basis of privacy. We obviously do not know what is contained in the

records so we would like you to work with us with regard to what is omitted and so

forth. I have asked Gail to put a hold on the subpoenas so that you may proceed with

the authorization, and we will reserve our right to move forward with the subpoenas if

for some reason we are not able to reach an agreement. . . . ”

                                            3
       Rickley did not move to quash the subpoenas. Her counsel apparently obtained

records from the deponents and provided them to Jamison’s counsel. Jamison’s counsel

served new deposition subpoenas on the same deponents in February 2013 requesting

all records relating to Rickley’s “heart and cardiac condition only” [capitalization

omitted], pursuant to the parties’ agreement. Rickley’s counsel requested a copy of any

records obtained by the copy service, but the copy service provided none, so she

assumed that no further documents were produced.

       3.     Records Production

       Jamison’s counsel apparently did not withdraw the original subpoenas. Cedars

and Dr. Cruz each produced Rickley’s entire medical file in or about March 2013,

including more than 10 years of records relating to matters not limited to her heart and

cardiac condition. Rickley’s counsel learned of the production in July 2013.

       4.     Ex Parte Application and Motion to Disqualify

       Rickley filed an ex parte application on July 29, 2013, and obtained an order

requiring Jamison, his counsel, his expert witnesses, and anyone else to whom they had

provided Rickley’s medical records to return within 24 hours all hard copies of such

records, destroy all digital or electronic versions of the records and all notes derived

from the records, and to not disclose the contents of the records. The order also

required the copy service to return such records to Rickley and destroy any digital or

electronic versions. The order stated that Jamison’s counsel must file within 48 hours

a declaration of compliance with the order. Jamison’s counsel failed to timely file such

a declaration and failed to timely return the hard copies to Rickley’s counsel.

                                             4
       Rickley filed a motion on August 1, 2013, to disqualify Jamison’s counsel and

expert witnesses and for monetary sanctions. She argued that Jamison’s counsel had

failed to withdraw the original subpoenas as agreed and instead obtained records

exceeding the scope of the agreement. She argued that Jamison’s counsel was obligated

to notify opposing counsel and stop reviewing and disseminating the records, but had

failed to do so. She also argued that Jamison’s counsel had failed to comply with the

ex parte order. She argued that disqualification was appropriate pursuant to Rico v.

Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 (Rico) and Clark v. Superior Court

(2011) 196 Cal.App.4th 37 (Clark) and that both Jamison’s counsel and expert

witnesses to whom the records had been provided should be disqualified and monetary

sanctions awarded.

       Jamison opposed the motion arguing that his counsel had limited the scope of the

subpoenas in accordance with the agreement and that the records were produced

pursuant to the new subpoenas rather than the original subpoenas. He argued that

Rickley had an opportunity to obtain copies of the records produced by the deponents

but failed to do so and failed to object to the production until July 2013. He also stated

that his counsel had returned the records received from Cedars and Dr. Cruz on July 26,

2013, and had asked the expert witnesses to whom the records had been provided to

discard them. Jamison argued that the cases cited by Rickley involving attorney-client

privilege and attorney work product were inapplicable and that there was no basis for

disqualification.



                                             5
       The trial court denied the disqualification motion on August 15, 2013. Its minute

order stated that Rico, supra, 42 Cal.4th 807, and Clark, supra, 196 Cal.App.4th 37,

both involved the disqualification of attorneys and retained experts who had

inadvertently viewed documents protected by the attorney-client privilege or attorney

work product, and that this case was distinguishable. It stated that Rickley failed to

show that Jamison had obtained an unfair advantage or that any of the information could

be used against her in this case. It also stated that the records were produced pursuant to

“a lawful subpoena” and were equally available to Rickley at the time of production,

and that Rickley had failed to cite any authority for disqualification in these

circumstances.2 Jamison’s counsel filed a declaration the following day stating that the

medical records in question had been either returned or destroyed.3

       Rickley timely appealed the order denying her disqualification motion.4

                                    CONTENTIONS

       Rickley contends (1) the trial court applied an incorrect legal standard by failing

to treat confidential medical records the same as records protected by the attorney-client


2
       We judicially notice the minute order filed on August 15, 2013 (Evid. Code,
§ 452, subd. (d)), which Rickley failed to include in her appellant’s appendix.
3
       We judicially notice the declaration of David J. Weiss filed on August 16, 2013.
(Evid. Code, § 452, subd. (d).)
4
       An order granting or dissolving an injunction, or refusing to grant or dissolve an
injunction, is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).) An order denying
a motion to disqualify counsel is appealable as an order refusing to grant an injunction.
(Meehan v. Hopps (1955) 45 Cal.2d 213, 215; Sharp v. Next Entertainment, Inc. (2008)
163 Cal.App.4th 410, 424, fn. 7.)


                                             6
privilege or attorney work product for purposes of disqualification, requiring her to

show that Jamison had gained an unfair advantage from the disclosure, and failing to

place the burden on Jamison to show lack of prejudice; (2) the evidence does not

support the denial of her disqualification motion; and (3) both defense counsel and

expert witnesses should be disqualified.

                                       DISCUSSION

       1.     Standard of Review

       We review the ruling on a motion to disqualify generally for abuse of discretion.

(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999)

20 Cal.4th 1135, 1143 (SpeeDee).) We defer to the court’s express or implied factual

findings if they are supported by substantial evidence. (In re Charlisse C. (2008)

45 Cal.4th 145, 159 (Charlisse); SpeeDee, supra, at p. 1143.) We independently review

the court’s legal conclusions. (Charlisse, supra, at p. 159.) The court’s application of

the law to the facts is reversible only if it is arbitrary and capricious. (Ibid.)

       “Motions to disqualify counsel are especially prone to tactical abuse because

disqualification imposes heavy burdens on both the clients and courts: clients are

deprived of their chosen counsel, litigation costs inevitably increase and delays

inevitably occur. As a result, these motions must be examined ‘carefully to ensure that

literalism does not deny the parties substantial justice.’ [Citation.]” (City of

Santa Barbara v. Superior Court (2004) 122 Cal.App.4th 17, 23.)

       2.     The Trial Court Applied the Correct Legal Standards



                                               7
       An attorney who obtains attorney-client privileged documents or attorney work

product disclosed through inadvertence has certain obligations. An attorney receiving

such materials must refrain from examining them any more than is necessary to

determine whether the materials are privileged or otherwise confidential and protected

from disclosure, and must immediately notify opposing counsel. (Rico, supra,

42 Cal.4th at pp. 817-818; State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th

644, 656.) This rule applies not only to materials protected by the attorney-client

privilege or attorney work product doctrine, but also to any “ ‘documents that are

plainly privileged and confidential, regardless of whether they are privileged under the

attorney-client privilege, the work product privilege, or any other similar doctrine that

would preclude discovery based on the confidential nature of the document.’ ” (Rico,

supra, at pp. 817-818, fn. 9.)

       Disqualification of an attorney who fails to comply with such obligations is not

automatic, but may be appropriate depending on the circumstances. (Rico, supra,

42 Cal.4th at p. 819; Clark, supra, 196 Cal.App.4th at p. 54.) Rico involved a plaintiff’s

attorney who obtained the notes of defense counsel through the inadvertence of

a deposition reporter. The notes were from a litigation strategy meeting between

defense counsel, defense experts, and client representatives. The plaintiff’s attorney

quickly realized the nature of the 12-page document, but he retained it, provided copies

to his co-counsel and experts, discussed it with his experts, and surreptitiously used it in

deposing experts for the opposing party. (Id. at pp. 811-812 & fn. 3.) Rico concluded



                                             8
that the document was attorney work product and that the plaintiff’s attorney had failed

to comply with his obligations stated above. (Id. at pp. 815, 817-819)

       Rico also held that the disqualification of the plaintiffs’ attorneys and experts was

not an abuse of discretion. (Rico, supra, 42 Cal.4th at pp. 813, 819.) Not only did the

attorney fail to comply with his obligations upon receiving the attorney work product,

but he also “ ‘acted unethically in making full use of the confidential document.’ ” (Id.

at p. 819, quoting the Court of Appeal opinion.) Rico stated, “The Court of Appeal

properly concluded that such use of the document undermined the defense experts’

opinions and placed defendants at a great disadvantage. Without disqualification of

plaintiffs’ counsel and their experts, the damage caused by Johnson’s use and

dissemination of the notes was irreversible.” (Ibid.)

       Clark, supra, 196 Cal.App.4th 37, involved a plaintiff’s attorney who obtained

from his client attorney-client privileged documents belonging to the defendant. The

plaintiff was formerly employed by the defendant and retained certain attorney-client

privileged documents after the termination of his employment, contrary to

a nondisclosure agreement. (Id. at pp. 42-43.) Clark concluded that the attorney had

failed to comply with his obligations to limit his review of the privileged documents and

immediately notify opposing counsel. (Id. at pp. 52-54.) Clark also held that the

disqualification of the attorney was proper. Clark stated that the evidence supported the

trial court’s conclusion that the attorney’s review of the privileged materials could affect

the outcome of the litigation, and held that disqualification was proper as a prophylactic



                                             9
measure to avoid future prejudice to the defendant and was not an abuse of discretion.

(Id. at p. 55.)

       Rickley contends the trial court erroneously concluded that the legal standards

for disqualification under Rico, supra, 42 Cal.4th 807, and Clark, supra,

196 Cal.App.4th 37, were inapplicable to confidential medical records. We disagree.

Rico and Clark held that the attorneys’ failure to comply with their obligations to limit

their review of confidential documents and immediately notify opposing counsel, and

the potential prejudice to the opposing party resulting from the attorneys’ use and

dissemination of the confidential documents, justified the disqualification of counsel.

Rico and Clark concluded that the attorneys’ use and dissemination of attorney-client

privileged documents and attorney work product in those circumstances could seriously

prejudice the opposing party. The trial court here concluded that Rickley failed to show

that the disclosure of her confidential medical records was likely to result in serious

prejudice. We conclude that this was proper. Rickley has shown no legal error and no

abuse of discretion in this regard.

       Rickley also contends the trial court erroneously required her to show that

Jamison had obtained an unfair advantage as a result of the disclosure, purportedly

requiring her to disclose the contents of her confidential medical records. The order

denying the disqualification motion stated in this regard, “Plaintiff failed to show that

anything in her medical records gives Defendant an unfair advantage in this case, or that

any of that information could possibly be used against her in the proceedings.” In our

view, the trial court properly considered the nature of the confidential documents and

                                            10
concluded that the disclosure of confidential medical records was unlikely to prejudice

Rickley so seriously as to justify the disqualification of counsel. Rickley has shown no

legal error or abuse of discretion in this regard.

         “Protecting the confidentiality of communications between attorney and client is

fundamental to our legal system. The attorney-client privilege is a hallmark of our

jurisprudence that furthers the public policy of ensuring ‘ “the right of every person to

freely and fully confer and confide in one having knowledge of the law, and skilled in

its practice, in order that the former may have adequate advice and a proper defense.”

[Citation.]’ [Citation.] To this end, a basic obligation of every attorney is ‘[t]o maintain

inviolate the confidence, and at every peril to himself or herself to preserve the secrets,

of his or her client.’ (Bus. & Prof. Code, § 6068, subd. (e).)” (SpeeDee, supra,

20 Cal.4th at p. 1146.) The disclosure of confidential medical records, however

regrettable and wrongful such disclosure may be in a particular case, generally does not

threaten core values fundamental to our legal system to such a degree.

         Rickley also cites Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324

(Adams) for the proposition that an attorney who violates his or her obligations relating

to the receipt of confidential documents should bear the burden of showing lack of

prejudice to the opposing party in order to avoid disqualification. Adams is not on

point.

         Adams, supra, 86 Cal.App.4th 1324, involved the disqualification of an attorney

whose former firm had represented a client in a matter substantially related to a current

lawsuit in which the attorney represented the same client. The attorney was not

                                             11
personally involved in his former firm’s representation of the client. (Id. at

pp. 1329-1330.) Adams concluded that the attorney’s knowledge of confidential

information, necessarily resulting in his disqualification, could not be presumed solely

from the attorney’s membership in his former firm. (Id. at p. 1337.) Instead, Adams

stated that a “modified version of the ‘substantial relationship’ test” applied.5 (Adams,

supra, at p. 1340.) Adams stated that the trial court must determine based on the

particular circumstances whether the attorney was reasonably likely to have obtained

confidential information relating to the current representation while working for his

former firm. (Id. at pp. 1340-1341.) Adams stated further, “in light of the paramount

importance of maintaining the inviolability of client confidences, where a substantial

relationship between the former firm’s representation of the client and the current

lawsuit has been shown . . . , the attorney whose disqualification is sought should carry

the burden of proving that he had no exposure to confidential information relevant to the

current action while he was a member of the former firm. [Citation.]” (Id. at

pp. 1340-1341.)

       The present action, in contrast, does not involve an attorney’s conflict of interest

arising from the successive representation of clients with potentially adverse interests or

the imputation of knowledge to an attorney based on his or her former membership in

a law firm. Adams, supra, 86 Cal.App.4th 1324, is not on point and does not support

5
       Disqualification generally is required in cases involving an attorney’s successive
representation of clients with potentially adverse interests if the former client
demonstrates a “substantial relationship” between the subjects of the prior
representation and the current representation. (Charlisse, supra, 45 Cal.4th at p. 161.)


                                            12
imposing the burden on defense counsel here to show a lack of prejudice in order to

avoid disqualification.

       3.     Substantial Evidence Supports the Denial of Disqualification

       Rickley contends there was no substantial evidence to support the denial of her

disqualification motion for three reasons. First, she argues that the evidence does not

support the trial court’s statement that the medical records were produced pursuant to

“a lawful subpoena.” Second, she argues that the evidence does not support the court’s

statement that the records produced were equally available to Rickley at the time of

production. Third, she argues that defense counsel failed to timely file a declaration of

compliance with the ex parte order as required by the order. She also argues that the

denial of her disqualification motion in these circumstances was unreasonable and an

abuse of discretion.

       Rickley has not shown that the trial court’s characterization of the deposition

subpoenas as “lawful” or its statement that the records were available to Rickley at the

time of production were of such importance to its ruling that any error in these regards

was prejudicial. We conclude that it was not. She also fails to show that the denial of

her disqualification motion was arbitrary and capricious in light of the circumstances.

We conclude that the evidence supports the denial of her disqualification motion as to

both defense counsel and experts and that she has shown no abuse of discretion.




                                            13
                                 DISPOSITION

    The order is affirmed. Jamison is entitled to recover his costs on appeal.



    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                            CROSKEY, Acting P. J.



WE CONCUR:




    KITCHING, J.




    ALDRICH, J.




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