                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 06 2011

                                                                        MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



MATTEL, INC., a Delaware                         No. 10-57048
corporation,
                                                 D.C. No. 2:04-cv-09049-DOC-
       Defendant-counter-claimant -              RNB
       Appellee,

  v.                                             MEMORANDUM *

MGA ENTERTAINMENT, INC.; MGA
ENTERTAINMENT (HK) LIMITED, a
Hong Kong Special Administrative
Region business entity; MGAE DE
MEXICO, S.R.L. DE C.V., a Mexico
business entity; ISAAC LARIAN, an
individual,

     Counter-defendants - Appellants.
__________________________________

CARTER BRYANT, an individual,

       Plaintiff-counter-defendant,

CARLOS GUSTAVO MACHADO
GOMEZ, an individual,

       Counter-defendant.



       *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                               page 2

MGA ENTERTAINMENT, INC.; MGA                    No. 10-80235
ENTERTAINMENT (HK) LIMITED, a
Hong Kong Special Administrative                D.C. No. 2:04-cv-09049-DOC-
Region business entity; MGAE DE                 RNB
MEXICO, S.R.L. DE C.V., a Mexico
business entity; ISAAC LARIAN, an
individual,

       Plaintiffs - Petitioners,

  v.

MATTEL, INC., a Delaware
corporation,

       Defendant - Respondent.



Before:      KOZINSKI, Chief Judge, TROTT and WARDLAW, Circuit
             Judges.


       1. We lack jurisdiction to consider MGA’s interlocutory appeal of the

district court’s disqualification order. See 28 U.S.C. § 1292(b); Couch v.

Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010); Cole v. U.S. Dist. Ct., 366 F.3d

813, 817–18 n.4 (9th Cir. 2004). Nor do we have jurisdiction under the collateral

order doctrine. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440 (1985).


       2. We deny MGA’s petition for a writ of mandamus. See Plata v.

Schwarzenegger, 560 F.3d 976, 983 (9th Cir. 2009) (listing factors to consider).
                                                                                 page 3

Most importantly here, the district court’s disqualification order was not “clearly

erroneous as a matter of law.” Id. Timesheets show that Ms. Basinger previously

represented Mattel in this case, and her supervising attorney declared under penalty

of perjury that he shared trial strategies and other confidential information with

her. Ms. Basinger says she can’t remember working on the case, but doesn’t

dispute the evidence to the contrary. In these circumstances, disqualification may

indeed have been mandatory under California law. Here’s how the Second District

Court of Appeal recently put it in Kirk v. First American Title Insurance Co.:

             [V]icarious disqualification should be automatic in cases
             of a tainted attorney possessing actual confidential
             information from a representation, who switches sides in
             the same case . . . . [W]hen a tainted attorney moves
             from one private law firm to another, the law gives rise to
             a rebuttable presumption of imputed knowledge to the
             law firm, which may be rebutted by evidence of effective
             ethical screening. However, if the tainted attorney was
             actually involved in the representation of the first client,
             and switches sides in the same case, no amount of
             screening will be sufficient, and the presumption of
             imputed knowledge is conclusive.

108 Cal. Rptr. 3d 620, 637, 649 (Cal. Ct. App. 2010) (Croskey, J.).

      This squares with Henriksen v. Great American Savings & Loan, 11 Cal.

App. 4th 109 (Cal. Ct. App. 1992). There the Court of Appeal addressed “whether

a law firm may continue to represent a client where during the pendency of
                                                                                   page 4

litigation it hires an associate who formerly represented the adverse party in the

same proceeding.” Id. at 111. It held that “the associate’s disqualification results

in the vicarious disqualification of the entire law firm . . . . even if the law firm

takes measures to insulate the new associate from any involvement in the current

litigation.” Id. The court summarized the rule it found “to be quite clear cut in

California: where an attorney is disqualified because he formerly represented and

therefore possesses confidential information regarding the adverse party in the

current litigation, vicarious disqualification of the entire firm is compelled as a

matter of law.” Id. at 117.

       What is left unclear is whether the absolute vicarious disqualification rule

applies even where the representation of the first client was brief and fairly minor,

and the lawyer who switches firms is insulated from the litigation team working for

the second client by an ethical wall—as in our case. See Kirk, 108 Cal. Rptr. 3d at

637 n.20. Given the uncertainty as to the status of California law on this subject,

the district court wouldn’t have been clearly erroneous, whichever course it

adopted on the disqualification motion.

       Nor do we see any clear abuse of discretion in the court’s denial of a

continuance on the eve of trial. See Danjaq LLC v. Sony Corp., 263 F.3d 942, 961
                                                                           page 5

(9th Cir. 2001). None of the circumstances in this case persuade us that mandamus

relief is appropriate. See Plata, 560 F.3d at 983.


      3. MGA’s motion to stay the trial is denied as moot.


      Appeal DISMISSED. Petition for writ of mandamus DENIED.
