NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

DETJEN, J.

Plaintiff Michael Holder filed a motion in the trial court requesting various sanctions, including disqualification of opposing counsel (the attorneys for defendant and respondent Turlock Unified School District) because their investigators contacted him without his attorney's consent. He appeals from the trial court's order denying his motion to disqualify counsel.

Plaintiff has failed to establish that opposing counsel acquired confidential information during the contact and has failed to establish that opposing counsel obtained a litigation advantage as a result of the contact. Accordingly, we conclude the trial court did not abuse its discretion in its ruling and affirm.1

FACTS AND PROCEDURAL HISTORY

The complaint alleges that while walking to a school bus stop on the morning of December 20, 2006, plaintiff's minor son, Justin Holder, was killed when he was struck by a car. The complaint, as relevant here, alleges that defendant designated an unsafe location for the bus stop thereby creating a dangerous condition that contributed to Justin's death.

In March 2008, four months after the action was filed, plaintiff was incarcerated at a branch jail in Merced. On March 5, 2008, two persons, Jack Able and Mari Cicinato, appeared at the jail and asked to see him. They signed-in on the attorney/investigator log sheet and met with plaintiff in an attorney interview room. Able and Cicinato were, in fact, private investigators hired by defendant's attorney, Bradley A. Post of the firm of Borton Petrini, LLP. According to Post, he hired Able to perform a criminal and civil background check on plaintiff. Able and Cicinato determined there were several persons with that name; one of them was in custody in Merced County. Post told Able "[s]pecifically to determine whether the Michael Holder in custody was in fact Michael Holder, the plaintiff, in this matter." Able said it was his decision to accomplish his assignment by going to the jail to see plaintiff in person. He invited Cicinato, who did not have a lot of experience in civil matters and had not been to that particular facility, to come along as a training experience.

What happened during that interview is disputed to some degree. In a declaration, plaintiff stated that he assumed the investigators were from his own attorney's office and he spoke to them "openly and candidly" on the assumption "that what I said was privileged, as it would be if I were speaking with my own attorney." Plaintiff further declared: "I remember that the investigators asked me about Justin, and the accident. I cannot remember what I told them about Justin, or the accident that killed him."

Able submitted an investigation report to Post explaining that he "conducted investigation into the whereabouts" of plaintiff. "In checking numerous local records the true identity of the Plaintiff could not be verified." Able "located a person with a similar name who was in custody in Merced County Jail." The jailers would not provide further information "without my physical presence and proper documentation being presented." Able went to the jail and was told that "a Michael Holder" was being held at the branch jail. Able went there "and met with him at the facility and immediately told him that if he was represented I could not discuss any case issues with him and that I was merely in search of his indentifying [sic] information." (Able's declaration does not state that he told either the jailers or plaintiff that he worked for an opposing party in the civil lawsuit. In his deposition, Able states only that he asked for Holder and showed his state-issued investigator's identification card. The trial court found that Able did not affirmatively misrepresent his role in the litigation.)

Able's report recounted the interview in the following terms: "At that time he advised that he was the Mr. Holder and Plaintiff in the civil action, I then verified this by asking his parents name and address which he provided. He stated he had lost his son in an accident and again I advised I could not discuss any case issues with him. [¶] I was able to verify his son's name and his estranged and current spouses identification and whereabouts. He also advised that he and his son have resided with his parent[]s `for always.' He then began to ask questions regarding this case and I again advised that we could not discuss the case and I was only there to identify him as a party because there were numerous Michael Holders in custody." (In subsequent depositions of Able and Cicinato, neither could remember any other information, including whether they took notes during the interview; plaintiff stated in his declaration that one of the investigators took notes, but that he could not remember which one.)

Although he could not remember what prompted the realization, plaintiff came to believe that the investigators were there on behalf of an opposing party. In his declaration, plaintiff stated that he then terminated the interview. He called his parents, who called his attorney.

While returning from the interview, Able, according to his report, received a message from his office that one of plaintiff's attorneys had called and "was very upset" that Able had met with plaintiff. The report continues: "Upon receiving the message I called [the attorney] and advised [him] of the circumstance and what had transpired. At that time [the attorney] advised that he understood and no problems would arise but requested I have no further contact with his client and I agreed." This conversation occurred while he was still driving back from the jail.

Able contacted Post to tell him about the attorney's complaint. He told Post the matter was resolved—meaning that Post did not need to contact plaintiff's attorneys.

In November 2008, plaintiff took Able's deposition; in December 2008 he took Cicinato's deposition; and in January 2009, plaintiff filed a motion seeking to strike defendant's answer to the complaint, to bar deposition of plaintiff, and to disqualify Post and his firm from representing defendant. After further discovery disputes (concerning telephone records for Able and Post, as well as a deposition of Post), the matter came for hearing on March 9, 2010. The court took the matter under submission.

By order filed May 3, 2010, the trial court denied the motion. The court concluded that the actions of defense counsel and his investigators violated California Rules of Professional Conduct, rule 2-100, which states: "While representing a client, a member [of the State Bar of California] shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer." The court concluded, however, that plaintiff had not established "at least ... at this point," that the attorney for defendant learned anything in the interview that "will have a continuing detrimental effect on the proceedings." "If defense counsel tries [to] use information that only could have been garnered as a result of the investigators' meeting with plaintiff at some future date, then plaintiff could renew the motion to disqualify."

Plaintiff appealed.

DISCUSSION

Plaintiff's primary contention on appeal is that disqualification of counsel is "automatic" whenever confidential information is obtained by a litigation adversary. That is the standard for disqualification in cases where an attorney has a conflict of interest because of simultaneous representation of parties with opposing interests. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 284 (attorney); Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 705 (attorney); People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1139, 1147, 1156 ("of counsel" attorney).)

There is a different, though equally well-established, standard for disqualification in cases in which an attorney has had contact with an opposing party who is represented by counsel, without permission from that party's counsel. The standard in those cases is whether disqualification of counsel is necessary to prevent a litigation advantage to one party, that is, to remedy any "improper effect the attorney's misconduct may have had in the case" before the court. (Myerchin v. Family Benefits, Inc. (2008) 162 Cal.App.4th 1526, 1538; see Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 819 (Rico); Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 134; Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 603-604.) These cases all emphasize that the trial court's goal is not to punish the attorney for ethical transgressions—attorney discipline is entrusted to the State Bar of California. Instead, the goal of the trial court is to take steps necessary to permit the litigation to continue on a level playing field. Thus, the cases focus on whether the impermissible contact actually resulted in the receipt of confidential information by the opposing attorney (Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1078, 1084-1088 (Shadow Traffic ); see Chronometrics, Inc. v. Sysgen, Inc., supra, 110 Cal.App.3d at p. 603 (information received related to a "subject of controversy"), or whether the contact resulted in an unfair settlement or other unfair advantage in the case. (See Myerchin v. Family Benefits, Inc., supra, 162 Cal.App.4th at p. 1538.)

Even in the most egregious related case we have discovered, a disqualification order was affirmed, not because of the egregiousness of the ethical breach, but because of the unfair advantage conferred by the breach. Thus, in Rico, supra, 42 Cal.4th at pages 811-812, plaintiff's attorney obtained a 12-page summary and evaluation of the case prepared by defendant's counsel. Plaintiff's attorney, even after recognizing that the summary was confidential work product inadvertently disclosed by defendant, copied and distributed the summary to his cocounsel and his own experts. (Id. at p. 812.) Counsel then used the summary, with devastating effect, in deposing defendant's expert. (Id. at p. 813.) The Supreme Court "easily" concluded plaintiff's attorney had acted unethically and impermissibly had used privileged materials. (Id. at p. 819.) Even under these extreme conditions, however, disqualification was not automatic. Mere exposure to opposing counsel's work product, standing alone, is not enough to support disqualification of the offending attorney. (Ibid.) The particular use made of the document, however, "placed defendants at a great disadvantage. Without disqualification of plaintiffs' counsel and their experts, the damage caused by [the attorney's] use and dissemination of the [summary] was irreversible. Under the circumstances presented in this case, the trial court did not abuse its discretion by ordering disqualification ...." (Ibid.)

Accordingly, and pursuant to well-established law, we reject plaintiff's contention that if Able's contact is deemed to have resulted in Post's receipt of confidential information, Post and his firm must automatically be disqualified from representation of defendant. Even in those circumstances, the trial court is entitled to exercise its discretion to determine that the confidences were insignificant or that receipt by opposing counsel could be cured by some means other than disqualification.

In this case, the trial court concluded that Able asked questions of plaintiff about his son and the accident, which were "the subject[s] of the representation." The trial court, however, denied the motion to disqualify the attorneys for defendant due to plaintiff's lack of recollection about any detailed information revealed to Able and the lack of evidence to establish such information was transmitted to Post.

Plaintiff recognizes that he has not proven that confidential information was conveyed, but contends that case law establishes a presumption that it was. He contends defendant therefore had the burden to prove plaintiff did not convey confidential information to Able. He relies on Shadow Traffic, supra, 24 Cal.App.4th at page 1085, for this presumption; Shadow Traffic, in turn, adopted the presumption from In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 596.

The presumption in those cases, however, was not that the employee had received confidential information—there was separate affirmative evidence of that fact—but, instead, the presumption was that the employee had conveyed the information to his or her new employer. (See Shadow Traffic, supra, 24 Cal.App.4th at p. 1085.) In the present case, by contrast, the preliminary issue was not whether Able had passed along any information to Post, but whether Able had garnered any confidential information in the first instance.

Plaintiff here wholly failed to establish that confidential information was given to Able, even though plaintiff clearly was in a position to submit such proof if it had, indeed, been conveyed. After all, plaintiff thought the visit from Able was unusual enough that he alerted his parents, who alerted plaintiff's attorney. If either plaintiff or his attorney thought anything of a confidential nature had been disclosed to Able, it is reasonable to assume plaintiff would have remembered it at least long enough for his attorney to document the matter. Instead, plaintiff only recalled that Able asked him about his son and about the accident. Plaintiff's declaration merely stated: "I cannot remember what I told them about Justin, or the accident that killed him." This is insufficient to establish that Able learned confidential information. The fact that the accident victim was plaintiff's son and the fact that the victim was killed in a traffic accident were not confidential facts—they were facts publicly alleged in the complaint.

The burden of proof on the disqualification motion was initially on plaintiff, as the moving party, to establish the facts entitling him to relief. (Evid. Code, § 500.) The plaintiff did not meet that burden.

It is conceivable, though hardly likely in the circumstances we have recounted (i.e., that plaintiff made disclosures of confidential information that he did not remember making even a short time later), that Able remembered what plaintiff had forgotten and had, despite his denials, conveyed the confidential information to Post. The trial court recognized this possibility, and expressly reserved to plaintiff the right to renew the disqualification motion if such information emerged at some point in the case.

On the state of the record before the trial court and before this court, however, plaintiff has not established that disqualification of opposing counsel is necessary to prevent an unfair litigation advantage to defendant since plaintiff has not established that defendant likely received confidential information. The trial court did not abuse its discretion in denying the motion.

Plaintiff's secondary contention on appeal is that defendant's vigorous—or, as plaintiff would phrase it, obstructionist—opposition to plaintiff's effort to discover whether there were grounds for disqualification provided a separate basis for disqualification. It is unclear what the thrust of this argument is. In his opening brief, plaintiff appears to argue that disqualification should occur because such obstructionism is unethical. In his reply brief, plaintiff seems to argue that disqualification should occur because the alleged obstructionism precluded him from knowing the "extent of the breach" of his attorney's relationship with him. In oral argument, plaintiff stated that such obstructionism somehow affected the "continuing effect" the improper contact had on the litigation. As previously stated, the ethical transgression alone is insufficient to support a disqualification order, plaintiff has failed to establish any confidential information was disclosed to Able, and plaintiff has failed to establish the disclosure (if any) had any effect or "continuing effect" on the litigation playing field. The complained of behavior cannot affect a situation that has not been shown to exist in the first place.

DISPOSITION

The order denying the motion for disqualification of counsel is affirmed. This court's order of September 9, 2010, granting appellant's petition for writ of supersedeas is dissolved. Defendant (respondent) is awarded its costs on appeal.

WE CONCUR:

CORNELL, Acting P.J.

FRANSON, J.