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Case Number: PTR-05-287341
Filing Date: Mar-20-2007 1:58
Juke Box: 001 Image: 01715611
GENERIC PROBATE PLEADING
RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS/CONSOLIDATED WI
001P01715611
Instructions:
0 Please place this sheet on top of the document to be scanned.c
GEORGE KING (SBN 028951)
MICHAEL G. ZATKIN (SBN 209494)
KING, KING & FISHLEDER, A Professional Corporation
The 555 City Center Building
555 Twelfth Street, Suite 1440
Oakland, California 94607
Telephone: (510) 844-3400
Facsimile: (310) 444-3401—— -
Attomeys for Respondent
EVA KNOTT
fF
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ff
rT wT
K I You ED
San Francisco County Superior Court
MAR 2.6 200¢
«const UMA sar 0
’ Hdl
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
IN RE REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND
WILL DATED NOVEMBER 2, 2004,
CAROL MITCHELL,
: Petitioner,
vs.
EVA KNOTT, Trustee and Beneficiary
under the REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary and
NATALIE FERRERO, a minor and a will
and trust beneficiary,
Respondents.
~ ESTATE OF:
CHARLES ACTIS
Decedent.
CAROL MITCHELL,
Contestant,
VS.
EVA KNOTT,
Respondent.
CASE NO. = PTR-05-287341
Related Case: PES-05-287457
JOINDER OF RESPONDENT EVA
KNOTT TO SAN FRANCISCO ADULT
PROTECTIVE SERVICES’ MOTION TO
QUASH TRIAL SUBPOENAS AND
SUBPOENAS DUCES TECUM FOR DR.
ABRAHAM NIEVOD AND CARRIE
WONG AND MOTION FOR
PROTECTIVE ORDER; AND MOTION
TO DISQUALIFY COUNSEL
April 10,2007
Time: 9:30 a.m.
Dept: 206
Trial Date: April 9, 2007
Dates
ORIGINAL
JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH
TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSELc €
Respondent Eva Knott hereby does join with the City of San Francisco in its Motion to
Quash Trial Subpoenas and Subpoenas Duces Tecum for Dr. Abraham Nievod and Carrie Wong
and Motion for Protective Order, and additionally moves this court for an order disqualifying the
jaw firm of Speilman & Mitchell, as a result of Petitioner’s counsel obtaining and repeatedly
seeking to introduce and disclose, reports and information which are confidential and privileged
under the Welfare & Institutions Code.
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION
Respondent Eva Knott hereby incorporates by reference the Memorandum of Points and
Authorities filed by the City of San Francisco Adult Protective Services in support of its motion
to quash the trial subpoenas and subpoenas duces tecum for Dr. Abraham Nievod and Carrie
Wong and motion for protective order. Welfare & Institutions Code §§ 15633, 15633(a),
15633(b), 10850(a) 10850(b) and 15600(i) make clear that Petitioner has sought and is seeking
records and testimony that are confidential and privileged and that the violations of said
provisions is punishable by a misdemeanor.
In addition, Respondent hereby moves, pursuant to C.C.P. § 128(a)(5), to disqualify the
law firm of Speflman & Mitchell from representing Petitioner in this case, on the grounds that
Robert B. Mitchell is in the possession of confidential and privileged information and reports and
(1) has repeatedly disseminated said confidential information, including the report of Dr.
Abraham Nievod, with the full knowledge that said information was confidential and privileged
and barred from disclosure and (2) has repeatedly demonstrated his intent to introduce said
confidential and privileged information at trial, notwithstanding prior court orders and
proceedings deeming said information confidential and privileged.
I. STATEMENT OF FACTS RELEVANT TO THE MOTION
On September 2, 2005 Commissioner Everett A. Hewlett, Jr. denied Petitioner Carol
Mitchell’s Motion for an Order to Produce “Confidential” Records and Permit the Taking of
Depositions of Holders of “Confidential Information.” Specifically, Petitioner had sought alt
documents of (1) San Francisco County Adult Protective Services, (2) Dr. Abraham Nievod, and
JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH
TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSEL€ C
(3) San Francisco County’s Public Guardian, which in any way related to Charles Actis.
Petitioner also had sought to depose Dr. Nievod and other agents or employees of San Francisco
County Adult Protective Services, including Carrie Wong. (Declaration of George King [“King
Dec!.”] ¥ 2.) /
Notwithstanding the court’s denial of Petitioner’s motion to obtain the information and
testimony on the grounds that said reports and information were confidential and privileged, on
August 28, 2006 Petitioner filed a Motion for Summary Adjudication of Issues, and attached
thereto a portion of the confidential Psychological Evaluation of Charles Actis report prepared by
Dr. Nievod. (King Decl 3.)
This Court has previously denied a Petition for Conservatorship of the Person and
Estate of Charles Actis, on April 19, 2005. The confidential report of Dr. Nievod was offered
and considered by this Court, along with the witnesses who are the subject of the instant motion.
(King Decl. 14.)
On February 16, 2007 Petitioner presented her Expert Witness List, naming Dr. Martin
Blinder, Dr. Abraham Nievod, Carrie Wong and Shauna Gillespie Ford, all of whom are either
employees or agents of San Francisco Adult Protective Services, and in possession of
“confidential” reports which are part of their file. (King Decl. ] 5.)
As part of the exchange of Expert Witness Lists, Petitioner’s attomey attached a copy of
the report of Dr. Martin Blinder. Petitioner unlawfully disclosed Dr. Nievod’s report to
Dr. Blinder, as evidenced by Dr. Blinder’s report, which refers to and quotes verbatim from
Dr. Nievod’s report. Dr. Blinder based a substantial portion of his report on the reports of
Dr. Nievod and others which are “confidential.” (King Decl. 6.)'
A hearing on the City of San Francisco’s motion to exclude the testimony of Dr. Blinder
and Dr. Charles Vella is pending before this court and is scheduled for March 21*, 2007 before
Commissioner Hewlett, Jr. (King Decl. 4 7.) Unbeknown to this office until receiving a copy of
' Petitioner has not attached a copy of either Dr, Blinder’s report or Dr. Nievod’s report to this motion, since the
disclosure of such information is a misdemeanor under Welfare & Institutions Code section 15633. (See City of San
Francisco's Motion to Quash Trial Subpoenas of Dr. Abraham Nievod and Carrie Wong.)
JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH
TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSEL© C
the City’s motion on March 15, 2007, Petitioner has issued trial subpoenas for Dr. Abraham
Nievod, Carrie Wong and Shauna Gillespie-Ford. (King Decl. { 8.)
1 LEGAL ARGUMENT
A Petitioner’s Counsel's Illicit Reception and Repeated Routine Disclosure
oe aed Co; fal and Privitcecd Under the ‘Welfare &
Institutions Code is a Misdemeanor,
In denying Petitioner’s motion to obtain the deposition testimony and reports of Dr.
Abraham Nievod, Carrie Wong and other confidential information and reports contained in the
APS file concerning Charles Actis, this court affirmed the well established principle that the
testimony and documents relating to the contents of an APS investigation case file are
confidential and cannot be disclosed to the public. ,
For the reasons detailed in the City of San Francisco Adult Protective Services motion to
quash the trial subpoenas of Dr. Nievod and Carrie Wong (which Respondent hereby joins and
incorporates herein by reference), a violation of the confidentiality provisions barring the
disclosure of information concerning an Adult Protective Services investigation is a
misdemeanor punishable by not more than six months in the county jail, by a fine of five hundred
dollars, or by both the fine and imprisonment. (Welf. & Inst. Code §15633(a).)
Dr. Nievod’s confidential report was requested as part of Petitioner’s request to defend
the conservatorship. The report was never made part of the public record, unless by Petitioner
herself, by Petitioner’s counsel improperly attaching the report to various motions and filing it
with the court. In any case, Petitioner’s repeated disclosure of the contents of Dr. Nievod’s
report (in her motion for summary adjudication, in her Mandatory Settlement Conference
Statement and to her expert witness Dr. Blinder) is improper under the Welfare & Institutions
Code, and subjects Petitioner’s counsel to a five hundred dollar fine and/or up to six months
imprisonment, Counsel’s disclosure of said confidential information is even more egregious in
light of this court’s denial, in September, 2005, of Petitioner’s motion to obtain the confidential
and privileged information in the first place.
i
HT
JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH
TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSELe €
B. Petitioner's Counsel’s Disclosure of Information Deemed Confidential and
Privileged Under the Welfare & Institutions Code Subjects B
Mitchell and the Law Firm of Spellman and Mitchell to Disqualification
Under C.C.P, § 128(a)(5).
Attomey Robert B. Mitchell’s repeated disclosure of the contents of the APS
investigation f file, his repeated attempts to obtain further confidential and privileged testimony
and information, and Petitioner’s reliance on the contents of said file to attempt to prove her case
at trial, subjects the law firm of Spellman & Mitchell to disqualification under section 128(a5)
of the Code of Civil Procedure. C.C.P. section 128(a)(5) provides that every court shall have the
power to “control in furtherance of justice, the conduct of its ministerial officers, and of all other
persons in any manner connected with a judicial proceeding before it, in every matter pertaining
thereto.”
The California Supreme Court recently noted that “the authority of a trial court ‘to
disqualify an attorney derives from the power inherent in every court ‘[t]o contro! in furtherance
of justice, the conduct of its ministerial officers.” City and County of San Francisco v. Cobra
Solutions, Inc. (2006) 38 Cal.4th 839, 846, citing People ex rel. Dept. of Corporations v.
SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145, quoting Code Civ. Proc.,
§ 128, subd. (a)(5).) “Ultimately, disqualification motions involve a conflict between the clients’
right to counsel of their choice and the need to maintain ethical standards of professional
responsibility.’ Jd. As we have explained, however, ‘[t]he paramount concem must be to
preserve public trust in the scrupulous administration of, ‘justice and the integrity of the bar.” Id.
Although the law places great emphasis on the importance of a client's ability to retain the
attorney of his or her choice, on occasion this interest must yield to the even more important
public policy of maintaining the integrity of the judicial process. Gilbert y. National Corp. for
Housing Partnerships (1999) 71 Cal.App.4th 1240, 1254.
Much of the case law concerning attorney disqualification concerns instances where an
attorney was disqualified as a result of having obtained confidential information from a former
client in connection with the attomey’s subsequent representation of a new client adverse to the
former client. However, an attomey’s receipt of confidential information from a non-client may
also lead to the attorney's disqualification. See Morrison Knudsen Corp. v. Hancock, Rothert &
JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH
TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSELc - €
Bunshoft (1999) 69 Cal.App4th 223, 232-233, citing William H. Raley, Co. v. Superior Court,
(1983), 149 Cal.App.3d 1042,1049 as “persuasive authority for the general proposition that an
attomey's receipt of confidential information from a nonclient may lead to the attorney's
disqualification.”
“Ih fact, standing arises from a breach of the duty of confidentiality awed to the
complaining party, regardless of whether a lawyer-client relationship existed. Thus, for example,
a lawyer may be disqualified after improper contacts with an opposing party's expert witness (see
County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 658), or even for obtaining
confidential information from an opposing party’s prospective expert witness, See Shadow
Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067 (entire firm disqualified after
exchange of expert witness lists as a result of the presumption that defendant’s attorneys might
have obtained confidential communications and privileged information).
In the instant case, the duty of confidentiality repeatedly and flagrantly breached by
Petitioner’s counsel was owed to all parties to this motion, including to the City of San
Francisco, and more importantly, to this Court. Adult Protective Services has intervened three
times in this case in an attempt to prevent Petitioner’s counsel from obtaining and utilizing
confidential and privileged testimony and information. In denying Petitioner’s motion to obtain
discovery in September, 2005, this Court itself ruled that the report of Dr. Nievod and the
testimony of Dr. Nievod, Carrie Wong, and any other agent or employee of APS was confidential
end privileged. Moreover, the complete APS file was properly considered at an earlier
proceeding, in which this Court in April 2005, found Charles Actis competent to manage his own
affairs, and issued an order denying the conservatorship of Mr. Actis, Petitioner in the instant
case nonetheless continues to disclose confidential information in an effort to overturn this
Court's ruling in the conservatorship proceedings.
More importantly for purposes of this motion, Petitioner seeks to introduce confidential
and privileged information and testimony at trial. Ifthe status or misconduct which is urged as a
ground for disqualification of an attomey will have a continuing effect on the judicial
proceedings which are before the court, it is justified in refusing to permit the lawyer to
JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASI
TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSELc €
participate in such proceedings. Koo v, Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719,
734, Since Petitioner’s law firm is improperly in possession of certain confidential materials,
and secks to use said materials at trial regardless of prior court orders, there can be little doubt
that attorney Mitchell's misconduct in obtaining and disclosing the confidential information will
have an effect on the judicial proceedings before the court, Respondent will obviously be
prejudiced by the introduction of confidential APS testimony and reports at trial, when she had
no opportunity to depose any APS agents or employees, including Dr. Nievod prior to trial.
Petitioner’s counsel’s demonstrated intention to introduce confidential information at trial
regardless of court orders precluding such disclosure, makes disqualification the proper remedy
for Mr. Mitchell’s past and contemplated future misconduct.
Prior court orders deeming the Nievod report and other contents of the APS file
confidential have been utterly ineffective in preventing Mr. Mitchell from obtaining and
disclosing confidential and privileged information. Only by disqualifying Spellman & Mitchell
from representing Petitioner can the court preserve the integrity of the judicial process and thus
preclude the further misuse and disclosure of confidential information and reports which this
court has previously deemed privileged and exempt from disclosure.
c. The Motion to Disqualify is Timel
Although the trial of this matter is set for April 9, 2007, this motion to disqualify is timely
as it is not the result of any unreasonably delay by Respondent. Respondent only learned on
February 17, 2007, after reviewing the report of Dr. Martin Blinder attached to Petitioner’s
Expert Witness List, that Petitioner had disclosed contents of the confidential APS file, including
Dr. Nievod’s report, to Petitioner’s expert, Dr. Blinder. Respondent only learned on March 15,
2007 that notwithstanding this Court’s September, 2005 order specifically barring Dr. Nievod
from providing testimony in this case, Petitioner had subpoenaed Dr. Nievod to testify at trial,
Since the motion is not the result of unreasonable delay, and the only hardship possibly
faced by Petitioner if the motion is granted is that she will have to retain new counsel who is not
in possession of, and does not seek to introduce, confidential and privileged information, this
motion to disqualify counsel is timely. See Jn re Complex Asbestos Litigation (1991) 232
JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO’S MOTION TO QUASH
TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSEL€ C
Cal.App.3d 572, 599-600 (opposing counsel's delay until eve of trial before moving to disqualify
opposing law firm did not justify denying otherwise meritorious motion, where firm subject to
disqualification failed to show that delay caused any prejudice much less extreme prejudice; cited
new counsel was not type of prejudice contemplated).
Il. CONCLUSION
For the foregoing reasons, Respondent Eva Knott hereby joins in the motion of San
Francisco Adult Protective Services to Quash the Trial Subpoenas and Subpoenas Duces Tecum
of Dr. Abraham Nievod and Carrie Wong, and for Protective Order, and hereby respectfully
requests that this Court grant the motion to disqualify Petitioner’s counsel.
Se & FISHLEDER
DATED: March 19, 2007 By: Aes
George King oS
Attorneys for Respondent EVA V. KNOTT
JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH
TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSEL€ €
PROOF OF SERVICE
Re: In Re Revocable Living Trust Agreement of Charles Actis
San Francisco County Superior Court Case No. PTR-05-287341
San Francisco County Superior Court Case No, PES-05-287457
1, AL GARCIA, declare:
___ lam employed in the City of Oakland, County of Alameda, State of California. My
business address is 555 Twelfth Street, Suite 1440, Oakland, California 94607-4046. I am over
the age of 18 years and not a party to the foregoing action.
On March 19, 2007, I served a copy of the following documents on the interested parties
in said action:
1, JOINDER OF RESPONDENT EVA KNOTT TO SAN FRANCISCO ADULT.
PROTECTIVE SERVICES’ MOTION TO QUASH TRIAL SUBPOENAS AND
SUBPOENAS DUCES TECUM FOR DR. ABRAHAM NIEVOD AND CARRIE
WONG AND MOTION FOR PROTECTIVE ORDER; AND MOTION TO
DISQUALIFY COUNSEL; and
2. DECLARATION OF GEORGE KING IN SUPPORT OF JOINDER TO
MOTION TO QUASH TRIAL SUBPOENAS DUCES TECUM FOR DR.
ABRAHAM NIEVOD AND CARRIE WONG AND MOTION TO
DISQUALIFY PETITIONER'S COUNSEL,
by placing a true copy thereof enclosed in a sealed
envelope in a designated area for outgoing mail,
X | VIAU.S. MAIL addressed as set forth below. At King, King &
Fishleder, mail placed in that designated area is given
the correct amount of postage and is deposited that
same day, in the ordinary course of business, in a
United States mailbox in the City of Oakland,
California.
by depositing a true copy thereof in a collection box or by having
VIA UPS OVERNIGHT the sealed packet picked up by United Parcel Service, with
DELIVERY charges thereon fully prepaid, at Oakland, California, and
addressed as set forth below.
by having a messenger service who is a non-interested party
VIA HAND DELIVERY employed by the law firm of King, King & Fishleder, deliver a true
copy thereof to the firm/person listed befow.
by transmitting said document(s) from our office facsimile machine
(510) 444-3401, to a facsimile machine number(s) shown below.
X= s| VIA FACSIMILE Following transmission, | received a “Transmission Report" from
our fax machine indicating that the transmission had been
transmitted without error. After faxing, a copy was forwarded via
U.S. Mail.
PROOF OF SERVICE©
1 ]| Addressed as follows:
foregoing is true and correct and
Robert B. Mitchell, Esq.
Spellman & Mitchell
1850 Mt, Diablo Blvd., Suite 670
Walnut Creek, CA 94596-4407
Telephone: (925) 938-5880
Facsimite:~ (925) 938-5880
Emest F. Der, Esq.
Skootsky & Der LLP
90 New Montgomery Street, Suite 905
San Francisco, CA 94105
Telephone: (415) 979-9800
Facsimile: (415) 979-9821
Caroline K. Hinshaw, Esq.
Bryan*Hinshaw
425 California Street, Suite 900
San Francisco, CA 94104
Telephone: (415) 295-0800
Facsimile: (415) 295-0812
Terence J. Howzell, Esq.
Office of the City Attorney
1390 Market Street, 5" Floor
San Francisco, CA 94102
Telephone: (415) 554-3960
Facsimile: (415) 557-6747
I declare under penalty of perjury and the laws of the State of California that the
17 | Oakland, California.
PROOF OF SERVICE
AIG
at this declaration was executed on March 19, 2007, at
Preview
in San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Mar-21-2007 1:59 pm Case Number: PTR-05-287341 Filing Date: Mar-20-2007 1:58 Juke Box: 001 Image: 01715611 GENERIC PROBATE PLEADING RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS/CONSOLIDATED WI 001P01715611 Instructions: 0 Please place this sheet on top of the document to be scanned.c GEORGE KING (SBN 028951) MICHAEL G. ZATKIN (SBN 209494) KING, KING & FISHLEDER, A Professional Corporation The 555 City Center Building 555 Twelfth Street, Suite 1440 Oakland, California 94607 Telephone: (510) 844-3400 Facsimile: (310) 444-3401—— - Attomeys for Respondent EVA KNOTT fF 4] ff rT wT K I You ED San Francisco County Superior Court MAR 2.6 200¢ «const UMA sar 0 ’ Hdl IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 2, 2004, AND WILL DATED NOVEMBER 2, 2004, CAROL MITCHELL, : Petitioner, vs. EVA KNOTT, Trustee and Beneficiary under the REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED 11/2/04, NICHOLAS FERRERO, a minor and a will and trust beneficiary and NATALIE FERRERO, a minor and a will and trust beneficiary, Respondents. ~ ESTATE OF: CHARLES ACTIS Decedent. CAROL MITCHELL, Contestant, VS. EVA KNOTT, Respondent. CASE NO. = PTR-05-287341 Related Case: PES-05-287457 JOINDER OF RESPONDENT EVA KNOTT TO SAN FRANCISCO ADULT PROTECTIVE SERVICES’ MOTION TO QUASH TRIAL SUBPOENAS AND SUBPOENAS DUCES TECUM FOR DR. ABRAHAM NIEVOD AND CARRIE WONG AND MOTION FOR PROTECTIVE ORDER; AND MOTION TO DISQUALIFY COUNSEL April 10,2007 Time: 9:30 a.m. Dept: 206 Trial Date: April 9, 2007 Dates ORIGINAL JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSELc € Respondent Eva Knott hereby does join with the City of San Francisco in its Motion to Quash Trial Subpoenas and Subpoenas Duces Tecum for Dr. Abraham Nievod and Carrie Wong and Motion for Protective Order, and additionally moves this court for an order disqualifying the jaw firm of Speilman & Mitchell, as a result of Petitioner’s counsel obtaining and repeatedly seeking to introduce and disclose, reports and information which are confidential and privileged under the Welfare & Institutions Code. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION Respondent Eva Knott hereby incorporates by reference the Memorandum of Points and Authorities filed by the City of San Francisco Adult Protective Services in support of its motion to quash the trial subpoenas and subpoenas duces tecum for Dr. Abraham Nievod and Carrie Wong and motion for protective order. Welfare & Institutions Code §§ 15633, 15633(a), 15633(b), 10850(a) 10850(b) and 15600(i) make clear that Petitioner has sought and is seeking records and testimony that are confidential and privileged and that the violations of said provisions is punishable by a misdemeanor. In addition, Respondent hereby moves, pursuant to C.C.P. § 128(a)(5), to disqualify the law firm of Speflman & Mitchell from representing Petitioner in this case, on the grounds that Robert B. Mitchell is in the possession of confidential and privileged information and reports and (1) has repeatedly disseminated said confidential information, including the report of Dr. Abraham Nievod, with the full knowledge that said information was confidential and privileged and barred from disclosure and (2) has repeatedly demonstrated his intent to introduce said confidential and privileged information at trial, notwithstanding prior court orders and proceedings deeming said information confidential and privileged. I. STATEMENT OF FACTS RELEVANT TO THE MOTION On September 2, 2005 Commissioner Everett A. Hewlett, Jr. denied Petitioner Carol Mitchell’s Motion for an Order to Produce “Confidential” Records and Permit the Taking of Depositions of Holders of “Confidential Information.” Specifically, Petitioner had sought alt documents of (1) San Francisco County Adult Protective Services, (2) Dr. Abraham Nievod, and JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSEL€ C (3) San Francisco County’s Public Guardian, which in any way related to Charles Actis. Petitioner also had sought to depose Dr. Nievod and other agents or employees of San Francisco County Adult Protective Services, including Carrie Wong. (Declaration of George King [“King Dec!.”] ¥ 2.) / Notwithstanding the court’s denial of Petitioner’s motion to obtain the information and testimony on the grounds that said reports and information were confidential and privileged, on August 28, 2006 Petitioner filed a Motion for Summary Adjudication of Issues, and attached thereto a portion of the confidential Psychological Evaluation of Charles Actis report prepared by Dr. Nievod. (King Decl 3.) This Court has previously denied a Petition for Conservatorship of the Person and Estate of Charles Actis, on April 19, 2005. The confidential report of Dr. Nievod was offered and considered by this Court, along with the witnesses who are the subject of the instant motion. (King Decl. 14.) On February 16, 2007 Petitioner presented her Expert Witness List, naming Dr. Martin Blinder, Dr. Abraham Nievod, Carrie Wong and Shauna Gillespie Ford, all of whom are either employees or agents of San Francisco Adult Protective Services, and in possession of “confidential” reports which are part of their file. (King Decl. ] 5.) As part of the exchange of Expert Witness Lists, Petitioner’s attomey attached a copy of the report of Dr. Martin Blinder. Petitioner unlawfully disclosed Dr. Nievod’s report to Dr. Blinder, as evidenced by Dr. Blinder’s report, which refers to and quotes verbatim from Dr. Nievod’s report. Dr. Blinder based a substantial portion of his report on the reports of Dr. Nievod and others which are “confidential.” (King Decl. 6.)' A hearing on the City of San Francisco’s motion to exclude the testimony of Dr. Blinder and Dr. Charles Vella is pending before this court and is scheduled for March 21*, 2007 before Commissioner Hewlett, Jr. (King Decl. 4 7.) Unbeknown to this office until receiving a copy of ' Petitioner has not attached a copy of either Dr, Blinder’s report or Dr. Nievod’s report to this motion, since the disclosure of such information is a misdemeanor under Welfare & Institutions Code section 15633. (See City of San Francisco's Motion to Quash Trial Subpoenas of Dr. Abraham Nievod and Carrie Wong.) JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSEL© C the City’s motion on March 15, 2007, Petitioner has issued trial subpoenas for Dr. Abraham Nievod, Carrie Wong and Shauna Gillespie-Ford. (King Decl. { 8.) 1 LEGAL ARGUMENT A Petitioner’s Counsel's Illicit Reception and Repeated Routine Disclosure oe aed Co; fal and Privitcecd Under the ‘Welfare & Institutions Code is a Misdemeanor, In denying Petitioner’s motion to obtain the deposition testimony and reports of Dr. Abraham Nievod, Carrie Wong and other confidential information and reports contained in the APS file concerning Charles Actis, this court affirmed the well established principle that the testimony and documents relating to the contents of an APS investigation case file are confidential and cannot be disclosed to the public. , For the reasons detailed in the City of San Francisco Adult Protective Services motion to quash the trial subpoenas of Dr. Nievod and Carrie Wong (which Respondent hereby joins and incorporates herein by reference), a violation of the confidentiality provisions barring the disclosure of information concerning an Adult Protective Services investigation is a misdemeanor punishable by not more than six months in the county jail, by a fine of five hundred dollars, or by both the fine and imprisonment. (Welf. & Inst. Code §15633(a).) Dr. Nievod’s confidential report was requested as part of Petitioner’s request to defend the conservatorship. The report was never made part of the public record, unless by Petitioner herself, by Petitioner’s counsel improperly attaching the report to various motions and filing it with the court. In any case, Petitioner’s repeated disclosure of the contents of Dr. Nievod’s report (in her motion for summary adjudication, in her Mandatory Settlement Conference Statement and to her expert witness Dr. Blinder) is improper under the Welfare & Institutions Code, and subjects Petitioner’s counsel to a five hundred dollar fine and/or up to six months imprisonment, Counsel’s disclosure of said confidential information is even more egregious in light of this court’s denial, in September, 2005, of Petitioner’s motion to obtain the confidential and privileged information in the first place. i HT JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSELe € B. Petitioner's Counsel’s Disclosure of Information Deemed Confidential and Privileged Under the Welfare & Institutions Code Subjects B Mitchell and the Law Firm of Spellman and Mitchell to Disqualification Under C.C.P, § 128(a)(5). Attomey Robert B. Mitchell’s repeated disclosure of the contents of the APS investigation f file, his repeated attempts to obtain further confidential and privileged testimony and information, and Petitioner’s reliance on the contents of said file to attempt to prove her case at trial, subjects the law firm of Spellman & Mitchell to disqualification under section 128(a5) of the Code of Civil Procedure. C.C.P. section 128(a)(5) provides that every court shall have the power to “control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” The California Supreme Court recently noted that “the authority of a trial court ‘to disqualify an attorney derives from the power inherent in every court ‘[t]o contro! in furtherance of justice, the conduct of its ministerial officers.” City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846, citing People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145, quoting Code Civ. Proc., § 128, subd. (a)(5).) “Ultimately, disqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.’ Jd. As we have explained, however, ‘[t]he paramount concem must be to preserve public trust in the scrupulous administration of, ‘justice and the integrity of the bar.” Id. Although the law places great emphasis on the importance of a client's ability to retain the attorney of his or her choice, on occasion this interest must yield to the even more important public policy of maintaining the integrity of the judicial process. Gilbert y. National Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240, 1254. Much of the case law concerning attorney disqualification concerns instances where an attorney was disqualified as a result of having obtained confidential information from a former client in connection with the attomey’s subsequent representation of a new client adverse to the former client. However, an attomey’s receipt of confidential information from a non-client may also lead to the attorney's disqualification. See Morrison Knudsen Corp. v. Hancock, Rothert & JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSELc - € Bunshoft (1999) 69 Cal.App4th 223, 232-233, citing William H. Raley, Co. v. Superior Court, (1983), 149 Cal.App.3d 1042,1049 as “persuasive authority for the general proposition that an attomey's receipt of confidential information from a nonclient may lead to the attorney's disqualification.” “Ih fact, standing arises from a breach of the duty of confidentiality awed to the complaining party, regardless of whether a lawyer-client relationship existed. Thus, for example, a lawyer may be disqualified after improper contacts with an opposing party's expert witness (see County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 658), or even for obtaining confidential information from an opposing party’s prospective expert witness, See Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067 (entire firm disqualified after exchange of expert witness lists as a result of the presumption that defendant’s attorneys might have obtained confidential communications and privileged information). In the instant case, the duty of confidentiality repeatedly and flagrantly breached by Petitioner’s counsel was owed to all parties to this motion, including to the City of San Francisco, and more importantly, to this Court. Adult Protective Services has intervened three times in this case in an attempt to prevent Petitioner’s counsel from obtaining and utilizing confidential and privileged testimony and information. In denying Petitioner’s motion to obtain discovery in September, 2005, this Court itself ruled that the report of Dr. Nievod and the testimony of Dr. Nievod, Carrie Wong, and any other agent or employee of APS was confidential end privileged. Moreover, the complete APS file was properly considered at an earlier proceeding, in which this Court in April 2005, found Charles Actis competent to manage his own affairs, and issued an order denying the conservatorship of Mr. Actis, Petitioner in the instant case nonetheless continues to disclose confidential information in an effort to overturn this Court's ruling in the conservatorship proceedings. More importantly for purposes of this motion, Petitioner seeks to introduce confidential and privileged information and testimony at trial. Ifthe status or misconduct which is urged as a ground for disqualification of an attomey will have a continuing effect on the judicial proceedings which are before the court, it is justified in refusing to permit the lawyer to JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASI TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSELc € participate in such proceedings. Koo v, Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 734, Since Petitioner’s law firm is improperly in possession of certain confidential materials, and secks to use said materials at trial regardless of prior court orders, there can be little doubt that attorney Mitchell's misconduct in obtaining and disclosing the confidential information will have an effect on the judicial proceedings before the court, Respondent will obviously be prejudiced by the introduction of confidential APS testimony and reports at trial, when she had no opportunity to depose any APS agents or employees, including Dr. Nievod prior to trial. Petitioner’s counsel’s demonstrated intention to introduce confidential information at trial regardless of court orders precluding such disclosure, makes disqualification the proper remedy for Mr. Mitchell’s past and contemplated future misconduct. Prior court orders deeming the Nievod report and other contents of the APS file confidential have been utterly ineffective in preventing Mr. Mitchell from obtaining and disclosing confidential and privileged information. Only by disqualifying Spellman & Mitchell from representing Petitioner can the court preserve the integrity of the judicial process and thus preclude the further misuse and disclosure of confidential information and reports which this court has previously deemed privileged and exempt from disclosure. c. The Motion to Disqualify is Timel Although the trial of this matter is set for April 9, 2007, this motion to disqualify is timely as it is not the result of any unreasonably delay by Respondent. Respondent only learned on February 17, 2007, after reviewing the report of Dr. Martin Blinder attached to Petitioner’s Expert Witness List, that Petitioner had disclosed contents of the confidential APS file, including Dr. Nievod’s report, to Petitioner’s expert, Dr. Blinder. Respondent only learned on March 15, 2007 that notwithstanding this Court’s September, 2005 order specifically barring Dr. Nievod from providing testimony in this case, Petitioner had subpoenaed Dr. Nievod to testify at trial, Since the motion is not the result of unreasonable delay, and the only hardship possibly faced by Petitioner if the motion is granted is that she will have to retain new counsel who is not in possession of, and does not seek to introduce, confidential and privileged information, this motion to disqualify counsel is timely. See Jn re Complex Asbestos Litigation (1991) 232 JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO’S MOTION TO QUASH TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSEL€ C Cal.App.3d 572, 599-600 (opposing counsel's delay until eve of trial before moving to disqualify opposing law firm did not justify denying otherwise meritorious motion, where firm subject to disqualification failed to show that delay caused any prejudice much less extreme prejudice; cited new counsel was not type of prejudice contemplated). Il. CONCLUSION For the foregoing reasons, Respondent Eva Knott hereby joins in the motion of San Francisco Adult Protective Services to Quash the Trial Subpoenas and Subpoenas Duces Tecum of Dr. Abraham Nievod and Carrie Wong, and for Protective Order, and hereby respectfully requests that this Court grant the motion to disqualify Petitioner’s counsel. Se & FISHLEDER DATED: March 19, 2007 By: Aes George King oS Attorneys for Respondent EVA V. KNOTT JOINDER OF RESPONDENT EVA KNOTT TO CITY OF SAN FRANCISCO'S MOTION TO QUASH TRIAL SUBPOENAS; MOTION TO DISQUALIFY COUNSEL€ € PROOF OF SERVICE Re: In Re Revocable Living Trust Agreement of Charles Actis San Francisco County Superior Court Case No. PTR-05-287341 San Francisco County Superior Court Case No, PES-05-287457 1, AL GARCIA, declare: ___ lam employed in the City of Oakland, County of Alameda, State of California. My business address is 555 Twelfth Street, Suite 1440, Oakland, California 94607-4046. I am over the age of 18 years and not a party to the foregoing action. On March 19, 2007, I served a copy of the following documents on the interested parties in said action: 1, JOINDER OF RESPONDENT EVA KNOTT TO SAN FRANCISCO ADULT. PROTECTIVE SERVICES’ MOTION TO QUASH TRIAL SUBPOENAS AND SUBPOENAS DUCES TECUM FOR DR. ABRAHAM NIEVOD AND CARRIE WONG AND MOTION FOR PROTECTIVE ORDER; AND MOTION TO DISQUALIFY COUNSEL; and 2. DECLARATION OF GEORGE KING IN SUPPORT OF JOINDER TO MOTION TO QUASH TRIAL SUBPOENAS DUCES TECUM FOR DR. ABRAHAM NIEVOD AND CARRIE WONG AND MOTION TO DISQUALIFY PETITIONER'S COUNSEL, by placing a true copy thereof enclosed in a sealed envelope in a designated area for outgoing mail, X | VIAU.S. MAIL addressed as set forth below. At King, King & Fishleder, mail placed in that designated area is given the correct amount of postage and is deposited that same day, in the ordinary course of business, in a United States mailbox in the City of Oakland, California. by depositing a true copy thereof in a collection box or by having VIA UPS OVERNIGHT the sealed packet picked up by United Parcel Service, with DELIVERY charges thereon fully prepaid, at Oakland, California, and addressed as set forth below. by having a messenger service who is a non-interested party VIA HAND DELIVERY employed by the law firm of King, King & Fishleder, deliver a true copy thereof to the firm/person listed befow. by transmitting said document(s) from our office facsimile machine (510) 444-3401, to a facsimile machine number(s) shown below. X= s| VIA FACSIMILE Following transmission, | received a “Transmission Report" from our fax machine indicating that the transmission had been transmitted without error. After faxing, a copy was forwarded via U.S. Mail. PROOF OF SERVICE© 1 ]| Addressed as follows: foregoing is true and correct and Robert B. Mitchell, Esq. Spellman & Mitchell 1850 Mt, Diablo Blvd., Suite 670 Walnut Creek, CA 94596-4407 Telephone: (925) 938-5880 Facsimite:~ (925) 938-5880 Emest F. Der, Esq. Skootsky & Der LLP 90 New Montgomery Street, Suite 905 San Francisco, CA 94105 Telephone: (415) 979-9800 Facsimile: (415) 979-9821 Caroline K. Hinshaw, Esq. Bryan*Hinshaw 425 California Street, Suite 900 San Francisco, CA 94104 Telephone: (415) 295-0800 Facsimile: (415) 295-0812 Terence J. Howzell, Esq. Office of the City Attorney 1390 Market Street, 5" Floor San Francisco, CA 94102 Telephone: (415) 554-3960 Facsimile: (415) 557-6747 I declare under penalty of perjury and the laws of the State of California that the 17 | Oakland, California. PROOF OF SERVICE AIG at this declaration was executed on March 19, 2007, at