Preview
FILED
1 Janice D. Dudensing (Bar No. 279561) 'ENDORSED
The Law Firm ofJan Dudensing
2 925 G Street 2010 AUG 13 AH II
Sacramento, CA 95814 SUPERIOR COURl Of Ci\LIFOi^\NIA
3 Telephone: (916) 448-3122 . COUNTY.OF SACRAMENTO
Facsimile: (916) 448-1004
4
Attomeys for Defendant,
5 Dr. James Longoria
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SACRAMENTO
10
CHARLES SOMERS, individually and as Case No.: 34-2018-229212
11 trustee for the CHARLES SOMERS LIVING
12 TRUST, REPLY IN SUPPORT OF DEFENDANT'S
Plaintiff, MOTION TO DISQUALIFY WILLIAM R,
13 WARNE AND DOWNEY, BRAND, L L P
14 vs.
15 DR. JAMES LONGORIA, an individual, and
Tx vue ; ^ .00 \r*^
16 DOES 1-10,
Defendants.
17
18
19
20
I. INTRODUCTION
21
22 Let's be clear. There are solely two shareholders in LC. One is the Plaintiff in this matter
23 and the other is the Defendant. So, when Wame and Downey Brand, LLP admittedly
24 represented this closely held corporation on several occasions it necessarily obtained germane
25
information to the instant lawsuit. After all, each and every cause of action involves conduct
26
27 squarely in the confines of the business-LC. Thus, because of the prior representations regarding
28
REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R.
WARNE AND DOWNEY, BRAND, LLP
LC, Wame's representation of one of the two shareholders, Somers is substantially related to his
1
2 prior representation of LC. In line with the carefiilly drafted suit, which asserts personal actions
3 against Longoria versus business complaints against LC, is the defense to the present motion to
4
disqualify. Wame and Downey Brand, LLP cannot deny that they represented two individuals
5
(the sole shareholders of LC) on several occasions, were made privy to the ends and outs of LC
6
7 because of those representations, and necessarily obtained confidential information from
8 Longoria along the way. While Plaintiffs' opposition seeks to split hairs in an attempt to get
9 away with its professional violations, this Court should see this gamesmanship and disqualify
10
Plaintiffs' present representation so that Defendant has a fair opportunity to defend himself in the
11
instant litigation.
12
13
14 III. L E G A L ARGUMENT
15
A. California Has Adopted The Substantial Relationship Test, Which Has Been
16 Met Here And Therefore Confidential Information Pertinent To The Instant
Lawsuit Is Presumed to Have Been Disclosed
17
18
It is clear that a client may also seek to disqualify an attomey from representing an adverse
19
party if there is a "substantial relationship" between the former and current relationship. If the
20
21 Court finds the existence of a substantial relationship between the relationships, it will
22 conclusively presume that the attomey possesses information adverse to the former client and
23 order disqualification. Henriksen v. Great American Savings &Loan, 11 Cal. App. 4th 109,
24
113-114 (1st Dist. 1992); Global Van Lines, Inc. v. Superior Court (V.LP. Movers, Inc.),\AA Cal.
25
App. 3d 484(1983).
26
27
28
REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R.
WARNE AND DOWNEY, BRAND, LLP
Furthermore, where an attomey's potentially conflicting representations are simultaneous,
1
2 the primary values at stake are the attomey's duty and the client's legitimate expectation of
3 loyalty. In such cases, the mle of disqualification is a per se or automatic one. Shen v. Miller,
4
212 Cal. 4th 48, 56 (2012). Indeed, this is the mle by necessity, for it is not within the power of
5
the former client to prove what is in the mind of the attomey. Nor should the attomey have to
6
7 "engage in a subtle evaluation of the extent to which he acquired relevant information in the first
8 representation and of the actual use of that knowledge and information in the subsequent
9 representation." Global Van Lines, Inc. v. Superior Court (V.I.P. Movers, Inc.),\44 Cal. App. 3d
10
484(1983).
11
12 Plaintiffs attempt to distinguish Global in an effort to argue that disqualification is not
13 proper. However, while the facts in that case may not be identical to the instant case, the cmx of
14 the Global Court's reasoning tums on facts that are similar to this case. Indeed^ the Global
15
Court's finding of a "substantial relationship" between the former and present litigation was
16
based on three key factors.
17
18
First the Global Court found it significant that the conflicted attomey, Farano was
19
counsel for the former client. Global at the time when the dispute between Global and his present
20
21 client, VIP arose; and therefore, a reasonable inference was that Farano obtained information
22 during that representation. While Farano submitted a signed declaration that he did not have any
23
present recollection of any complaints by VIP against Global, the Court was not swayed and
24
reasoned "he was then the head of the legal office of Global to which such a potential legal
25
26 problem would logically have been referred." Global Van Lines, Inc. v. Superior Court (V.I.P.
27 Movers, Inc.),\44 Cal. App. 3d at 486.
28
REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R.
WARNE AND DOWNEY, BRAND, LLP
Similarly, here, the difficulties between Somers and Longoria arose during the time that
1
2 Wame was counsel for the closely held corporation, LC. For example, when Somers became
3 fioistrated with how LC was being managed, he called for a private meaning with Chin (the
4
former equal shareholder of LC). Shortly after that meeting. Chin resigned. LC hired Wame,
5
Downey Brand, LLP to advise it on how to handle the departure of Chin and any potential
6
7 liability. Certziinly, during private conversations between Wame and Longoria, Chin's gripe
8 about Somers was disclosed to Wame. And, the fact that Chin resigned due to management
9 issues, which is at the center of the present lawsuit, it is logically inferred that Wame obtained
10
information relevant to the instant dispute.
11
12
Next, the Global Court found it meaningfial that the litigation between Global and VIP
13
had to do with a business transaction that Farano was direcdy involved in. Id.
14
15
The same could be said about Wame. In the instant case, after Somers met with Chin and
16
complained about the management of LC, Chin resigned. It was then that Wame represented LC
17
18 and advised Longoria regarding Chin, which lead to Somers purchasing a 50% share of LC.
19 Thus, Wame was directly involved with Somers obtaining an equal share in LC. And, the cmx
20 of the present litigation revolves around the purchasing of those shares and the rights associated
21
with the purchase.
22
23
Finally, the Global Court reasoned that along the way, as general counsel for Global,
24
Farano necessarily advised those key to the action, and therefore, "it must be presumed that
25
26 during . . . [this time], Mr. Farano acquired substantial knowledge of the polices, attitudes and
27 practices of Global's management" in respect to issues that were complained about in the
28
REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R.
WARNE AND DOWNEY, BRAND, L L P
litigation. Global Van Lines, Inc. v. Superior Court (V.I.P. Movers, Inc.),144 Cal. App. 3d at
1
2 487.
3
4 Similarly, here, once Wame had detailed conversations with Longoria regarding the Chin
5 sudden resignation and the ramifications of the break-up of the business, Wame acquired specific
6 knowledge of Longoria's business practice. Longoria's business management of LC is at the
7
center of Somers' complaint in the present action. It is simply inconceivable that during the
8
negotiations and departure of Chin, which Wame admittedly represented Longoria/LC during,
9
10 that Wame did not leam information important to present litigation.
11
12 All three of the key points the Global Court set forth in its reasoning are present in this
13 case. Moreover, while Somers and Wame argue at length that Wame did not obtain confidential
14 information, the Court need not consider such an argument because as the Global Court stated,
15
"it is well settled that actual possession of confidential information need not be proved to
16
disqualify an attomey from representing the adversary of a former client in litigation against the
17
18 former client... the attomey's knowledge of confidential information is presumed." Id.
19
IV. CONCLUSION
20
21 Based on the foregoing, Longoria respectfully requests that the Court sustain Defendant's
22 motion to disqualify William R, Wame and Downey Brand, LLP as opposing counsel in the
23
instant matter.
24
Dated: The Law Firm Jan Dudensing
25
26
27
28
REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R.
WARNE AND DOWNEY, BRAND, L L P
PROOF O F S E R V I C E
2 Charles Somer V. Dr. James Longoria, Sacramento Superior Court, Case No.: 34-2018-00229212
3
I , Patty Paniagua, am a Legal Resident of the United States and employed in the
4
County of Sacramento. I am over the age of eighteen (18) years and not a party to the
5
within action. My business address is 925 G Street, Sacramento, CA 95814
6
7
Today, the following document was hand delivered to the interested party below:
8 REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R.
WARNE AND DOWNEY, BRAND, L L P
9
10
Attorney for Plaintiff:
11
William R. Warne
12 Downey Brand LLP
621 Capitol MaU, 18di Floor
13
Sacramento, CA 95814
14 bwarne(g),downeybrand.com
15
I declare under penalty of perjury under the laws of the State of California that
16
the foregoing is true and correct, and that this declaration was executed on August 13, 2018.
17
18
19
20
21
22
23
24
25
Proof of Service
Page 1
Preview
FILED 1 Janice D. Dudensing (Bar No. 279561) 'ENDORSED The Law Firm ofJan Dudensing 2 925 G Street 2010 AUG 13 AH II Sacramento, CA 95814 SUPERIOR COURl Of Ci\LIFOi^\NIA 3 Telephone: (916) 448-3122 . COUNTY.OF SACRAMENTO Facsimile: (916) 448-1004 4 Attomeys for Defendant, 5 Dr. James Longoria 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 CHARLES SOMERS, individually and as Case No.: 34-2018-229212 11 trustee for the CHARLES SOMERS LIVING 12 TRUST, REPLY IN SUPPORT OF DEFENDANT'S Plaintiff, MOTION TO DISQUALIFY WILLIAM R, 13 WARNE AND DOWNEY, BRAND, L L P 14 vs. 15 DR. JAMES LONGORIA, an individual, and Tx vue ; ^ .00 \r*^ 16 DOES 1-10, Defendants. 17 18 19 20 I. INTRODUCTION 21 22 Let's be clear. There are solely two shareholders in LC. One is the Plaintiff in this matter 23 and the other is the Defendant. So, when Wame and Downey Brand, LLP admittedly 24 represented this closely held corporation on several occasions it necessarily obtained germane 25 information to the instant lawsuit. After all, each and every cause of action involves conduct 26 27 squarely in the confines of the business-LC. Thus, because of the prior representations regarding 28 REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP LC, Wame's representation of one of the two shareholders, Somers is substantially related to his 1 2 prior representation of LC. In line with the carefiilly drafted suit, which asserts personal actions 3 against Longoria versus business complaints against LC, is the defense to the present motion to 4 disqualify. Wame and Downey Brand, LLP cannot deny that they represented two individuals 5 (the sole shareholders of LC) on several occasions, were made privy to the ends and outs of LC 6 7 because of those representations, and necessarily obtained confidential information from 8 Longoria along the way. While Plaintiffs' opposition seeks to split hairs in an attempt to get 9 away with its professional violations, this Court should see this gamesmanship and disqualify 10 Plaintiffs' present representation so that Defendant has a fair opportunity to defend himself in the 11 instant litigation. 12 13 14 III. L E G A L ARGUMENT 15 A. California Has Adopted The Substantial Relationship Test, Which Has Been 16 Met Here And Therefore Confidential Information Pertinent To The Instant Lawsuit Is Presumed to Have Been Disclosed 17 18 It is clear that a client may also seek to disqualify an attomey from representing an adverse 19 party if there is a "substantial relationship" between the former and current relationship. If the 20 21 Court finds the existence of a substantial relationship between the relationships, it will 22 conclusively presume that the attomey possesses information adverse to the former client and 23 order disqualification. Henriksen v. Great American Savings &Loan, 11 Cal. App. 4th 109, 24 113-114 (1st Dist. 1992); Global Van Lines, Inc. v. Superior Court (V.LP. Movers, Inc.),\AA Cal. 25 App. 3d 484(1983). 26 27 28 REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP Furthermore, where an attomey's potentially conflicting representations are simultaneous, 1 2 the primary values at stake are the attomey's duty and the client's legitimate expectation of 3 loyalty. In such cases, the mle of disqualification is a per se or automatic one. Shen v. Miller, 4 212 Cal. 4th 48, 56 (2012). Indeed, this is the mle by necessity, for it is not within the power of 5 the former client to prove what is in the mind of the attomey. Nor should the attomey have to 6 7 "engage in a subtle evaluation of the extent to which he acquired relevant information in the first 8 representation and of the actual use of that knowledge and information in the subsequent 9 representation." Global Van Lines, Inc. v. Superior Court (V.I.P. Movers, Inc.),\44 Cal. App. 3d 10 484(1983). 11 12 Plaintiffs attempt to distinguish Global in an effort to argue that disqualification is not 13 proper. However, while the facts in that case may not be identical to the instant case, the cmx of 14 the Global Court's reasoning tums on facts that are similar to this case. Indeed^ the Global 15 Court's finding of a "substantial relationship" between the former and present litigation was 16 based on three key factors. 17 18 First the Global Court found it significant that the conflicted attomey, Farano was 19 counsel for the former client. Global at the time when the dispute between Global and his present 20 21 client, VIP arose; and therefore, a reasonable inference was that Farano obtained information 22 during that representation. While Farano submitted a signed declaration that he did not have any 23 present recollection of any complaints by VIP against Global, the Court was not swayed and 24 reasoned "he was then the head of the legal office of Global to which such a potential legal 25 26 problem would logically have been referred." Global Van Lines, Inc. v. Superior Court (V.I.P. 27 Movers, Inc.),\44 Cal. App. 3d at 486. 28 REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP Similarly, here, the difficulties between Somers and Longoria arose during the time that 1 2 Wame was counsel for the closely held corporation, LC. For example, when Somers became 3 fioistrated with how LC was being managed, he called for a private meaning with Chin (the 4 former equal shareholder of LC). Shortly after that meeting. Chin resigned. LC hired Wame, 5 Downey Brand, LLP to advise it on how to handle the departure of Chin and any potential 6 7 liability. Certziinly, during private conversations between Wame and Longoria, Chin's gripe 8 about Somers was disclosed to Wame. And, the fact that Chin resigned due to management 9 issues, which is at the center of the present lawsuit, it is logically inferred that Wame obtained 10 information relevant to the instant dispute. 11 12 Next, the Global Court found it meaningfial that the litigation between Global and VIP 13 had to do with a business transaction that Farano was direcdy involved in. Id. 14 15 The same could be said about Wame. In the instant case, after Somers met with Chin and 16 complained about the management of LC, Chin resigned. It was then that Wame represented LC 17 18 and advised Longoria regarding Chin, which lead to Somers purchasing a 50% share of LC. 19 Thus, Wame was directly involved with Somers obtaining an equal share in LC. And, the cmx 20 of the present litigation revolves around the purchasing of those shares and the rights associated 21 with the purchase. 22 23 Finally, the Global Court reasoned that along the way, as general counsel for Global, 24 Farano necessarily advised those key to the action, and therefore, "it must be presumed that 25 26 during . . . [this time], Mr. Farano acquired substantial knowledge of the polices, attitudes and 27 practices of Global's management" in respect to issues that were complained about in the 28 REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, L L P litigation. Global Van Lines, Inc. v. Superior Court (V.I.P. Movers, Inc.),144 Cal. App. 3d at 1 2 487. 3 4 Similarly, here, once Wame had detailed conversations with Longoria regarding the Chin 5 sudden resignation and the ramifications of the break-up of the business, Wame acquired specific 6 knowledge of Longoria's business practice. Longoria's business management of LC is at the 7 center of Somers' complaint in the present action. It is simply inconceivable that during the 8 negotiations and departure of Chin, which Wame admittedly represented Longoria/LC during, 9 10 that Wame did not leam information important to present litigation. 11 12 All three of the key points the Global Court set forth in its reasoning are present in this 13 case. Moreover, while Somers and Wame argue at length that Wame did not obtain confidential 14 information, the Court need not consider such an argument because as the Global Court stated, 15 "it is well settled that actual possession of confidential information need not be proved to 16 disqualify an attomey from representing the adversary of a former client in litigation against the 17 18 former client... the attomey's knowledge of confidential information is presumed." Id. 19 IV. CONCLUSION 20 21 Based on the foregoing, Longoria respectfully requests that the Court sustain Defendant's 22 motion to disqualify William R, Wame and Downey Brand, LLP as opposing counsel in the 23 instant matter. 24 Dated: The Law Firm Jan Dudensing 25 26 27 28 REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, L L P PROOF O F S E R V I C E 2 Charles Somer V. Dr. James Longoria, Sacramento Superior Court, Case No.: 34-2018-00229212 3 I , Patty Paniagua, am a Legal Resident of the United States and employed in the 4 County of Sacramento. I am over the age of eighteen (18) years and not a party to the 5 within action. My business address is 925 G Street, Sacramento, CA 95814 6 7 Today, the following document was hand delivered to the interested party below: 8 REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, L L P 9 10 Attorney for Plaintiff: 11 William R. Warne 12 Downey Brand LLP 621 Capitol MaU, 18di Floor 13 Sacramento, CA 95814 14 bwarne(g),downeybrand.com 15 I declare under penalty of perjury under the laws of the State of California that 16 the foregoing is true and correct, and that this declaration was executed on August 13, 2018. 17 18 19 20 21 22 23 24 25 Proof of Service Page 1