Preview
FILED/ENDORSED
1 Janice D. Dudensing (Bar No. 279561)
The Law Firm ofJan Dudensing JUL - 6 2018
2 925 G Sfreet
Sacramento, CA 95814
3 Telephone: (916) 448-3122 By:. B. sunnw
Deputy Clerk
Facsimile: (916)448-1004
4
Attomeys for Defendant,
5 Dr. James Longoria
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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 tmstee for the CHARLES SOMERS LIVING
TRUST,
12 MEMORANDUM OF POINTS AND
Plaintiff, AUTHORITIES IN SUPPORT OF
13 DEFENDANT'S MOTION TO
vs. DISQUALIFY WILLIAM R. WARNE
14 AND DOWNEY, BRAND, L L P
15 DR. JAMES LONGORIA, an individual, and Date: Ausust 08, 2018
DOES 1-10, Time: 9:(50 a.m.
16 Dept: 54
Defendants. Judge: Hon. Christopher E. Kmeger
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20 Defendant, James Longoria, M.D. ("Longoria") submits this memorandum in support of
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his Motion to Disqualify William R. Wame and Downey, Brand, LLP.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
T A B L E OF C O N T E N T S
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PAGE]
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L INTRODUCTION 1
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II. S T A T E M E N T OF FACTS 2
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5 IIL LEGAL ARGUMENT 6
6 A. THIS COURT IS AUTHORIZED TO DISQUALIFY OPPOSING COUNSEL
WILLIAM R. WARNE A N D SHOULD BECAUSE THERE IS A GRAVE
7 CONFLICT OF INTEREST IN VIOLATION OF RULES OF PROFESSIONAL
RESPONSIBILITY 6
8 1. William R. Wame And His Firm Have A Pattern Of Violating The Rules
Of Professional Responsibility And Therefore Should Be Disquabfied To
9 Represent Plaintiff In The Instant Matter When Such Conduct Has
Prejudiced Defendant 6
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2. William R. Wame And His Firm Has Obtained Confidential Informatdon
Germane To The Instant Lawsuit By Means Of Former Representation
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Of Defendant And Therefore Should Be Disqualified To Represent
12 Plaintiff In This Matter 9
13 B. THIS COURT SHOULD DISQUALIFY THE ENTIRE DOWNEY BRAND
FIRM 14
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rv. CONCLUSION 15
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MEMORANDUM OF POINTS AND AUTHORITIES I N SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
1 I. INTRODUCTION
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Plaintiff, Charles Somers is a savvy business investor. He has succeeded in mnning a
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multi-million dollar business enterprise. Plaintiff, Charles Somers made a conscious and fiilly
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5 informed business decision to invest in Defendant's medical device business ("LC") for the
6 invention, development and sale of proprietary devices for cardiac surgery. Unfortunately, for a
7 variety of reasons, LC stmggled to meet its projections. Somers and Longoria had different
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opinions on how to rectify the issues with LC. Nevertheless, the two, as equal shareholders were
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10 subject to defending LC in litigation and other corporate matters. For all of LC's legal issues,
11 William R. Wame and other employees of Downey Brand, LLP represented the corporation.
12 Because of this, Plaintiffs counsel, William Wame and the firm in which he is a managing
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partner, Downey Brand, LLP, had access to a wealth of confidential information that is germane
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to the instant lawsuit. Specifically, Plaintiffs counsel has been privy to Defendant's email
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16 account for several months. Defendant's email password was given to Plaintiffs counsel to
17 download email messages to defend LC in several matters of litigation. Plaintiffs counsel
18 additionally was provided numerous confidential intemal documents of LC. All such documents
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were provided to William R. Wame by Defendant Longoria. But, nevertheless, in the instant
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lawsuit Plaintiffhas retained Wame and his firm, Downey Brand, LC to represent him in his
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22 action against his equal shareholder, Longoria. Wame, while in possession of numerous relevant
23 confidential documents from Defendant Longoria because of past litigation where he represented
24 LC, has agreed to ignore his duty of loyalty and duty to avoid a conflict of interest. Indeed, he is
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the attomey of record for Longoria's adversary, Plaintiff Somers. Noteworthy, this is not the
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first go around for Wame. Expectedly, he has previously been admonished by our district court
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
for similar behavior. See United States ofAmerica v. Sierra Pacific Industries, Inc, Case 2:09-
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2 cv-02445-WBS. Because Plaintiffs counsel has violated the Rules of Professional
3 Responsibility and because he and his firm are privy to confidential information that is material
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in the instant litigation by way of Wame's prior representation of LC, Defendant respectfiiUy
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requests that the Court grant his motion to disqualify Wame and Downey Brand, LLP.
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8 I I . STATEMENT OF FACTS
9 On or about March 16, 2018, plaintiff, Charles Somers, through his attomeys of record,
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William R. Wame ("Wame") and Downey Brand, LLP, brought suit against defendant James
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Longoria, M.D. The suit alleges causes of action forfraud,negligent misrepresentation, unjust
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13 enrichment, and breach offiduciaryduty with all actions being based on the relationship between
14 Somers and Longoria as equal owners of LC Therapeutics, Inc., a Delaware S corporation
15 ("LC".)
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As alleged in the complaint, Somers and Longoria had been friends for a number of years.
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(Cx Para. 8.) Then, in the fall of 2013, Somers purchased an equity interest in LC which had
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19 been founded by Longoria and another individual, Roy Chin. (Cx. Para 17.) Roy Chin resigned
20 from LC in December, 2014. (Cx. Para 22.)
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Somers, thereafter, purchased additional equity in LC making him a 50% owner with
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Longoria owning the other 50%. (Cx. Para 25.) In 2017, the relationship between Somers and
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24 Longoria had deteriorated to such a point that Longoria filed for dissolution of LC in Delaware
25 on March 16, 2018. (Longoria Decl. 4.) Somers, through Wame and Downey Brand, filed this
26 action. Somers, in this action alleges that Longoria, amongst other things, failed to devote time
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and energy to the success of the company, failed to convert LC into a limited liability company,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
failed to allow Somers to increase his equity position in exchange for additional cash infiisions,
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2 refiased to have LC occupy space secured by Somers, etc. (Cx Paras 44-58.)
3 Wame and Downey Brand had represented Somers and Longoria with regard to LC since
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at least 2014. That representation began with legal advice and services being rendered in
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relationship to Roy Chin's resignation from LC. (Longoria Decl. 5.) As set forth in the
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7 complaint, Roy Chin submitted his resignation as of December 5, 2014. (Cx. Para. 22.) His
8 resignation gaveriseto a number of issues, and it was then that Wame established an attomey
9 client relationship with Longoria and LC. (See emails and text message from Wame to Longoria
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dated December 17 and 19, 2014 establishing the attomey client relationship and line of
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communication, attached as Exhibit 1 to Longoria Decl.) Longoria and Wame had direct
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13 attomey client communications regarding Chin's departure and how best to handle it. (Longoria
14 Dec. 5.)
15 Thereafter, Wame and Downey Brand represented LC in multiple matters. In and about
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the middle of 2016, Wame and Downey Brand represented LC in a dispute with a vendor named
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Stellartech Research Corporation. (Longoria Decl. 6 and representative emails attached thereto
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19 as Exhibit 2.) As part of that representation Wame and Downey Brand were provided with
20 access to tens if not hundreds of Longoria's emails. (Longoria Decl. 6 and emails attached
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thereto as Exhibit 3.) Longoria had a number of direct communications with Wame and
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Downey Brand during this matter. (Longoria Decl. 6.)
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24 Near the end of 2016, Wame and Downey Brand were engaged to represent LC in a
25 dispute it had with Corpus Medical, Inc. (Longoria Decl. 7.) In fact, on December 3, 2016,
26 Wame indicated that he would proceed with the representation prior his receiving a conflict
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report from his firm. (Longoria Dec. Ex. 4.) In representing LC, Wame had access to more
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
Longoria communications, and Longoria provided him with additional documentation. (Longoria
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2 Decl. 7 and emails attached thereto as Ex. 5.) Wame's representation of LC, Longoria and
3 Somers in this matter carried over into 2017.
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Then, in or about April of 2017, Wame and Downey Brand initiated representation of LC,
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Longoria and Somers with regard to a patent dispute with AtriCure, Inc., a competing medical
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7 device company (Longoria Decl. 8 and Email correspondence attached thereto as Ex. 6.) As this
8 representation began, Longoria had an initial three and a half hour consultation with Wame and
9 his partner Michael Thomas conceming his patents, LC's pursuit of those patents and AtriCure's
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infringement on their patent rights. (Id.) There were a numerous conversations and documents
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exchanged between Longoria and Wame moving this matter forward. (Id.) Ultimately, Wame
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13 drafted a demand letter to AtriCure outlining LC's position. (Longoria Decl. 8) That letter,
14 however, was never provided to Longoria or LC despite multiple requests. (Longoria Decl. 8.)
15 Significantly, at no time prior to the Chin representation, or the Stellartech representation,
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or the Corpus representation, or through the development of the AtriCure demand letter, did
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Wame or Downey Brand ever provide Longoria or LC with a written disclosure as to any
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19 conflicts or potential conflicts of interest that existed in their representation of LC and Longoria
20 by virtue of their concurrent representation of Somers and Somers' business SBM. (Longoria
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Decl. 9.) They never even had Longoria or LC execute an attomey services agreement through
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the course of this years long attomey client relationship. (Longoria Dec.9.)
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24 On or about May 27, 2017, in response to a Longoria email to Somers informing him that
25 Wame and Downey Brand were preparing a proposal to be submitted to AtriCure, Somers
26 replied by stating we are "Stopping all activities until we get an effective management team in
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place" and "LLC completion." (Longoria Decl. Ex. 7.) It was only then that Wame and
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
Downey Brand sought to obtain a conflict of interest waiver and representation agreement from
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2 Longoria and LC. (Longoria Decl. 10 and Emails attached as Exhibit 8.) Wame and Downey,
3 stopped moving the AtriCure matter forward and provided Longoria and LC with a
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representation letter. (Id. and Exhibit 9 thereto.) That letter was directed to Longoria and Somers
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individually and to LC. (See letter attached as part of Exhibit 9 to Longoria Decl.) Of course,
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7 the representation had already matured by this point as acknowledged by Wame. In his letter he
8 states "Thank you for retaining our firm to represent you and your interests as they pertain to LC
9 Therapeutics, Inc. (collectively, "you" and "your") .... He goes on to state that this letter
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describes the advantages and disadvantages of our joint representation of you, discusses the
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potential conflicts of interest that may arise from this joint representation, and seeks your consent
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13 to the joint representation, notwithstanding these potential conflicts of interest." (Id.)
14 Thereafter, in the Retainer section of the letter, he states "In light of my prior work with you and
15 your company ..., we do not require a retainer."
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Wame and Downey Brand, however, knowing that Somers, the more lucrative of their
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clients, was now wanting to force a different course at LC, needed to get Longoria and LC to
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19 sign off on allowing them to represent Somers in any action he ultimately chose to file against
20 Longoria and LC. (Id.) Once apprised of the conflicts or potential conflicts of interests that
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existed and Wame's request that he agree to allow Wame and Downey to represent Somers
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against him and LC , Longoria chose not to execute the vmtten representation letter and
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24 submitted a proposed revised agreement. (Longoria Decl. 11 and Exhibit 10, thereto.) Wame
25 and Downey Brand ultimately proposed a revised conflict waiver that would have allowed them
26 to continue representing Somers and SBM but not against Longoria or LC. (Longoria Decl. Ex.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
11.) By that time tmst had broken down and the parties did not proceed to execute the revised
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2 agreement. (Longoria Decl. 11.)
3 Now, Wame and Downey Brand are doing exactly what they said they wouldn't in their
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last proposed representation letter. They are pursuing an action on behalf of one client to the
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detriment of another. They will use the confidential information obtainedfromLongoria and LC
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7 over the years to directly harm them in this litigation. As noted above, the complaint speaks to
8 the efforts Longoria put forth in handling LC's business and certain acts between he and Somers.
9 Wame and Downey Brand have, over the years obtained information critical to those issues
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others raised by the complaint which they would not have had, had they provided Longoria and
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LC with the proper advice and representation in writing before they were engaged to represent
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13 them starting in 2014.
14 III. L E G A L ARGUMENT
15 A. THIS COURT IS AUTHORIZED TO DISQUALIFY OPPOSING COUNSEL
16 WILLIAM R. WARNE AND SHOULD BECAUSE THERE IS A GRAVE
CONFLICT OF INTEREST IN VIOLATION OF RULES OF
17 PROFESSIONAL RESPONSIBILITY
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1. William R. Warne And His Firm Have A Pattern Of Violating The Rules Of
19 Professional Responsibility And Therefore Should Be Disqualified To Represent
Plaintiff In The Instant Matter When Such Conduct Has Prejudiced Defendant
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The Rules o f Professional Responsibilit)' 3-310 require that:
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(B) A member shall not accept or continue representation of a client
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without providing written disclosure to the client where:
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(1) The member has a legal, business, financial, professional, or personal
24 relationsliip with a party or witness in the same matter; or
25 (2) The member knows or reasonably should know that:
26 (a) the member previously had a legal, business, financial, professional, or
personal relationship with a party or witness in the same matter; and
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, L L P
(b) the previous relationship would substantially affect the member's
1 representation.
2
In the instant case, Wame and Downey Brand in general have entirely violated Rule 3-310.
3
Specifically, Wame and Downey Brand have represented LC on numerous occasions, knowing
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5 that it presented a conflict of interest between the two equal shareholders and never obtained a
6 written disclosure in violation of Rule 3-310. To be sure, at no time prior to the Chin
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representation, or the Stellartech representation, or the Corpus representation, or through the
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development of the AtriCure demand letter, did Wame or Downey Brand ever provide Longoria
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10 or LC with a written disclosure as to any conflicts or potential conflicts of interest that existed in
11 their representation of LC and Longoria by virtue of their concurrent representation of Somers
12 and Somers' business SBM. They never even had Longoria or LC execute an attomey services
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agreement through the course of this year long attomey client relationship.
14
Indeed, it was not until May 27, 2017, in response to a Longoria email to Somers
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16 informing him that Wame and Downey Brand were preparing a proposal to be submitted to
17 AtriCure, that Somers replied stating we are "[sjtopping all activities until we get an effective
18 management team in place" and "LLC completion." It was only then that Wame and Downey
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Brand sought to obtain a conflict of interest waiver and representation agreement from Longoria
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and LC. Under Somers sole direction, Wame and Downey Brand stopped moving the AtriCure
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22 matter forward and provided Longoria and LC with a representation letter. That letter was
23 directed to Longoria and Somers individually and to LC. Of course, the representation had
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already matured by this point as acknowledged by Wame. In fact, Wame's letter stated "[tjhank
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you for retaining our firm to represent you and your interests as they pertain to LC Therapeutics,
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27 Inc. (collectively, "you" and "your") .... And went on to state that "this letter describes the
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
advantages and disadvantages of our joint representation of you, discusses the potential conflicts
1
2 of interest that may arise from this joint representation, and seeks your consent to the joint
3 representation, notwithstanding these potential conflicts of interest." Thereafter, in the Retainer
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section of the letter, he stated "[i]n light of my prior work with you and your company ..., we do
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not require a retainer." Clearly there was an ongoing legal relationship between LC and Wame
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7 and Downey Brand well before Wame sought written consent for the foreseeable conflict of
8 interest from Longoria and Somers.
9 As LC stmggled with legal issues, Wame and Downey Brand, knowing that Somers, the
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more lucrative of their clients, was now wanting to force a different course at LC, needed to get
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Longoria and LC to sign off on allowing them to represent Somers in any action he ultimately
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13 chose to file against Longoria and LC. Once apprised of the conflicts or potential conflicts of
14 interests that existed and Wame's request that he agree to allow Wame and Downey to represent
15 Somers against him and LC , Longoria chose not to execute the vmtten representation letter and
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submitted a proposed revised agreement. Wame and Downey Brand ultimately proposed a
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revised conflict waiver that would have allowed them to continue representing Somers and SBM
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19 but not against Longoria or LC. By that time tmst had broken down and the parties did not
20 proceed to execute the revised agreement. No conflict of interest consent was ever signed by
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Longoria.
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Not surprisingly, Wame and Downey Brand are doing exactly what they said they would
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24 refrain from doing in their last proposed representation letter. They are pursuing an action on
25 behalf of one client to the detriment of another. Even more egregious, Wame and his firm plan
26 on using the confidential information obtained from Longoria and LC over the years to directly
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harm him in this litigation. As noted above, the complaint speaks to the efforts Longoria put
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
forth in handling LC's business and certain acts between him and Somers. Wame and Downey
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2 Brand have, over the years obtained information critical to those issues and others raised by the
3 complaint, which they would not have had, had Longoria been provided with the proper advice
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and representation in writing before they were engaged to represent them starting in 2014.
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By failing to provide Longoria with proper disclosure in writing and by failing to obtain
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7 written consent from Longoria regarding the conflict of interest, Wame and Downey Brand have
8 violated the Rules of Professional Responsibility. To make matters worse, their violations are
9 egregious given that they have used confidential information obtained from the conflicted
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interest of representation to bring the present action. Because of this, it is clear that Wame and
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Downey Brand should be disqualified from representing Plaintiff in this matter.
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13 2. William R. Warne And His Firm Has Obtained Confidential Information Germane
To The Instant Lawsuit By Means Of Former Representation Of Defendant And
14 Therefore Should Be Disqualified To Represent Plaintiff In This Matter
15 "A member of the [State Bar] shall not, without the informed written consent of the client
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or former client, accept employment adverse to the client or former client where, by reason of the
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representation of the client or former client, the member has obtained confidential information
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19 material to the employment." Rules of Professional Conduct, Rule 3-310 (E). The primary
20 purpose of Rule 3-310 [E] is to protect the confidential relationship which exists between
21 attomey and client, a relationship which continues to exist after the formal relationship ends.
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David Welsh co., v. Erskine & Tully, 203 Cal. App. 3d 884, 891 (1st Dist. 1988). And therefore,
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the fiduciary nature of that relationship requires the application of strict standards. Civil Service
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25 Com. V. Superior Court, 163 Cal.App.3d 70, 79 (1984). For that reason, a former client may
26 seek to disqualify a former attomey from representing an adverse party by showing that the
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former attomey possesses confidential information adverse to the former client. H.F. Ahmanson
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY W I L L I A M R. WARNE AND DOWNEY, BRAND, LLP
& Co. V. Salomon Brothers, Inc., 229 Cal.App.3d 1445, 1452 (1991). Where such a conflict of
1
2 interest exists, and the former client has not consented to the current representation,
3 disqualification follows as a matter of course. The court does not engage in a "balancing of
4
equities" between the former and current clients. Therightsand interests of the former client
5
will prevail. River West, Inc. v. Nickel, 188 Cal. App. 3d 1297, 1304, 1308 (1987).
6
7 A client may also seek to disqualify an attomey from representing an adverse party by
8 showing that there is a "substantial relationship" between the former and current relationship. If
9 the former client established the existence of a substantial relationship between the relationships,
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the Court will conclusively presume that the attomey possesses information adverse to the
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fonner client and order disqualification. Henriksen v. Great American Savings & Loan, 11 Cal.
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13 App. 4th 109, 113-114 (1st Dist. 1992).
14 Furthermore, where an attomey's potentially conflicting representations are simultaneous,
15 the primary values at stake are the attomey's duty and the client's legitimate expectation of
16
loyalty. In such cases, the mle of disqualification is a per se or automatic one. Shen v. Miller,
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212 Cal. 4th 48, 56 (2012). Indeed, this is the mle by necessity, for it is not within the power of
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19 the former client to prove what is in the mind of the attomey. Nor should the attomey have to
20 "engage in a subtle evaluation of the extent to which he acquired relevant information in the first
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representation and of the actual use of that knowledge and information in the subsequent
22
representation." Global Van Lines, Inc. v. Superior Court (V.I.P. Movers, Inc.),144 Cal. App. 3d
23
24 484(1983).
25 In Global Van Lines, Inc. v. Superior Court, Global petitioned for a writ of mandate to
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command the Superior Court to disqualify the law office of Floyd L. Farano from representing
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Plaintiff "VIP" on the ground that Farano had confidential information of Global's affairs
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
germane to issues in the action as a result of his being counsel for Global for a numerous years.
1
2 VIP was Global's domestic agent and Farano was the counsel for Global. Therefore, Global
3 complained that Farano necessarily had confidential information regarding the issues complained
4
about in the complaint. VIP opposed the motion by attaching a declaration from Farano, where
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he declared while he was counsel for Global, he had "no personal knowledge of the present
6
7 dispute between the parties other than that obtained through communications with [his] client
8 just prior to the institution of [the] litigation." Id. at 488. The Superior Court denied the motion
9 pending further discovery regarding whether Farano had obtained confidential information
10
material to the pending lawsuit. Global sought a writ. The Court of Appeals issued a
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peremptory writ of mandate commanding the Superior Court to vacate its order denying Global's
12
13 motion for the disqualification of Farano as VIP's attomey and to make a new order granting the
14 motion for disqualification.
15 In granting the motion for disqualification, the Court of Appeal explained that the mle of
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law is that "[w]hen a substantial relationship has been shown to exist between the former
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representation and the current representation, and when it appears by virtue of the nature of the
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19 former representation or the relationship of the attomey to his former client confidential
20 information material to the current dispute would normally have been imparted to the attomey or
21
to subordinates for whose legal work he was responsible, the attomey's knowledge of
22
confidential information is presumed." Id. at 489. The court then tumed to the facts of the case
23
24 and reasoned that Plaintiffs counsel should have been disqualified because at the time of he
25 represented Global, notwithstanding he declared he had no confidential infonnation, it was
26 inconceivable that he did not receive such information considering his representation of Global.
27
Id. Plaintiff argued, in opposition to disqualification, "that Rule 4-101 contemplates a case in
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
which the attomey obtained confidential information in the former representation" and that the
1
2 trial court's mling implied a determination as a matter of fact that Farano obtained no
3 confidential information regarding the current dispute from his former client. The Court was not
4
impressed and explained that "it is well settled that actual possession of confidential information
5
need not be proved to disqualify an attomey from representing the adversary of a former client in
6
7 litigation against the former client." Id. at 489. It reasoned that the mle is by necessity, "for it is
8 not within the power of the former client to prove what is in the mind of the attomey. Nor
9 should the attomey have to 'engage in a subtle evaluation of the extent to which he acquired
10
relevant information in the first representation and of the actual use of that knowledge and
11
information in the subsequent representation.'" Id. at 490. Because of this, the Global Court
12
13 found that the Superior Court erred in not finding that there was a conflict such that Plaintiffs
14 counsel should be disqualified.
15 Similar to that case, here Plaintiffhas retained counsel despite a conflict of interest. Like
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Global, Wame and his law firm, Downey Brand, LLC have continuously represented LC since
17
2014 for legal issues pertaining to LC. There Eire two sole shareholders: Plaintiff and Defendant
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19 in the instant suit. Both have an equal share in LC. Wame and his firm have defended LC when
20 legal issues have arisen regarding LC. Specifically, Wame's legal representation began with
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legal advice and services in relationship to Roy Chin's resignation from LC. Chin's resignation
22
gaveriseto a number of issues, and it was then that Wame established an attomey client
23
24 relationship with Longoria and LC. Because of this, Longoria emd Wame had direct attomey
25 client communications regarding Chin's departure and how best to handle it.
26
Moreover, like in Global, Wame and Downey Brand represented LC in multiple other
27
matters. For example, in 2016 Wame and Downey Brand represented LC in a dispute with a
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
vendor named Stellartech Research Corporation. As part of that representation Wame and
1
2 Downey Brand were provided with access to Longoria's emails. All of such emails were
3 confidential and directly related to Longoria's work product, which is the very nature of the
4
instant suit.
5
Even sfronger than Global, in this case, Longoria had a number of direct communications
6
7 with Wame and Downey Brand during the previous lawsuits regarding the very subject matter in
8 the instant matter. Specifically, the cmx of the issues in the Stellartech Research Corporation
9 representation was Longoria's work in obtaining FDA approval of certain patents, an issue which
10
is germane to the instant lawsuit.
11
Likewise, Wame and Downey Brand obtained additional confidential information that is
12
13 material to the present lawsuit in late 2016, when they were engaged to represent LC in a dispute
14 it had with Corpus Medical, Inc. In representing LC, Wame had access to more of Longoria
15
communications, and Longoria provided him with additional documentation. All
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communications between Longoria and Wame/ Downey Brand regarded Longoria's work in
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18 LLC. Again, the content of these communications is exactiy what is at issue in the instant
19 lawsuit. Like Global, Wame's representation of LC, Longoria and Somers continued for some
20 time.
21
But, sfronger than Global, in this case, Wame and Downey Brand, cannot dispute that it
22
obtained confidential information substantial to the instant suit. For example, in April of 2017,
23
24 Wame and Downey Brand initiated representation of LC, Longoria and Somers with regard to a
25 patent dispute with AtriCure, Inc., a competing medical device company. As this representation
26
began, Longoria had an initial three and one half hour consultation with Wame and his partner
27
Michael Thomas conceming his patents, LC pursuit of those patents and AtriCure's infringement
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
on their patent rights. There were a numerous conversations and documents exchanged between
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2 Longoria and Wame moving this matter forward. Ultimately, Wame drafted a demand letter to
3 AtriCure outlining LC's position. Wame and Downey Brand's entire representation in that
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matter involved Longoria's patents and showing whatrightsLongoria had regarding those
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patents. All such matters are germane to the instant lawsuit given that the basis of Somers'
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7 lawsuit is that Longoria did not work hard enough to forward his patents to FDA approval.
8 Thus, it is indisputable that Wame and Downey Brand obtained confidential information while
9 representing Longoria and LLC, which is material to the instant lawsuit. Because of this, like the
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Global Court, the Court here should disqualify Wame and Downey Brand as opposing counsel.
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B. THIS COURT SHOULD DISQUALIFY THE ENTIRE DOWNEY BRAND
12 FIRM
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As a general mle in Caiifomia, where an attomey is disqualified from representation, the
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entire law firm is vicariously disqualified as well. This especially trae where one or more
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16 attomeys from the firm are necessary or likely witnesses at trial. Henriksen v. Great American
17 Savings & Loan, 11 Cal. App. 4th 109, 114-115; Klein v. Superior Court, 198 Cal. App. 3rd 894,
18 909 (6tii Dist. 1988).
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Here, Wame is a managing partner of Downey Brand and therefore he has supervising
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power and confrol of the other members in the firm. Moreover, Wame was not the only member
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22 of Downey Brand that met with Longoria/LC during the representation of LC. Longoria
23 conferred with other members of the firm, and as such, all such members are likely to be called
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as witnesses in the instant case because they have valuable infonnation as to the work product of
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Dr. Longoria as it relates to the instant lawsuit.
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27 Thus, because Wame unequivocally obtained confidential information material to the
28 instant lawsuit by means of his prior representation of Longoria, because he is a managing
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
partner at Downey Brand, and because members of the firm are likely to be called as witnesses,
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2 this Court should disqualify the entire Downey Brand firm.
3 IV. CONCLUSION
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Based on the foregoing, Longoria respectfially requests that the Court sustain Defendant's
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motion to disqualify William R, Wame and Downey Brand, LLP as opposing counsel in the
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7 instant matter.
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Dated: The Law Firm Jar^ Dudensing
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10 By:_
Janice D. pu^eming
11 Attomeys'^m' Defendant
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO
DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP
PROOF O F S E R V I C E
2 Charles Somer V. Dr. fames 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
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County of Sacramento. I am over the age of eighteen (18) years and not a party to the
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within action. My business address is 925 G Street, Sacramento, CA 95814
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Today, the following documents were served via US MAIL to the interested party
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below:
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9 1. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT QF
DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND
10 DOWNEY, BRAND, L L P
2. D E C L A R A T I O N O F J A N I C E D. D U D E N S I N G I N SUPPORT O F
11 D E F E N D A N T ' S M O T I O N T O DISQUALIFY WILLIAM R. WARNE AND
DOWNEY BRAND, L L P
12 3. D E C L A R A T I O N O F DR. JAMES LONGORIA I N SUPPORT O F
D E F E N D A N T ' S M O T I O N T O DISQUALIFY WILLIAM R. WARNE AND
13 DOWNEY BRAND, L L P
4. NOTICE IN SUPPORT OF DEFENDANT'S MOTION TQ DISQUALIFY
14 WILLIAM R. WARNE AND DOWNEY, BRAND, L L P
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16 Attomey for Defendant:
17 William R. Warne
Downey Brand LLP
18 621 Capitol MaU, 18th Floor
Sacramento, CA 95814
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bwarne(g),downeybrand.com
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21 I declare under penalty of perjury under the laws of the State of California that
22 the foregoing is true and correct, and that this declaration was executed on July 6, 2018.
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Proof of Service
Page 1
, 1
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Preview
FILED/ENDORSED 1 Janice D. Dudensing (Bar No. 279561) The Law Firm ofJan Dudensing JUL - 6 2018 2 925 G Sfreet Sacramento, CA 95814 3 Telephone: (916) 448-3122 By:. B. sunnw Deputy Clerk 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 tmstee for the CHARLES SOMERS LIVING TRUST, 12 MEMORANDUM OF POINTS AND Plaintiff, AUTHORITIES IN SUPPORT OF 13 DEFENDANT'S MOTION TO vs. DISQUALIFY WILLIAM R. WARNE 14 AND DOWNEY, BRAND, L L P 15 DR. JAMES LONGORIA, an individual, and Date: Ausust 08, 2018 DOES 1-10, Time: 9:(50 a.m. 16 Dept: 54 Defendants. Judge: Hon. Christopher E. Kmeger 17 18 19 20 Defendant, James Longoria, M.D. ("Longoria") submits this memorandum in support of 21 his Motion to Disqualify William R. Wame and Downey, Brand, LLP. 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP T A B L E OF C O N T E N T S 1 PAGE] 2 L INTRODUCTION 1 3 II. S T A T E M E N T OF FACTS 2 4 5 IIL LEGAL ARGUMENT 6 6 A. THIS COURT IS AUTHORIZED TO DISQUALIFY OPPOSING COUNSEL WILLIAM R. WARNE A N D SHOULD BECAUSE THERE IS A GRAVE 7 CONFLICT OF INTEREST IN VIOLATION OF RULES OF PROFESSIONAL RESPONSIBILITY 6 8 1. William R. Wame And His Firm Have A Pattern Of Violating The Rules Of Professional Responsibility And Therefore Should Be Disquabfied To 9 Represent Plaintiff In The Instant Matter When Such Conduct Has Prejudiced Defendant 6 10 2. William R. Wame And His Firm Has Obtained Confidential Informatdon Germane To The Instant Lawsuit By Means Of Former Representation 11 Of Defendant And Therefore Should Be Disqualified To Represent 12 Plaintiff In This Matter 9 13 B. THIS COURT SHOULD DISQUALIFY THE ENTIRE DOWNEY BRAND FIRM 14 14 rv. CONCLUSION 15 15 16 17 18 19 20 21 22 23 24 25 MEMORANDUM OF POINTS AND AUTHORITIES I N SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP 1 I. INTRODUCTION 2 Plaintiff, Charles Somers is a savvy business investor. He has succeeded in mnning a 3 multi-million dollar business enterprise. Plaintiff, Charles Somers made a conscious and fiilly 4 5 informed business decision to invest in Defendant's medical device business ("LC") for the 6 invention, development and sale of proprietary devices for cardiac surgery. Unfortunately, for a 7 variety of reasons, LC stmggled to meet its projections. Somers and Longoria had different 8 opinions on how to rectify the issues with LC. Nevertheless, the two, as equal shareholders were 9 10 subject to defending LC in litigation and other corporate matters. For all of LC's legal issues, 11 William R. Wame and other employees of Downey Brand, LLP represented the corporation. 12 Because of this, Plaintiffs counsel, William Wame and the firm in which he is a managing 13 partner, Downey Brand, LLP, had access to a wealth of confidential information that is germane 14 to the instant lawsuit. Specifically, Plaintiffs counsel has been privy to Defendant's email 15 16 account for several months. Defendant's email password was given to Plaintiffs counsel to 17 download email messages to defend LC in several matters of litigation. Plaintiffs counsel 18 additionally was provided numerous confidential intemal documents of LC. All such documents 19 were provided to William R. Wame by Defendant Longoria. But, nevertheless, in the instant 20 lawsuit Plaintiffhas retained Wame and his firm, Downey Brand, LC to represent him in his 21 22 action against his equal shareholder, Longoria. Wame, while in possession of numerous relevant 23 confidential documents from Defendant Longoria because of past litigation where he represented 24 LC, has agreed to ignore his duty of loyalty and duty to avoid a conflict of interest. Indeed, he is 25 the attomey of record for Longoria's adversary, Plaintiff Somers. Noteworthy, this is not the 26 first go around for Wame. Expectedly, he has previously been admonished by our district court 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP for similar behavior. See United States ofAmerica v. Sierra Pacific Industries, Inc, Case 2:09- 1 2 cv-02445-WBS. Because Plaintiffs counsel has violated the Rules of Professional 3 Responsibility and because he and his firm are privy to confidential information that is material 4 in the instant litigation by way of Wame's prior representation of LC, Defendant respectfiiUy 5 requests that the Court grant his motion to disqualify Wame and Downey Brand, LLP. 6 7 8 I I . STATEMENT OF FACTS 9 On or about March 16, 2018, plaintiff, Charles Somers, through his attomeys of record, 10 William R. Wame ("Wame") and Downey Brand, LLP, brought suit against defendant James 11 Longoria, M.D. The suit alleges causes of action forfraud,negligent misrepresentation, unjust 12 13 enrichment, and breach offiduciaryduty with all actions being based on the relationship between 14 Somers and Longoria as equal owners of LC Therapeutics, Inc., a Delaware S corporation 15 ("LC".) 16 As alleged in the complaint, Somers and Longoria had been friends for a number of years. 17 (Cx Para. 8.) Then, in the fall of 2013, Somers purchased an equity interest in LC which had 18 19 been founded by Longoria and another individual, Roy Chin. (Cx. Para 17.) Roy Chin resigned 20 from LC in December, 2014. (Cx. Para 22.) 21 Somers, thereafter, purchased additional equity in LC making him a 50% owner with 22 Longoria owning the other 50%. (Cx. Para 25.) In 2017, the relationship between Somers and 23 24 Longoria had deteriorated to such a point that Longoria filed for dissolution of LC in Delaware 25 on March 16, 2018. (Longoria Decl. 4.) Somers, through Wame and Downey Brand, filed this 26 action. Somers, in this action alleges that Longoria, amongst other things, failed to devote time 27 and energy to the success of the company, failed to convert LC into a limited liability company, 28 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP failed to allow Somers to increase his equity position in exchange for additional cash infiisions, 1 2 refiased to have LC occupy space secured by Somers, etc. (Cx Paras 44-58.) 3 Wame and Downey Brand had represented Somers and Longoria with regard to LC since 4 at least 2014. That representation began with legal advice and services being rendered in 5 relationship to Roy Chin's resignation from LC. (Longoria Decl. 5.) As set forth in the 6 7 complaint, Roy Chin submitted his resignation as of December 5, 2014. (Cx. Para. 22.) His 8 resignation gaveriseto a number of issues, and it was then that Wame established an attomey 9 client relationship with Longoria and LC. (See emails and text message from Wame to Longoria 10 dated December 17 and 19, 2014 establishing the attomey client relationship and line of 11 communication, attached as Exhibit 1 to Longoria Decl.) Longoria and Wame had direct 12 13 attomey client communications regarding Chin's departure and how best to handle it. (Longoria 14 Dec. 5.) 15 Thereafter, Wame and Downey Brand represented LC in multiple matters. In and about 16 the middle of 2016, Wame and Downey Brand represented LC in a dispute with a vendor named 17 Stellartech Research Corporation. (Longoria Decl. 6 and representative emails attached thereto 18 19 as Exhibit 2.) As part of that representation Wame and Downey Brand were provided with 20 access to tens if not hundreds of Longoria's emails. (Longoria Decl. 6 and emails attached 21 thereto as Exhibit 3.) Longoria had a number of direct communications with Wame and 22 Downey Brand during this matter. (Longoria Decl. 6.) 23 24 Near the end of 2016, Wame and Downey Brand were engaged to represent LC in a 25 dispute it had with Corpus Medical, Inc. (Longoria Decl. 7.) In fact, on December 3, 2016, 26 Wame indicated that he would proceed with the representation prior his receiving a conflict 27 report from his firm. (Longoria Dec. Ex. 4.) In representing LC, Wame had access to more 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP Longoria communications, and Longoria provided him with additional documentation. (Longoria 1 2 Decl. 7 and emails attached thereto as Ex. 5.) Wame's representation of LC, Longoria and 3 Somers in this matter carried over into 2017. 4 Then, in or about April of 2017, Wame and Downey Brand initiated representation of LC, 5 Longoria and Somers with regard to a patent dispute with AtriCure, Inc., a competing medical 6 7 device company (Longoria Decl. 8 and Email correspondence attached thereto as Ex. 6.) As this 8 representation began, Longoria had an initial three and a half hour consultation with Wame and 9 his partner Michael Thomas conceming his patents, LC's pursuit of those patents and AtriCure's 10 infringement on their patent rights. (Id.) There were a numerous conversations and documents 11 exchanged between Longoria and Wame moving this matter forward. (Id.) Ultimately, Wame 12 13 drafted a demand letter to AtriCure outlining LC's position. (Longoria Decl. 8) That letter, 14 however, was never provided to Longoria or LC despite multiple requests. (Longoria Decl. 8.) 15 Significantly, at no time prior to the Chin representation, or the Stellartech representation, 16 or the Corpus representation, or through the development of the AtriCure demand letter, did 17 Wame or Downey Brand ever provide Longoria or LC with a written disclosure as to any 18 19 conflicts or potential conflicts of interest that existed in their representation of LC and Longoria 20 by virtue of their concurrent representation of Somers and Somers' business SBM. (Longoria 21 Decl. 9.) They never even had Longoria or LC execute an attomey services agreement through 22 the course of this years long attomey client relationship. (Longoria Dec.9.) 23 24 On or about May 27, 2017, in response to a Longoria email to Somers informing him that 25 Wame and Downey Brand were preparing a proposal to be submitted to AtriCure, Somers 26 replied by stating we are "Stopping all activities until we get an effective management team in 27 place" and "LLC completion." (Longoria Decl. Ex. 7.) It was only then that Wame and 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP Downey Brand sought to obtain a conflict of interest waiver and representation agreement from 1 2 Longoria and LC. (Longoria Decl. 10 and Emails attached as Exhibit 8.) Wame and Downey, 3 stopped moving the AtriCure matter forward and provided Longoria and LC with a 4 representation letter. (Id. and Exhibit 9 thereto.) That letter was directed to Longoria and Somers 5 individually and to LC. (See letter attached as part of Exhibit 9 to Longoria Decl.) Of course, 6 7 the representation had already matured by this point as acknowledged by Wame. In his letter he 8 states "Thank you for retaining our firm to represent you and your interests as they pertain to LC 9 Therapeutics, Inc. (collectively, "you" and "your") .... He goes on to state that this letter 10 describes the advantages and disadvantages of our joint representation of you, discusses the 11 potential conflicts of interest that may arise from this joint representation, and seeks your consent 12 13 to the joint representation, notwithstanding these potential conflicts of interest." (Id.) 14 Thereafter, in the Retainer section of the letter, he states "In light of my prior work with you and 15 your company ..., we do not require a retainer." 16 Wame and Downey Brand, however, knowing that Somers, the more lucrative of their 17 clients, was now wanting to force a different course at LC, needed to get Longoria and LC to 18 19 sign off on allowing them to represent Somers in any action he ultimately chose to file against 20 Longoria and LC. (Id.) Once apprised of the conflicts or potential conflicts of interests that 21 existed and Wame's request that he agree to allow Wame and Downey to represent Somers 22 against him and LC , Longoria chose not to execute the vmtten representation letter and 23 24 submitted a proposed revised agreement. (Longoria Decl. 11 and Exhibit 10, thereto.) Wame 25 and Downey Brand ultimately proposed a revised conflict waiver that would have allowed them 26 to continue representing Somers and SBM but not against Longoria or LC. (Longoria Decl. Ex. 27 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP 11.) By that time tmst had broken down and the parties did not proceed to execute the revised 1 2 agreement. (Longoria Decl. 11.) 3 Now, Wame and Downey Brand are doing exactly what they said they wouldn't in their 4 last proposed representation letter. They are pursuing an action on behalf of one client to the 5 detriment of another. They will use the confidential information obtainedfromLongoria and LC 6 7 over the years to directly harm them in this litigation. As noted above, the complaint speaks to 8 the efforts Longoria put forth in handling LC's business and certain acts between he and Somers. 9 Wame and Downey Brand have, over the years obtained information critical to those issues 10 others raised by the complaint which they would not have had, had they provided Longoria and 11 LC with the proper advice and representation in writing before they were engaged to represent 12 13 them starting in 2014. 14 III. L E G A L ARGUMENT 15 A. THIS COURT IS AUTHORIZED TO DISQUALIFY OPPOSING COUNSEL 16 WILLIAM R. WARNE AND SHOULD BECAUSE THERE IS A GRAVE CONFLICT OF INTEREST IN VIOLATION OF RULES OF 17 PROFESSIONAL RESPONSIBILITY 18 1. William R. Warne And His Firm Have A Pattern Of Violating The Rules Of 19 Professional Responsibility And Therefore Should Be Disqualified To Represent Plaintiff In The Instant Matter When Such Conduct Has Prejudiced Defendant 20 The Rules o f Professional Responsibilit)' 3-310 require that: 21 (B) A member shall not accept or continue representation of a client 22 without providing written disclosure to the client where: 23 (1) The member has a legal, business, financial, professional, or personal 24 relationsliip with a party or witness in the same matter; or 25 (2) The member knows or reasonably should know that: 26 (a) the member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; and 27 28 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, L L P (b) the previous relationship would substantially affect the member's 1 representation. 2 In the instant case, Wame and Downey Brand in general have entirely violated Rule 3-310. 3 Specifically, Wame and Downey Brand have represented LC on numerous occasions, knowing 4 5 that it presented a conflict of interest between the two equal shareholders and never obtained a 6 written disclosure in violation of Rule 3-310. To be sure, at no time prior to the Chin 7 representation, or the Stellartech representation, or the Corpus representation, or through the 8 development of the AtriCure demand letter, did Wame or Downey Brand ever provide Longoria 9 10 or LC with a written disclosure as to any conflicts or potential conflicts of interest that existed in 11 their representation of LC and Longoria by virtue of their concurrent representation of Somers 12 and Somers' business SBM. They never even had Longoria or LC execute an attomey services 13 agreement through the course of this year long attomey client relationship. 14 Indeed, it was not until May 27, 2017, in response to a Longoria email to Somers 15 16 informing him that Wame and Downey Brand were preparing a proposal to be submitted to 17 AtriCure, that Somers replied stating we are "[sjtopping all activities until we get an effective 18 management team in place" and "LLC completion." It was only then that Wame and Downey 19 Brand sought to obtain a conflict of interest waiver and representation agreement from Longoria 20 and LC. Under Somers sole direction, Wame and Downey Brand stopped moving the AtriCure 21 22 matter forward and provided Longoria and LC with a representation letter. That letter was 23 directed to Longoria and Somers individually and to LC. Of course, the representation had 24 already matured by this point as acknowledged by Wame. In fact, Wame's letter stated "[tjhank 25 you for retaining our firm to represent you and your interests as they pertain to LC Therapeutics, 26 27 Inc. (collectively, "you" and "your") .... And went on to state that "this letter describes the 28 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP advantages and disadvantages of our joint representation of you, discusses the potential conflicts 1 2 of interest that may arise from this joint representation, and seeks your consent to the joint 3 representation, notwithstanding these potential conflicts of interest." Thereafter, in the Retainer 4 section of the letter, he stated "[i]n light of my prior work with you and your company ..., we do 5 not require a retainer." Clearly there was an ongoing legal relationship between LC and Wame 6 7 and Downey Brand well before Wame sought written consent for the foreseeable conflict of 8 interest from Longoria and Somers. 9 As LC stmggled with legal issues, Wame and Downey Brand, knowing that Somers, the 10 more lucrative of their clients, was now wanting to force a different course at LC, needed to get 11 Longoria and LC to sign off on allowing them to represent Somers in any action he ultimately 12 13 chose to file against Longoria and LC. Once apprised of the conflicts or potential conflicts of 14 interests that existed and Wame's request that he agree to allow Wame and Downey to represent 15 Somers against him and LC , Longoria chose not to execute the vmtten representation letter and 16 submitted a proposed revised agreement. Wame and Downey Brand ultimately proposed a 17 revised conflict waiver that would have allowed them to continue representing Somers and SBM 18 19 but not against Longoria or LC. By that time tmst had broken down and the parties did not 20 proceed to execute the revised agreement. No conflict of interest consent was ever signed by 21 Longoria. 22 Not surprisingly, Wame and Downey Brand are doing exactly what they said they would 23 24 refrain from doing in their last proposed representation letter. They are pursuing an action on 25 behalf of one client to the detriment of another. Even more egregious, Wame and his firm plan 26 on using the confidential information obtained from Longoria and LC over the years to directly 27 harm him in this litigation. As noted above, the complaint speaks to the efforts Longoria put 28 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP forth in handling LC's business and certain acts between him and Somers. Wame and Downey 1 2 Brand have, over the years obtained information critical to those issues and others raised by the 3 complaint, which they would not have had, had Longoria been provided with the proper advice 4 and representation in writing before they were engaged to represent them starting in 2014. 5 By failing to provide Longoria with proper disclosure in writing and by failing to obtain 6 7 written consent from Longoria regarding the conflict of interest, Wame and Downey Brand have 8 violated the Rules of Professional Responsibility. To make matters worse, their violations are 9 egregious given that they have used confidential information obtained from the conflicted 10 interest of representation to bring the present action. Because of this, it is clear that Wame and 11 Downey Brand should be disqualified from representing Plaintiff in this matter. 12 13 2. William R. Warne And His Firm Has Obtained Confidential Information Germane To The Instant Lawsuit By Means Of Former Representation Of Defendant And 14 Therefore Should Be Disqualified To Represent Plaintiff In This Matter 15 "A member of the [State Bar] shall not, without the informed written consent of the client 16 or former client, accept employment adverse to the client or former client where, by reason of the 17 representation of the client or former client, the member has obtained confidential information 18 19 material to the employment." Rules of Professional Conduct, Rule 3-310 (E). The primary 20 purpose of Rule 3-310 [E] is to protect the confidential relationship which exists between 21 attomey and client, a relationship which continues to exist after the formal relationship ends. 22 David Welsh co., v. Erskine & Tully, 203 Cal. App. 3d 884, 891 (1st Dist. 1988). And therefore, 23 the fiduciary nature of that relationship requires the application of strict standards. Civil Service 24 25 Com. V. Superior Court, 163 Cal.App.3d 70, 79 (1984). For that reason, a former client may 26 seek to disqualify a former attomey from representing an adverse party by showing that the 27 former attomey possesses confidential information adverse to the former client. H.F. Ahmanson 28 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY W I L L I A M R. WARNE AND DOWNEY, BRAND, LLP & Co. V. Salomon Brothers, Inc., 229 Cal.App.3d 1445, 1452 (1991). Where such a conflict of 1 2 interest exists, and the former client has not consented to the current representation, 3 disqualification follows as a matter of course. The court does not engage in a "balancing of 4 equities" between the former and current clients. Therightsand interests of the former client 5 will prevail. River West, Inc. v. Nickel, 188 Cal. App. 3d 1297, 1304, 1308 (1987). 6 7 A client may also seek to disqualify an attomey from representing an adverse party by 8 showing that there is a "substantial relationship" between the former and current relationship. If 9 the former client established the existence of a substantial relationship between the relationships, 10 the Court will conclusively presume that the attomey possesses information adverse to the 11 fonner client and order disqualification. Henriksen v. Great American Savings & Loan, 11 Cal. 12 13 App. 4th 109, 113-114 (1st Dist. 1992). 14 Furthermore, where an attomey's potentially conflicting representations are simultaneous, 15 the primary values at stake are the attomey's duty and the client's legitimate expectation of 16 loyalty. In such cases, the mle of disqualification is a per se or automatic one. Shen v. Miller, 17 212 Cal. 4th 48, 56 (2012). Indeed, this is the mle by necessity, for it is not within the power of 18 19 the former client to prove what is in the mind of the attomey. Nor should the attomey have to 20 "engage in a subtle evaluation of the extent to which he acquired relevant information in the first 21 representation and of the actual use of that knowledge and information in the subsequent 22 representation." Global Van Lines, Inc. v. Superior Court (V.I.P. Movers, Inc.),144 Cal. App. 3d 23 24 484(1983). 25 In Global Van Lines, Inc. v. Superior Court, Global petitioned for a writ of mandate to 26 command the Superior Court to disqualify the law office of Floyd L. Farano from representing 27 Plaintiff "VIP" on the ground that Farano had confidential information of Global's affairs 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP germane to issues in the action as a result of his being counsel for Global for a numerous years. 1 2 VIP was Global's domestic agent and Farano was the counsel for Global. Therefore, Global 3 complained that Farano necessarily had confidential information regarding the issues complained 4 about in the complaint. VIP opposed the motion by attaching a declaration from Farano, where 5 he declared while he was counsel for Global, he had "no personal knowledge of the present 6 7 dispute between the parties other than that obtained through communications with [his] client 8 just prior to the institution of [the] litigation." Id. at 488. The Superior Court denied the motion 9 pending further discovery regarding whether Farano had obtained confidential information 10 material to the pending lawsuit. Global sought a writ. The Court of Appeals issued a 11 peremptory writ of mandate commanding the Superior Court to vacate its order denying Global's 12 13 motion for the disqualification of Farano as VIP's attomey and to make a new order granting the 14 motion for disqualification. 15 In granting the motion for disqualification, the Court of Appeal explained that the mle of 16 law is that "[w]hen a substantial relationship has been shown to exist between the former 17 representation and the current representation, and when it appears by virtue of the nature of the 18 19 former representation or the relationship of the attomey to his former client confidential 20 information material to the current dispute would normally have been imparted to the attomey or 21 to subordinates for whose legal work he was responsible, the attomey's knowledge of 22 confidential information is presumed." Id. at 489. The court then tumed to the facts of the case 23 24 and reasoned that Plaintiffs counsel should have been disqualified because at the time of he 25 represented Global, notwithstanding he declared he had no confidential infonnation, it was 26 inconceivable that he did not receive such information considering his representation of Global. 27 Id. Plaintiff argued, in opposition to disqualification, "that Rule 4-101 contemplates a case in 28 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP which the attomey obtained confidential information in the former representation" and that the 1 2 trial court's mling implied a determination as a matter of fact that Farano obtained no 3 confidential information regarding the current dispute from his former client. The Court was not 4 impressed and explained that "it is well settled that actual possession of confidential information 5 need not be proved to disqualify an attomey from representing the adversary of a former client in 6 7 litigation against the former client." Id. at 489. It reasoned that the mle is by necessity, "for it is 8 not within the power of the former client to prove what is in the mind of the attomey. Nor 9 should the attomey have to 'engage in a subtle evaluation of the extent to which he acquired 10 relevant information in the first representation and of the actual use of that knowledge and 11 information in the subsequent representation.'" Id. at 490. Because of this, the Global Court 12 13 found that the Superior Court erred in not finding that there was a conflict such that Plaintiffs 14 counsel should be disqualified. 15 Similar to that case, here Plaintiffhas retained counsel despite a conflict of interest. Like 16 Global, Wame and his law firm, Downey Brand, LLC have continuously represented LC since 17 2014 for legal issues pertaining to LC. There Eire two sole shareholders: Plaintiff and Defendant 18 19 in the instant suit. Both have an equal share in LC. Wame and his firm have defended LC when 20 legal issues have arisen regarding LC. Specifically, Wame's legal representation began with 21 legal advice and services in relationship to Roy Chin's resignation from LC. Chin's resignation 22 gaveriseto a number of issues, and it was then that Wame established an attomey client 23 24 relationship with Longoria and LC. Because of this, Longoria emd Wame had direct attomey 25 client communications regarding Chin's departure and how best to handle it. 26 Moreover, like in Global, Wame and Downey Brand represented LC in multiple other 27 matters. For example, in 2016 Wame and Downey Brand represented LC in a dispute with a 28 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP vendor named Stellartech Research Corporation. As part of that representation Wame and 1 2 Downey Brand were provided with access to Longoria's emails. All of such emails were 3 confidential and directly related to Longoria's work product, which is the very nature of the 4 instant suit. 5 Even sfronger than Global, in this case, Longoria had a number of direct communications 6 7 with Wame and Downey Brand during the previous lawsuits regarding the very subject matter in 8 the instant matter. Specifically, the cmx of the issues in the Stellartech Research Corporation 9 representation was Longoria's work in obtaining FDA approval of certain patents, an issue which 10 is germane to the instant lawsuit. 11 Likewise, Wame and Downey Brand obtained additional confidential information that is 12 13 material to the present lawsuit in late 2016, when they were engaged to represent LC in a dispute 14 it had with Corpus Medical, Inc. In representing LC, Wame had access to more of Longoria 15 communications, and Longoria provided him with additional documentation. All 16 communications between Longoria and Wame/ Downey Brand regarded Longoria's work in 17 18 LLC. Again, the content of these communications is exactiy what is at issue in the instant 19 lawsuit. Like Global, Wame's representation of LC, Longoria and Somers continued for some 20 time. 21 But, sfronger than Global, in this case, Wame and Downey Brand, cannot dispute that it 22 obtained confidential information substantial to the instant suit. For example, in April of 2017, 23 24 Wame and Downey Brand initiated representation of LC, Longoria and Somers with regard to a 25 patent dispute with AtriCure, Inc., a competing medical device company. As this representation 26 began, Longoria had an initial three and one half hour consultation with Wame and his partner 27 Michael Thomas conceming his patents, LC pursuit of those patents and AtriCure's infringement 28 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP on their patent rights. There were a numerous conversations and documents exchanged between 1 2 Longoria and Wame moving this matter forward. Ultimately, Wame drafted a demand letter to 3 AtriCure outlining LC's position. Wame and Downey Brand's entire representation in that 4 matter involved Longoria's patents and showing whatrightsLongoria had regarding those 5 patents. All such matters are germane to the instant lawsuit given that the basis of Somers' 6 7 lawsuit is that Longoria did not work hard enough to forward his patents to FDA approval. 8 Thus, it is indisputable that Wame and Downey Brand obtained confidential information while 9 representing Longoria and LLC, which is material to the instant lawsuit. Because of this, like the 10 Global Court, the Court here should disqualify Wame and Downey Brand as opposing counsel. 11 B. THIS COURT SHOULD DISQUALIFY THE ENTIRE DOWNEY BRAND 12 FIRM 13 As a general mle in Caiifomia, where an attomey is disqualified from representation, the 14 entire law firm is vicariously disqualified as well. This especially trae where one or more 15 16 attomeys from the firm are necessary or likely witnesses at trial. Henriksen v. Great American 17 Savings & Loan, 11 Cal. App. 4th 109, 114-115; Klein v. Superior Court, 198 Cal. App. 3rd 894, 18 909 (6tii Dist. 1988). 19 Here, Wame is a managing partner of Downey Brand and therefore he has supervising 20 power and confrol of the other members in the firm. Moreover, Wame was not the only member 21 22 of Downey Brand that met with Longoria/LC during the representation of LC. Longoria 23 conferred with other members of the firm, and as such, all such members are likely to be called 24 as witnesses in the instant case because they have valuable infonnation as to the work product of 25 Dr. Longoria as it relates to the instant lawsuit. 26 27 Thus, because Wame unequivocally obtained confidential information material to the 28 instant lawsuit by means of his prior representation of Longoria, because he is a managing 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP partner at Downey Brand, and because members of the firm are likely to be called as witnesses, 1 2 this Court should disqualify the entire Downey Brand firm. 3 IV. CONCLUSION 4 Based on the foregoing, Longoria respectfially requests that the Court sustain Defendant's 5 motion to disqualify William R, Wame and Downey Brand, LLP as opposing counsel in the 6 7 instant matter. 8 Dated: The Law Firm Jar^ Dudensing 9 10 By:_ Janice D. pu^eming 11 Attomeys'^m' Defendant 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND DOWNEY, BRAND, LLP PROOF O F S E R V I C E 2 Charles Somer V. Dr. fames 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 Today, the following documents were served via US MAIL to the interested party 7 below: 8 9 1. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT QF DEFENDANT'S MOTION TO DISQUALIFY WILLIAM R. WARNE AND 10 DOWNEY, BRAND, L L P 2. D E C L A R A T I O N O F J A N I C E D. D U D E N S I N G I N SUPPORT O F 11 D E F E N D A N T ' S M O T I O N T O DISQUALIFY WILLIAM R. WARNE AND DOWNEY BRAND, L L P 12 3. D E C L A R A T I O N O F DR. JAMES LONGORIA I N SUPPORT O F D E F E N D A N T ' S M O T I O N T O DISQUALIFY WILLIAM R. WARNE AND 13 DOWNEY BRAND, L L P 4. NOTICE IN SUPPORT OF DEFENDANT'S MOTION TQ DISQUALIFY 14 WILLIAM R. WARNE AND DOWNEY, BRAND, L L P 15 16 Attomey for Defendant: 17 William R. Warne Downey Brand LLP 18 621 Capitol MaU, 18th Floor Sacramento, CA 95814 19 bwarne(g),downeybrand.com 20 21 I declare under penalty of perjury under the laws of the State of California that 22 the foregoing is true and correct, and that this declaration was executed on July 6, 2018. 23 24 25 Proof of Service Page 1 , 1 \