Motion for Summary Judgment in Bessolo, John Felix vs R and R Horn| Trellis.Law

On May 25, 2016 a Motion,Ex Parte was filed involving a dispute between Bessolo, John Felix, and R And R Horn Inc, for civil in the District Court of Butte County.

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F Superior Court of Californi F
| County of Butte
|
OCT 06 2017 L
BOBBY DALE SIMS, JR (SBN 202622) E
MICHELLE WIEDERHOLD, ESQ. (SBN 244854)
SIMS, LAWRENCE & ARRUTI By
Ki erly Flener, Clerk
D
Deputy
1891 E. Roseville Pkwy, Ste: 180
Roseville, CA 95661
Telephone: (916) 797-8881
Facsimile: (916)253-1544
Attomeys for Defendant
R&R HORN, INC. (ertoneously sued herein as R AND R HORN, INC.,
a corporation, d/b/a R AND R HORN GENERAL CONTRACTORS;
R AND R HORN CONTRACTORS, INC., a corporation, d/b/a R ANDR
HORN GENERAL CONTRACTORS

SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF BUTTE
11 JOHN FELIX BESSOLO, CASE NO. 16CV00793
12 Plaintiff, OPPOSITION TO PLAINTIFF’S MOTION
TO DISQUALIFY THE SIMS,
13 v, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
14 R AND R HORN, INC., a corporation, d/b/a R
AND R HORN GENERAL CONTRACTORS Date: October 20, 2017
15 RAND R HORN CONTRACTORS, INC., a Time: 9:00 AM
corporation, d/b/a R AND R HORN GENERAL Dept: TBA
16 CONTRACTORS, and DOES 1 through 50,
inclusive,
17
Defendants,
18

19 AND RELATED CROSS ACTIONS
20

22
23

24
25
26
27

28
-0-
OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FTRM AS
COUNSEL TO DEFENDANTS
TABLE OF CONTENTS

INTRODUCTION,
IL ARGUMENT sed

A SLA’s Representation of Horn Does Not Violate the Rules Against Being
Adverse to a Former Client in a “Substantial Related” Matter

1 Plaintiff has not shown and cannot show there is an actual oror imputed
conflict .
Plaintiff Has Not Shown and Cannot Show the Two Matters Raise
Similar Factual or Legal Issues
SLA Built an Ethical-Wall around Rodman and Littlefield
Plaintiffs’ Motion (oto Disqualify Should Be Denied as Tactical and Prejudicial
10 to Horn. 10
11 I CONCLUSION 12
12

13
14

18
19

23
24
25
26
27

28
ie
OPPOSITION TO PLAINTIFES’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS.
COUNSEL TO DEFENDANTS
a

TABLE OF AUTHORITIES

CASES
Adams y. Aerojet-General Corp.,
supra, 86 CA4th 1324 4, 6, 8,9
Comden v Superior.Gourt
(1978) 20 C3d-906. 10
Flatt v Superior Court
(1994) 9 C4th 275...
Freemont Indem, Co. v. Freemont Gen. Corp.
(2003) 143 Cal. App.44th 50
Gregori v. Bank of Am.
(1989) 207 Cal. App. 3d 291 10
Goldberg v Warner/Chappell'Music, Inc.
(2005) 125 CA4th 752.
10 ELF, Ahmanson & Co. v, Salomon Brothers, ‘Ino,
il
(1991) 229 Cal. App. 3d 1445
Henriksen v Great Am. Sav, & Loan
12 (1992) 11 CA4th 109.
Jessen v. Hartford Casualty Ins, Co.
13 (2003) 111 Cal.App.4th 698
14 Johnson v, Superior Court
(1984) 159 Cal, App. 34 573 sue seeseavens 10
15 Kirk Corp. v. First Am. Title Co.
(1990) 220 Cal. App. 3d 790
16
Liberty Nat'l Enters., L.P. v Chicago Title Ins. Co.
17 (2011) 194 CAdth 839 1
Maruman Integrated Circuits, Inc. v Consortium Co.
18 (1985) 166 CA3d 443 10
19 Mills Land & Water Co. v Golden W. Ref Co.
(1986) 186 CA3d 116,
20 People ex rel Department ofCorps. vSpeeDee Oil Change Ss.
(1999) 20 C4th 1135...
ai
Rhaburn v. Superior Court
22 (2006) 140 Cal. App. 4th 1566 . 5,10
River W., Inc, v Nickel
23 (1987) 188 CA3d 1297... 1
24 Rosenfeld Constr. Co. v Super yy Court
(1991) 235 CA3d 566, 575...
25 Santa Teresa Citizen Action Group v ay of Sa San JeJose
(2003) 114 Cal. App. 4th 689...
26
Shurance v. Planning Control Int'l, Inc.,
27 (9th Cir. 1988) 839 F.2d 1347... sees 10
Western Continental Operating Co, Narra Gas Cor;
28 (1989) 212 CA3d 752. 10
oii.
OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
1 William H. Raley Co. v. Superior Court
(1983) 149 Cal.App.3d 1042 5,6
2
REGULATIONS
3
4 California State Bar Rules of. Professional Conduct,
Rule 3-310(B) and Rule 3-310(E).... tones sates sesssnenneedy 3

ll
12
13
14

1S
16
17
18
19
20
21

22
23
24
25
26
27
28
-iii-
OPPOSITIONTO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
Sims, Lawrence & Arvuti, counsel for R&R Horn, Inc., R&R Hom, Inc. (“Hom”) hereby submits

its Opposition to Plaintiff's Motion to Disqualify the Sims, Lawrence & Arruti firm (“SLA”) as

counsel for R&R.

L INTRODUCTION
This case arises out of unpermitted and illegal grading and site modification by plaintiff, John

Felix Bessolo, on property he owns near the embankment of Butte Creek (the “Property”). The Butte
County District Attorney (*BCDA”) conducted a criminal investigation of Bessolo’s site activities on

the Property and retained John Lane (“Lane”), a licensed geologist doing business as Chico
Environmental and Science Planning, to assist with the investigation and protection of endangered

10 and other salmonid populations from siltation and other pollution harms resulting from the land

1 disturbance caused by Bessolo’s work.

12 Based on BCDA’s investigation, Lane prepared and aided in implementation of an emergency

13 environmental remediation plan (the “Emergency Plan”) calling for the immediate stabilization of the

14 Property to prevent wide spread and significant pollution to the waters of Butte Creek and harm to

15 endangered salmon. Bessolo was subsequently charged and ultimately pleaded no contest to three

16 environmental misdemeanors and was required to pay restitution to several government agencies.

17 Bessolo went on probation and was required to fund emergency work to restore and stabilize the

18 embankment outlined in the Emergency Plan.

19 Horn prepared and submitted a bid, along with other contractors, to directly implement Lane’s

20 Emergency Plan to BCDA/County of Butte. Based on an injunction, Bessolo was required to fund the

21 Emergency Pian in the amount of the bid, $55,000.

22 Bessolo filed suit against Lane for the Emergency Plan Lane developed and implemented at

23 BCDA’s request. Lane filed a Special Motion to Strike pursuant to the anti-SLAPP statute, which

24 was granted. Two days prior to Lane’s anti-SLAPP motion being heard and granted, Bessolo filed a

25 Complaint against Horn on the theory of private nuisance for Horns work at the property.

26 IL ARGUMENT
27 Plaintiff's motion to disqualify SLA from representing Horn, is meritless and should be
28 denied. The facts are these:
-l-
OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
SLA was retained by and through R&R Horu’s insurance carriers in or around July 2016';

SLA performed a routine conflict check and determined the firm did not have a conflict?;

Rodman performed a routine conflict check and determined he did not have a conflict};

Shortly after retention, Rodman assigned Susan Littlefield’ as paralegal on the file, and

Michelle Wiederhold as a handling attomey*;

Written discovery between the parties has occurred®;

Plaintiff produced additional documents on June 27, 2017, to Hom’s counsel”;
Among those documents were pleadings pertaining to the suit by County of Butte against

Plaintiff wherein Daniel Crowley & Associates (“Crowley”) defended Bessolo’;

10 Tn reviewing the documents, Rodman learned for the first time his prior firm represented

ll Bessolo’;
12 9 Rodman disclosed the potential conflict to Plaintiff, Horn, and the insurance carriers’;

13 10. SLA built an ethical wall around Rodman and Littlefield';

i4 11. Bobby Dale Sims, Jr. replaced Rodman on the file as the partner, and Michelle Wiederhold

is continued on as Senior Associate! !,

16 A. SLA’s Representation of Horn Does Not Violate the Rules Against
Being Adverse to a Former Client in a “Substantial Related” Matter,
17
1 Plaintiff has not shown and cannot show there is an actual or i uted
18 conflict

19 Plaintiff cannot establish SLA’s representation of Horn violates the rule against accepting

20 employment adverse to a former client in a matter that is substantially related to the former

21 representation. California State Bar Rules of Professional Conduct, Rule 3-310(B) and Rule 3-

22
23 ' See Declaration of Booby Dale Sims, Jr. (hereinafter, “Sims Decl.”) 3-4; See Declaration of Jordan Rodman
(hereinafter, “Rodman Decl.”) 43.
24 * Sims Declaration 95.
? Rodman Decl. $3.
25 4 Of Note, Ms. Littlefield is no longer employed by SLA.
5 Rodman Decl. 4.
26 6 Sims Decl. $16.
7 Rodman Deel. $5.
27 * Rodman Decl. 6-8.
? Rodman Decl. 49.
'° Sims Decl. $97, 9.
28 " Sims Decl. 8; Rodman Decl. 49.
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OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
310(E) read as follow:

{B) A member shall not accept or continue representation of a client without
providing written disclosure to the client where:
(1) The member has a legal, business, financial, professional, or personal
relationship with a party or witness in the same matter; or
(2) The member knows or reasonably should know that:
(a) the member previously had a legal, business, financial, professional, or
personal relationship with a party or witness in the same matter; and
(b) the previous relationship would substantially affect the member's
representation; or
(3) The member has or had a legal, business, financial, professional, or personal
relationship with’ another person or entity the member knows or reasonably
should know would be affected substantially by resolution of the matter; or
(4) The member has or had a legal, business, financial, or professional interest in
the subject matter of the representation.
10 O
(E) A member shall not, without the informed written consent of the client or
ll former client, accept employment adverse to the client or former client where, by
reason of the representation of the client or former client, the member has
12
obtained confidential information material to the employment. (emphasis added)
13
In discussing Rule 3-310(B), “Paragraph (B) is intended to apply only to a member's own
14
relationships or interests, unless the member knows that a partner or associate in the same finn as
15
the member has or had a relationship with another party or witness or has or had an interest in the
16
subject matter of the representation.” (emphasis added). This clearly indicates if a member does
17
not have knowledge of a partner or associate in the same firm has or had a relationship with
18
another party, it should not be violative to accept employment.
19
Rodman accepted an assignment through Horn’s insurance carrier, having absolutely no
20
knowledge that his former firm, Crowley, ever represented Bessolo, (Rodman Decl. 2, 5-6.)
21
Although Rodman and Littlefield technically had access to the server which housed potential
22
confidential material, Rodman and Littlefield did not and have not received any confidential
23
information material through their prior firm pertaining to Bessolo, (Rodman Decl. 446-8.) In fact,
24
it was an astonishment to leam his former firm represented Bessolo. (Rodman Decl. 6.) Based on
2s
Rule 3-310(B) and 3-310(E), there is not an actual conflict as Bessolo argues in his moving
26
papers. Moreover, Rodman and SLA did not violate Rule 3-310 of the California State Bar Rules
27
of Professional Conduct.
28
3.
OPPOSITION TO.PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
—

Generally, when an attorney is disqualified from representation because of an ethical

conflict, the disqualification extends to the entire firm, i.e., the firm is vicariously disqualified

(Flatt v Superior Court (1994) 9 C4th 275, 286), at least when an effective ethical screen has not

been established (People ex rel Department of Corps. v SpeeDee Oil Change Sys. (1999) 20 C4th
1135, 1151). The rule of vicarious disqualification is based on the doctrine of imputed knowledge;

the knowledge by any member of a law firm is knowledge by all attorneys in the firm, partners as

well as associates. Rosenfeld Constr. Co. v Superior Court (1991) 235 CA3d 566, 575. However,

there are exceptions to this general rule of the appearance of an ethical conflict and imputed

knowledge.

10 Since the rationale for imputed disqualification rests on the danger of shared confidences,

11 disqualification of a whole firm is generally unnecessary if only one attorney in a firm has

12 allegedly violated an ethical rule that does not pertain to potential breach of client confidences.

13 See, ¢.g., Mills Land & Water Co. v Golden W. Ref, Co. (1986) 186 CA3d 116 (individual lawyer,

14 not firm, disqualified for violation of former California Rules of Professional Conduct 7-107 (now

15 see Cal Rules of Prof Cond 2—100 (communication with represented party).

16 In addition, the imputed disqualification doctrine raises substantial difficulties in today's

17 environment of increased attorney mobility. A pattner’s or associate's change of employment

18 could necessitate withdrawal by the new firm if the new firm and old firm are on opposite sides of

19 a lawsuit if the following arises: 1) If relevant, confidential information was disclosed if the two

20 matters are “substantially related,” and 2) that all lawyers in a firm share their clients’ confidences.

21 This is the case even if the circumstances do not evidence any significant risk of improper

22 disclosure of confidential information.

23 Recognizing the harshness of presuming the existence of a conflict even when no conflict

24 actually exists, in Adams v Aerojet-General Corp. (2001) 86 CA4th 1324, 1333, the appellate

25 court declined to require automatic disqualification of the plaintiffs attorney, who was formerly

26 associated with a law firm that had represented the defendant, even though the subject matter of

27 the former representation was substantially related to the subject matter of the lawsuit. Noting that

28 "(dJisqualification based on a conclusive presumption of imputed knowledge derived from a
<4.
OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
~

lawyer's past association with a law firm is out of touch with the present-day practice of law" (86
CA4th at 1336), the court remanded the case to the trial court to ascertain "whether confidential
information material to the current representation would normally have been imparted to the

attorney during his tenure at the old firm." 86 CA4th at 1340. See also Goldberg v
Warner/Chappell Music, Inc. (2005) 125 CA4th 752 (attomey's former firm disqualified only if
evidence showed attorney had actually passed on confidential information about plaintiff to

members of former firm); Rhaburn v Superior Court (2006) 140 CA4th 1566, 1581 (courts should

use flexible approach that considers the totality William H. Raley Co. v. Superior Court (1983)
149 Cal.App.3d 1042 of circumstances to determine whether confidential information has been

10 obtained).

i Plaintiff attempts to utilize William H. Raley Co., to argue that if a partner has a conflict

12 then the entire firm should be vicariously disqualified, and that walling off the partner is not

13 sufficient. The facts in William H. Raley Co. do not mimic those in the instant action.

14 Here, Rodman nor Littlefield would not have normally been imparted with any

1S confidential information material as an associate and paralegal of the Crowley firm. (Rodman

16 Deel. 7-8.) First, Rodman, as noted in his correspondence to Plaintiff's counsel, had distinctly

17 separate files from Daniel Crowley of the Crowley law firm. (/d.) Although the information was

18 housed on the same server, Rodman had no occasion to search through and obtain any information

19 pertaining to files unassociated with Rodman’s handling. (/d.) Daniel Crowley and Rodinan did

20 not share confidences, confidential material matter, and rarely spoke regarding their respective

2t cases. (Jd.) The same applies to Littlefield, she worked solely for Rodman at Crowley. {dd.)

22 Therefore, confidential information material to the current representation would not have normally

23 been imparted nor was it ever imparted to Rodman during his tenure at Crowley. (Rodman Decl.

24 4117-8.) Again, Rodman was stunned to lear Crowley represented Bessolo in a separate and

25 distinct action.

26 The facts above are in. opposite to the facts in William H. Raley Co., supra, 149

27 Cal.App.3d 1042, In William H. Raley Co., a partner was on the Board of Directors for the bank

28 which was trustee for the William H. Raley Testamentary (“WHRC”) Trust holding 100 percent in
<5
OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
WHRC common stock. The firm itself had never represented the bank or WHRC. The law firm
was representing the party suing WHRC. The court determined the partner had a conflict because
he was a board member for the bank and he had a clear and discrete fiduciary duty to the bank as a
trustee. Here, Rodman did not directly represent Bessolo. His involvement with Crowley did not
create a clear and discrete fiduciary duty to Bessolo as noted in William H, Raley Co. Rodman did
not obtain any confidential information material of or pertaining to Bessolo prior to or during his

representation of Horn. (Rodman Decl. {{f5-8.)
The totality surrounding the unique set of circumstances pertaining to Rodman’s prior
association with Crowley and now SLA, does not warrant imputed knowledge and therefore

10 disqualification, Rodman does not have any confidential information material pertaining to

1 Bessolo. (Rodman Decl. 7-8.) There is no actual conflict. Accordingly, Plaintiff's motion to

12 disqualify should be denied and SLA should continue representing Horn.

13 2. Plaintiff Has Not Shown and C t Show the Two Matters Raise Similar Factual
1 Legal Issue:
14
Adams y. Aerojet-General Corp., supra, 86 CA4th 1324, is the first published decision to
15
refer to the “modified version of the “substantial relationship test.” Three factors are considered in
16
applying the test: "(1) factual similarities between the two representations, (2) similarities in legal
17
issues, and (3) the nature and extent of the attorney's involvement with the case and whether he
18
was in a position to learn of the client's policy or strategy.” Adams, supra, 86 Cal.App.4th at p.
19
1332.
20
As to the first prong of the test, the factual similarities between the two representations are
21
distinct, although involving the same property. Two matters are not “substantially related” merely
22
if they involved the same subject matter. See, e.g. Kirk Corp. v. First Am. Title Co. (1990) 220
23
Cal. App. 3d, 790 (disqualification inappropriate even where a member of the law firm
24
representing the defendant in litigation had assisted the plaintiffs in preparing a declaration of
25
covenants, conditions, and restrictions for the same condominium project involved in the
26
litigation). Bessolo was criminally charged and civilly prosecuted for his improper alterations and
27
construction on his property adjacent to Butte Creel. It appears, as recently leamed by SLA,
28
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OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
~ -

Crowley substituted in as Bessolo’s counsel to defend Bessolo against a Complaint for

Preliminary and Permanent Injunction action by the County of Butte against Bessolo. In the

current action, SLA is defending Horn against Bessolo’s against regarding Horn’s actions in

restoring the property. These are distinct factual differences between the two cases, albeit it is
involving the same property.

While the property is at issue in Bessolo's Complaint against Horn, the legal similarities do

not exist. Two matters cannot be deemed “substantially related” unless, at a minimum, “the issues

are sufficiently similar to support a reasonable inference that the attorney in the course of the prior

representation was likely to have obtained confidential information material to the current

10 representation.” Freemont Indem. Co. v. Freemont Gen. Corp. (2003) 143 Cal. App.44th 50, 67

11 accord Santa Teresa Citizen Action Group vy. City of San Jose (2003) 114 Cal. App. 4th 689, 711

12 (even where “two representations involve the same general subject [matter], disqualification is not

13 required if the nature of the factual and legal questions posed are not similar.”) This is because the
14 purpose of the rule against being adverse to a former client in a substantially related matter is not

15 to prohibit related representations as such, but to prevent client information obtained in one matter

16 from being used against the client in a subsequent matter. See generally H.F. Ahmanson & Co. v.

17 Salomon Brothers, Inc. (1991) 229 Cal. App. 3d 1445, 1454-55,

18 The County of Butte filed a complaint against Bessolo to prevent Bessolo from continuing

19 unpermitted and unauthorized earthwork in progress at Bessolo’s property. In the court of the

20 criminal and civil against Bessolo, the County of Butte retained Hom to restore the property

ai pursuant to Lane’s Emergency Plan. It did so. Bessolo’s action is only based in nuisance from the

22 alleged improper implementation of said Emergency Plan. The theories are wholly separate and

23 discrete from each other even though the property is basis for both claims.
24 Lastly, Rodman was not even aware of Crowley representing Bessolo until Bessolo

25 produced 978 pages of documents to SLA on June 27, 2017, which was not in response to any

26 request for production by Horn. (Rodman Decl. §f[5-6.) This clearly evidences Rodman’s and

27 Littlefield’s involvement with his prior firm’s representation of Bessolo. Furthermore, as reasoned

28 above, Rodman and Littlefield worked on distinctly separate filed from Daniel Crowley and had
-1-
OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
no occasion to be enlightened as to the work being done by Crowley for Bessolo. (Rodman Decl.

6-8.) Therefore, Rodman and Littlefield did not at any point have any information, let alone

confidential information material, of or pertaining to Bessolo.
SLA argues the modified substantial relationship test applies here because as concluded in
Ochoa v. Fordel, Inc. (2007) 146 Cal-App.4th 898

(ithe modified substantial relationship test applies because this case involves (1) no
proof that the firm-switching attorney actually obtained confidential information
during the course of the prior attorney-client relationship, (2) the successive
representation of clients with adverse interests; and (3) a tirm-switching attomey
whose prior attorney-client relationship with the moving party was peripheral or
attenuated. (4dams, supra, 86 Cal.App.4th at p. 1340, 104 Cal.Rptr.2d 116; Jessen
10 v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698.

ul As with Ochoa, Rodman did‘not obtain confidential information during the court of
12 Crowley’s representation of Bessolo. (Rodman Decl. {{f6-8.) Furthermore, Crowley represented
13 Bessolo in 2011, five years prior to Rodman and SLA representing Horn in the current action by
14 Bessolo against Horn. The interests are diverse and not truly adverse. While the property is at
15 issue, the basis of the claims is diverse. The claim which Crowley represented Bessolo Butte
16 County filed a complaint for injunctive relief against Bessolo to stop him from performing work
17 on his property and to pay for restoration of his own property. The current claim is by Bessolo for
18 that restoration work. It appears from the documents Plaintiff produced in June 2017, Crowley
19 was retained to complete the requirements under the injunction, not for anything pertaining to the
20 work performed by Hom.
21 Therefore, there is no substantial relationship between Crowley’s prior representation of
22 Bessolo and SLA’s current representation of Hom. Rodman and Littlefield did not have any
23 relationship with Bessolo during their tenure at Crowley, it was peripheral and attenuated. It did
24 not exist. There is no true or actual conflict. Plaintiff failed in his moving papers to explain, let
25 alone evidence, any relationship other than uttering the words “substantial relationship,” and
26 therefore, Plaintiff's motion to disqualify must be denied.
27
28
“8+
OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
~ —

B. SLA Built an Ethical-Wall around Rodman and Littlefield

A law firm may seek to avoid an imputed disqualification by “building an ethical wall" or
erecting a screen between the newly acquired attorney (whose former connection with another

firm gives rise to the possibility of a conflict) and all other lawyers in the new firm who might

Jearn something from the new attomey that could harm a client of either firm.

Typical elemeuts of such an ethical wall are physical, geographic, and departmental

separation of attorneys; prohibitions against and sanctions for discussing confidential matters;

established rules and procedures. preventing access to confidential information and files;

procedures preventing a disqualified attorney from sharing in the profits of the representation; and

10 continuing education in professional responsibility. Henriksen v Great Am. Sav. & Loan (1992) 11

i CA4th 109, 116 n6.

12 The California Supreme Court, though it has not expressly altered the established rule of

13 vicarious disqualification, appears to have signaled its willingness to consider relaxing the rule of

14 automatic disqualification if a law firm can show that it has built an effective ethical wall around

15 the attorney with the conflict. See People ex rel Department of Corps. v SpeeDee Oil Change Sys.

16 (1999) 20 C4th 1135, 1151; Adams v Aerojet-General Corp., supra, 86 CA4th 1324, 1333,

17 SLA’s standard of practice when building an ethical wall is to prevent access to the file

18 containing case information. (Sims Decl. 7, 9.) Each employee has a unique login and password

19 allowing each employee access to the term server. (/d.) The physical files are located in lockable

20 cabinets in SLA’s Roseville office and maintained in the Roseville office. (Sims Decl. 10.)

2at Tn the instant case, not only is there a geographical and physical separation, but there is a

22 safeguard in place to eliminate any and all access to case information by Rodman. It should be

23 noted Littlefield is no longer employed by SLA, and therefore has no access to any firm

24 information, (Sims Decl. 11; Rodman Decl. 9.)

25 Rodman works in the SLA's Santa Rosa office, over 115 miles from SLA’s Roseville

26 office and he does not have a physical office in the Roseville office. (Sims Decl. 12.)

27 Furthermore, the physical file housing documents and information pertaining to the instant action

28 is located in SLA’s Roseville office. (Sims Decl. $10.) The physical files are maintained and
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OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
managed by the Roseville office. (/d.) Furthermore, any mail received by the firm is received by
and through the Roseville office. (Sims Decl. {f13.) Lastly, SLA denied permission to the folder on
SLA’s serve which contains the electronic files of the finn. The firm tests the accessibility by the
attorney/employee after being implemented, and it was confirmed Rodman does not have access to
the file containing the Bessolo information. (Sims Decl. 7, 9.)

Therefore, Rodman does not have any access to the physical file or electronic file

pettaining to the Bessolo matter, Not only is this permissible as noted above, but Plaintiff's

counsel indicated that if Rodman was walled off the issue would be resolved. (Sims Decl. 415.)
Given there is no actual conflict as no confidential information material was received by Rodman

10 or Littlefield, Plaintiff's motion must fail.

Il Cc. Plaintiffs’ Motion to Disqualify Should Be Denied as Tactical and
Prejudicial to Horn.
12
Courts are sensitive to the burden of changing counsel during litigation, as well as to the
13
tactical motivations for an opposing party making the motion, and are therefore more likely to
14
deny disqualification motions made close to trial. The judge may properly consider the possibility
15
that the disqualification motion was brought as tactical device to delay litigation. Comden v
16
Superior Court (1978) 20 C3d 906, 915. See also Western Continental Operating Co. v Natural
V7
Gas Corp. (1989) 212 CA3d 752, 763; Maruman Integrated Circuits, Inc. v Consortium Co,
18
(1985) 166 CA3d 443, 450,
19
Disqualification also "imposes a substantial hardship on the disqualified attorney's
20
client, who must bear the monetary and other costs of finding a replacement." Gregori v. Bank of
21
Am. (1989) 207 Cal. App. 3d 291, 300; accord Rhaburn v. Superior Court (2006) 140 Cal. App.
22
4th 1566, 1575-77, 1581 (observing that a "rigid rule of disqualification can create hardship" to
23
the client and that disqualification motions can be "abused as an improper tactical maneuver").
24
Accordingly, "disqualification motions should be subjected to particularly strict judicial scrutiny,"
25
Shurance v. Planning Control Int'l, Inc., 839 F.2d 1347, 1349 (9th Cir. 1988), and the radical
26
measure of disqualification should not be ordered except when absolute necessary. accord Johnson
27
v. Superior Court (1984) 159 Cal. App. 3d 573, 580 ("The right of a party to be represented in
28
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OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
litigation by the attorney of his or her choice is a significant right ... and ought not to be abrogated
in the absence of some indication the integrity of the judicial process will otherwise be injured."),
While the defense of Hom is a tri-partite. relationship with the insurance carrier, the
insurance carrier — who has a common interest with Hom — would be required to reassign the file
to another law firm if SLA is disqualified. That firm would have to review, analyze hundreds, if

not thousands, of documents, and discuss the case at length with Horn in order to properly defend

Horn. This would be a waste of time and resources of both the insurance carrier and for Horn (an

active business). Hom has answered hundreds of questions by counsel in aiding in its defense, to

have to redo this and explain the case to new counsel would be unjust and unfair in light of the

10 upcoming January 8, 2017, trial. Also, it would affect Horn’s ability to defend its Motion for

i Summary Judgment scheduled for November 17, 2017.

12 Based on the timing and lack of evidence to support a true conflict, Plaintiff's motion to

13 disqualify has the markings of a tactical decision to thrust this case into chaos just prior to Horn’s

14 Motion for Summary Judgment and Trial. This is supported by the recent statements wherein

15 Plaintiff's counsel noted Plaintiff wished to maintain the current trial date, and if Rodman and

16 Littlefield were quarantined from the file that it would be sufficient as Michelle Wiederhold

17 (Plaintiff improperly named another associate that has worked on the file, Tahmina Yassine) and

18 Horn’s co-counsel has done more work on the file (Sims Decl. 415.) SLA did just that and

19 informed Plaintiff of same. (Sims Decl. 7, 9, 14.) Plaintiff's counsel two months later opted to

20 renege on that indication, evidencing the appearance of a tactical ploy by Bessolo or Bessolo’s

21 counsel.

22 Further, based on the facts above, Bessolo’s motion to disqualify is untimely. A waiver of

23 the right to disqualify counsel may be implied when inexcusable delay in bringing the motion

24 causes substantial prejudice to the current client. River W., Inc. v Nickel (1987) 188 CA3d 1297,

25 1305. See also Liberty Nat'l Enters., L.P, v Chicago Title Ins. Co. (2011) 194 CA4th 839, 844.

26 Why did Bessolo’s counsel suggest walling off Rodman and wait two months to renege on such an

27 agreement? This is especially true after SLA did exactly what Plaintiff requested. and walled off

28 Rodman and Littlefield.
-U-
OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
It would be prejudicial to have Horn and its insurance carriers to switch firms only three

months prior to trial with a pending Motion for Summary Judgment prepared by SLA. Requiring
Horn to change counsel ‘at this late in litigation would require the continuation of trial. Plaintiff
may argue Horn has co-counsel and that is sufficient to representing the interest of Horn at trial.

However, SLA has been involved longer and taken the lead in defending Horn. SLA prepared

discovery and all motions filed on behalf of Horn. Hom is aware of the potential conflict and

agreed that SLA should remain its counsel. The same applies to Horn’s insurance carriers. It is

best for Horn to maintain the counsel it currently has with the upcoming mandatory settlement

conference, motion for summary judgment, and trial.

10 Plaintiff's Motion to Disqualify has the appearance of or is in fact tactical, delayed, and is

MW prejudicial to Horn. For the reasons stated above, Plaintiff's Motion must be denied.

{2 It. CONCLUSION
13 Plaintiff wholly fails to evidence an actual, peripheral, or even an attenuated conflict,
14 While it is true Rodman worked for Crowley, he has his own book of business, never worked on

15 Crowley’s files, and did not share case information with Crowley. More importantly, Rodman and

16 Littlefield did not obtain any confidential information material from Crowley representing
17 Bessolo.

18 Additionally, the subject matter and legal theories are not substantially related. Crowley

19 represented Bessolo in an injunction matter, to prevent further work by Bessolo and for restoration
20 of Bessolo’s property. The current action is by Bessolo against Horn for private nuisance
21 regarding Horn’s restoration of the property. While the property is the same, the legal theories are
22 wholly different.

23 This has the appearance of being tactical this close to trial and. could have easily been
24 brought shortly after being informed of the potential conflict. Rodman did his job and complied
25 with ethical rules of disclosing any potential conflict. Rodman and SLA did what is dictated by

26 code and case law, and by what Plaintiffs counsel requested recommendations. Yet, Plaintiff

27 waited two months to file the instant Motion. Further, it would be prejudicial to Hom and its

28 insurance carriers to have to appoint new counsel three months prior to trial, and approximately
-12-
OPPOSITION TO PLAINTIFFS' MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS.
COUNSEL TO DEFENDANTS
1 two months prior to Horn’s motion for summary judgment.

2 Therefore, Horn and SLA kindly request the court deny Plaintiff's motion to disqualify for

3 the foregoing reasons.

4 || Dated: October 6, 2017 SIMS, LAWRENCE & ARRUTI

6 By WAR
BO! ALE SIMS, JR.
MICHELLE WIEDERHOLD, ESQ
7 Attomeys for Defendant
8 R&R HORN, INC.

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-13-
OPPOSITION TO PLAINTIFFS’ MOTION TO DISQUALIFY THE SIMS, LAWRENCE & ARRUTI FIRM AS
COUNSEL TO DEFENDANTS
PROOF OF SERVICE
1, BEVERLY ALBRIGHT, certify and declare as follows:

1am over the age of 18 years, and not a party to this action. My business address is 1891 E.
Roseville Parkway, Ste, 180 ~ Roseville, CA. Iam employed in the County of Placer where this service
occurs.
On the date set forth below, following ordinary business practice, | served a true copy of the
foregoing document(s) described as: ,
OPPOSITION TO PLAINTIFF'S MOTION TO DISQUALIFY THE SIMS, LAWRENCE
& ARRUTI FIRM AS COUNSEL TO DEFENDANTS
c
(BY MAIL) I am readily familiar with my employer's normal business practice for collection and
processing of correspondence for mailing with the U.S. Postal Service. Correspondence so
collected and processed is deposited with the U.S. Postal Service that same day in the ordinary
course of business. I placed for deposit in the United States Postal Service in a sealed envelope,
10 with postage fully prepaid, to the addressee(s) below.
i
(BY PERSONAL SERVICE) | personally delivered the above document(s) by hand between 9:00
12 a.m, and 5:00 p.m. to the office of the addressee(s) below.

13 (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by
14 Federal Express an express service carrier, or delivered to a courier or driver authorized by said
express service carrier to receive such envelope(s) to be delivered by overnight delivery, with
1s delivery fees paid or provided for, addressed to the person(s) on whom it is to be served below.
r
16 (BY ELECTRONIC SERVICE) | transmitted via electronic service through LexisNexis to the
\7 offices of the addressee(s) below as stated on the attached service list on this date before 5:00 p.m.
Therese Cannata, Esq. Scott M. Hutchison, Esq.
18 Cannata, O'Toole, Fickes & Almazan Law Office Of David A. Wallis
19 100 Paine Street, Ste. 350 2251 Harvard Street, Suite 100
San Francisco, CA 94111 Sacramento, CA 95815
20 T: 415-409-8900 (916) 921-9353
F: 415-409-8904 Fax: (855) 214-7884
21 Counsel for Plaintiffs Co-Counsel for R&R Horn, Inc.
BY EMAIL ONLY
22
By (State) I certify and declare under penalty of perjury under the laws of the State of California that
23 the foregoing is true and correct.

C
|
24

Lex20
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Executed on: October 6, 2017
‘BEVERLY
EVERLY ALBRIGHT.
ALBRI ith
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RE: BESSOLO V. R&R HORN, ET At,
Burr: COUNTY SUPERIOR COURT Casé NO 16CV00793

Case Info

Judge

Tamara L. Mosbarger Track Judge’s New Case

Case No.

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Document Filed Date

November 17, 2017

Case Filing Date

May 25, 2016

County

Parties

Bessolo, John Felix Plaintiff
R and R Horn Inc Defendant
Sims, Bobby Dale, Jr. Attorney for the Defendant
Mark Fickes Attorneys for Plaintiffs
Therese Cannata Attorneys for Plaintiffs
Scott Hutchison Attorneys for Defendants
Michelle Wiederhold Attorneys for Defendants
Zachary Colbeth Attorneys for Plaintiffs
Matthew Salazar Attorney
Bruce Alpert Attorney
Gregory Einhorn Attorney
Vincent Lee Attorneys for Plaintiffs
Jordan Rodman Attorneys for Plaintiffs
Tahmina Yassine Attorneys for Defendants
Virginia Gingery Attorney

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Motion,Ex Parte: Bessolo, John Felix vs R and R Horn

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Parties