Opinion
B325579
06-25-2024
DECORA OWENS, Plaintiff and Appellant, v. KAISER FOUNDATION HEALTH PLAN, INC. et al., Defendants and Respondents
Gusdorff Law, Janet Gusdorff; Law Offices of Twila S. White, Twila S. White; Nguyen Theam Lawyers and Minh T. Nguyen for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza and Zena Jacobsen for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. 20STCV10684 Holly Fujie, Judge. Dismissed in part and affirmed in part.
Gusdorff Law, Janet Gusdorff; Law Offices of Twila S. White, Twila S. White; Nguyen Theam Lawyers and Minh T. Nguyen for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza and Zena Jacobsen for Defendants and Respondents.
RAPHAEL, J. [*]
INTRODUCTION
Decora Owens sued Kaiser Foundation Health Plan, Inc., Southern California Permanente Medical Group, Inc. (SCPMG), and Kaiser Foundation Hospitals (collectively Kaiser) for sexual harassment and other employment-related claims. Owens sought to depose Taniyah Scott, a nonparty witness employed by Kaiser, who in turn was represented by Cole Pedroza LLP. Although Cole Pedroza canceled Scott's deposition, Owens's counsel Twila S. White deposed Scott in Cole Pedroza's absence.
Kaiser moved to disqualify White and her law office on the ground White communicated with Scott, even though Scott was represented by Cole Pedroza, in violation of rule 4.2 of the State Bar Rules of Professional Conduct (Rule 4.2). Rule 4.2 generally proscribes communications by a lawyer "with a person the lawyer knows to be represented by another lawyer in the matter." On November 16, 2022, the trial court issued an order granting Kaiser's disqualification motion. It also granted a motion to stay the action on January 20, 2023.
On appeal, Owens contends the trial court abused its discretion in disqualifying White because the court's finding that Cole Pedroza represented Scott was not supported by substantial evidence. Owens also asserts the trial court abused its discretion in ordering disqualification based on White's contacts with Kenya Todd and Cherish Wilder, two other witnesses mentioned in the court's order. In addition, Owens contends the trial court improperly granted the motion to stay the action. She further asks this court to direct the trial court to reinstate references to White as her former and/or current counsel of record in the trial court's docket. We affirm the disqualification order and dismiss Owens's appeal from the stay order and her appeal related to her reinstatement request.
FACTUAL AND PROCEDURAL BACKGROUND
A. Owens's Complaint, Kaiser's Motion To Disqualify, and Nayri Jilizian's Supporting Declaration
1. The complaint
Owens filed a complaint against Kaiser and LaSalle Williams for sexual harassment and other causes of action. Owens alleged she was employed by Kaiser and worked under Williams, an employee of Kaiser Permanente Hospital South Bay Medical Center. White and her law firm, the Law Offices of Twila S. White, represented Owens.
2. Kaiser's motion to disqualify
On August 8, 2022, Kaiser, who was represented by Cole Pedroza and Cole Pedroza attorneys Kenneth R. Pedroza, Zena Jacobsen, Amy E. Rankin, and Nayri Jilizian, moved to disqualify White and her law firm from further representing Owens in the litigation. Kaiser sought disqualification on grounds that included White and her firm contacting and deposing Scott without the presence of counsel in violation of Rule 4.2. Kaiser also sought monetary and evidentiary sanctions. Kaiser supported its motion with the declarations of Jacobsen, Jilizian, and other witnesses. The declarations attached multiple exhibits, including deposition transcript excerpts and email correspondence.
In its motion, Kaiser argued that White had known since the start of defense witness depositions in December 2021 that Cole Pedroza represented the nonparty witnesses who were Kaiser employees. Kaiser stated that Cole Pedroza produced the witnesses for deposition at mutually agreeable dates coordinated by the law firm's attorneys, who prepared the witnesses for the depositions. According to Kaiser, Owens had already, before July 29, 2022, deposed 10 defense witnesses, all of whom, with the exception of Williams, were represented by Cole Pedroza.
Williams was represented by his own counsel, not Cole Pedroza.
Kaiser explained that, on July 29, 2022, Owens deposed three additional defense witnesses: one (Hazel Smith) noticed for 9:00 a.m.; another (Kelli Duncan) for 12:30 p.m.; and a third (Scott) for 3:00 p.m. Kaiser asserted that Duncan's deposition ran significantly longer than White had estimated. Kaiser argued, and excerpts of the Duncan deposition transcript showed, that Jacobsen, who defended Duncan's deposition, stated on the record during the Duncan deposition that Scott's deposition would be defended by Jilizian, whom Jacobsen identified as her colleague. At 4:20 p.m., Jacobsen also stated on the record that Kaiser was ending Duncan's deposition and that Scott would not be appearing for her deposition. Kaiser asserted that, although White knew Cole Pedroza not only represented Scott but also canceled Scott's deposition, White's office nevertheless contacted Scott; instructed Scott to turn off her cell phone so that Cole Pedroza could not contact her; and coerced Scott to appear for a deposition without Cole Pedroza. Kaiser asserted that, despite White's knowledge that ex parte communications with Scott were prohibited, White took advantage of Scott's ignorance of the law and deposed Scott in Cole Pedroza's absence.
3. Jilizian's declaration
In her declaration filed with Kaiser's motion, Jilizian averred that, on July 28, 2022, she met with Scott for about an hour and a half through an online virtual meeting platform to prepare Scott for the deposition set for the next day at 3:00 p.m. Scott had asked not only to meet with Jilizian to prepare for her deposition but also requested that Jilizian represent her at it. Jilizian told Scott that everything they discussed during their deposition preparation was confidential and protected by the attorney-client privilege.
On July 29, 2022, at 1:40 p.m., Jilizian called Scott about her deposition and told her that Jilizian would let her know when she should log on for her deposition. Scott told Jilizian that she had a "hard stop" at 5:00 p.m. because she needed to pick up her children. Jilizian continued to keep in touch with Scott throughout that day to provide updates about when Scott's deposition would be expected to start. For example, at 3:29 p.m., Jilizian called Scott to inform her that the deposition preceding hers was still ongoing. When Scott again said she had a hard stop at 5:00 p.m., Jilizian assured Scott she would be able to leave at 5:00 p.m. regardless of her deposition starting time.
Jilizian later called Scott and told her she should not log on for her deposition, which had been canceled. Jilizian reminded Scott that all of their conversations were privileged. About an hour later, Scott called Jilizian and asked why Jilizian had not been at her deposition as promised. Scott said that, after Jilizian informed her the deposition was canceled, somebody from White's office called her, told her that her deposition was court-ordered and she was required to appear, and instructed her to log on for the deposition and turn off her cell phone.
An excerpt of Scott's July 29, 2022 deposition transcript submitted with Kaiser's disqualification motion showed White's deposition of Scott took place remotely by video conference, commencing at 4:32 p.m. on July 29, 2022, without Cole Pedroza present.
B. Owens's Opposition to Kaiser's Disqualification Motion and Kaiser's Reply in Support of Its Motion
1. Owens's opposition to the motion to disqualify
On August 22, 2022, Owens filed her opposition, which was supported by White's declaration and exhibits. Owens argued that disqualification of White and her law firm was unwarranted because White did not know Scott was represented by counsel. Contending that Kaiser's attorneys lied about representing third party witnesses when they did not, Owens asserted that Scott denied being represented by counsel when White questioned her at her July 29, 2022 deposition. At the start of the deposition, White asked Scott if she "had any conversations with any of Kaiser's lawyers." Scott answered in the affirmative, and stated she had spoken with "Nayri" and "Amy." White then asked Scott when she had last spoken with the Kaiser lawyers. Scott, responded, "Today." White proceeded to ask Scott if "any of Kaiser's lawyers" represented Scott and whether Scott had retained any of Kaiser's lawyers to represent her. Scott answered "no" in response to both questions. Scott also stated that the Kaiser lawyers told her they would be present at the deposition to answer any questions, and they instructed her to tell the truth.
We presume Scott was referring to Nayri Jilizian and Amy Rankin.
In her supporting declaration, White stated there had not been any disclosure at any point during discovery that Scott was represented by Kaiser's counsel or any other attorney. Because of what she claimed to be Cole Pedroza's lies about its representation of witnesses, White said she sought proof of such representation. White also said she recently scheduled a call to speak with Wilder, a witness, but Wilder "did not respond when there was a meeting set up and after Kaiser's counsel[ ] were notified that Ms. Wilder's deposition was set by way of [ ] ex parte application, Kaiser's counsel[ ] now represent Ms. Wilder." White further averred she had spoken to Todd, another witness. She continued, "Kaiser's counsel[ ] recently learned of Ms. Todd's deposition and now represent Ms. Todd."
2. Kaiser's reply in support of the motion to disqualify
On August 26, 2022, Kaiser filed its reply, which Kaiser supported with supplemental declarations by Jacobsen and Jilizian and declarations by Wilder and Todd. Kaiser denied that its counsel had lied to anyone about the representation of witnesses. It argued that White's claim that she had not knowingly communicated with represented defense witnesses was disingenuous. Kaiser asserted that White communicated with Wilder and Todd after Kaiser had filed its motion to disqualify even though White had been informed they were represented by Kaiser's counsel. Kaiser further argued that any potential prejudice to Owens in retaining new counsel could be mitigated with a continuance of trial and that Owens's association of Minh T. Nguyen and Nguyen Lawyers, ALC as additional counsel on August 25, 2022, could alleviate any potential prejudice and showed that Owens could readily obtain counsel.
On August 25, 2022, Owens filed a notice of association of counsel, informing the court and all parties that Nguyen and his law firm, Nguyen Lawyers, ALC, were cocounsel for Owens.
In her declaration dated August 25, 2022, in support of Kaiser's reply, Wilder averred that she was an employee at Kaiser Permanente South Bay Medical Center. In July 2022, Wilder received a phone call from White, who claimed to be calling on Kaiser's behalf and said she wanted to speak with Wilder. Wilder was confused because she had not heard of White before. Throughout July and August 2022, White continued to attempt to contact Wilder by phone several times from different phone numbers. When Wilder answered one of White's calls, White began to ask Wilder questions about her work at the South Bay Medical Center. Wilder told White she did not wish to proceed with the conversation. Although Wilder understood by now that White was Owens's counsel, White had not told Wilder she was Owens's attorney when White first called in July. As of July 2022, Wilder had already been in communication with Cole Pedroza. Wilder concluded her declaration by stating Cole Pedroza represented her for purposes of Owens's case.
Exhibits attached to the declarations in support of Kaiser's reply included an August 17, 2022 email from Jacobsen to White stating that Wilder was a represented witness and that Jacobsen would be representing Wilder at her deposition. Jacobsen in her email asked White not to contact Wilder. Kaiser also submitted as an exhibit an August 22, 2022 text message that Wilder received from White. In her August text message, White stated that she represented Owens, explained that Owens was an employee of Kaiser in a lawsuit, and asked Wilder whether it was true that Kaiser's lawyers represented Wilder as they claimed.
Todd in her declaration dated August 22, 2022, averred that she was a former employee of SCPMG who had worked at the South Bay Medical Center. Around August 2021, Todd received a voicemail message from White. When Todd returned White's call, Todd discovered that White was Owens's counsel. White later began contacting Todd again, and a member of White's staff provided Todd with a declaration written by White and/or another member of White's office that they wanted Todd to sign. Todd, however, refused to sign the declaration because of inconsistencies. Throughout July and August 2022, White contacted Todd several times by phone. When Todd answered some of the calls, White began asking her questions about her time at the South Bay Medical Center. Todd told White several times she did not wish to proceed with the conversation. As of August 2022, Todd had been in communication with attorneys at Cole Pedroza. Todd concluded her declaration by stating Cole Pedroza represented her for purposes of Owens's case.
Kaiser submitted as an exhibit an August 18, 2022 email from Jilizian to White stating that Todd was a represented witness and that Cole Pedroza would be representing Todd at her deposition. In her email, Jilizian asked White not to contact Todd. Kaiser also submitted as an exhibit an August 22, 2022 text message that Todd received from White. White's text message stated that Kaiser's attorneys "are saying they represent you" and asked Todd if "that [was] true."
C. The Trial Court's Tentative Ruling, the September 2, 2022 Hearing, and Additional Discovery and Briefs by the Parties
On September 1, 2022, the trial court issued a tentative ruling granting Kaiser's motion insofar as it requested the disqualification of White and her law office. The next day, the court heard argument on the motion to disqualify. Although the court stated it "saw here what seemed to be a rather blatant disregard for the concept of people being represented by counsel," it nevertheless recognized it was "a very serious thing to disqualify counsel." Expressing its desire to allow further briefing and discovery, including depositions, on the issues raised by Kaiser's motion, the court continued the hearing. It also stated it wanted to see full, not partial, deposition transcripts.
The parties conducted additional depositions. Scott was deposed on September 29, 2022, and November 2, 2022; Todd on October 4 and 14, 2022; and Wilder on October 12, 2022. Other witnesses were also deposed. Jacobsen and Jilizian asked questions on Kaiser's behalf, and Nguyen questioned witnesses on behalf of Owens. Scott was represented at her September and November depositions by Maryann Gallagher of the Law Offices of Maryann P. Gallagher.
At her September 2022 deposition, Scott testified that she first met Gallagher around the end of August 2022. She initially testified that no one, including White, provided Gallagher's name to her and that she "found" Gallagher. She stated she "came across" Gallagher through online research and did not recall what she had entered that led her to Gallagher. Scott, however, later admitted that White had first provided Gallagher's phone number to her before she conducted her online search and that was how she had found Gallagher's website.
On November 8, 2022, the parties filed supplemental briefs, along with additional evidence. Kaiser's additional evidence included emails between Scott and Cole Pedroza that were Scott deposition exhibits. Kaiser also lodged deposition transcripts with the court that same day.
D. Scott's Deposition Testimony
According to Scott's deposition testimony, as early as April 2022, Scott had a meeting with Cole Pedroza attorney Amy Rankin, who told Scott that she had a deposition coming up. Before the meeting, Rankin sent Scott an email confirming that their meeting would be held remotely. Scott later replied that she was "waiting to be connected, unfortunately no one has connected." Because of an initial technical difficulty, the meeting was held telephonically. At the meeting, Rankin answered Scott's questions about the deposition.
Scott testified about additional emails she exchanged with Cole Pedroza, including emails exchanged with Jacobsen in July 2022. For example, in an email dated July 11, 2022, Jacobsen explained she was one of the partners working with Rankin on the case; reminded Scott that White asked to take Scott's deposition; said Cole Pedroza would "make sure [Scott] is prepared for her deposition" and planned to defend her at her deposition; asked Scott if she was "generally available for deposition and preparation" during specified timeframes; and concluded by asking Scott to let Jacobsen know if Scott had any questions or concerns. The subject line of Jacobsen's email to Scott stated, "Confidential Attorney-Client Privileged Communication." Scott replied with an email providing dates on which she was unavailable because of a vacation and raised no other concerns in response to Jacobsen's email. Scott forwarded all email messages about the deposition and from Cole Pedroza to her personal email account so she could access them from her home.
Scott also testified she provided Cole Pedroza's staff with her cell phone number because she wanted to be contacted about a meeting in preparation of her deposition. She said she was nervous about her deposition with White and recalled having a conversation with Jilizian before her deposition at which Jilizian explained deposition rules, including her ability to take breaks. She recalled Jilizian told her that if White became inappropriate during her deposition, Jilizian would be there to address it with White. She also spoke with Jilizian on the day of her July 29, 2022 deposition and told Jilizian that her deposition could not go past 5:00 p.m. Jilizian reassured her that Cole Pedroza would ensure she would be free to go at 5:00 p.m., "no matter what."
Scott further testified that Cole Pedroza at one point told her the deposition would be starting late and Jilizian later called to say her deposition had been canceled. She was confused when someone from White's office called her and instructed her to log on for her deposition. When she logged on, she assumed Jilizian would be there: Jilizian had told Scott she would be there, so Scott expected Jilizian would do what she said. On August 3, 2022, Scott wrote Jilizian an email from her personal email account in which she said, "You didn't show up to this deposition as promised. I feel that you . . . have failed me." Scott testified that Jilizian was to interrupt or intervene "if things got too personal with the other attorney," so she felt Jilizian had "failed" her by not appearing at her deposition.
E. The November 16, 2022 Hearing and the Court's Order Disqualifying White and Her Law Firm
On November 15, 2022, the trial court issued another tentative ruling granting Kaiser's motion insofar as it sought to disqualify White and her law office. The next day, after hearing argument from counsel, the court stated its tentative ruling would be its final ruling. Explaining it had "spent a lot of time dealing with this issue," the court stated, "[F]rankly, I don't know that I've ever disqualified counsel before, but I feel that it's warranted in this case." On November 16, 2022, the court issued its order granting the motion to disqualify White and her law firm.
As set forth in the November 2022 tentative order, the court declined at the time to impose sanctions.
Owens timely filed a notice of appeal from the trial court's November 16, 2022 order.
DISCUSSION
A. Applicable Law on Disqualification Motions and Standard of Review
Code of Civil Procedure section 128, subdivision (a)(5), provides that a court has the power "[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto." "A trial court's authority to disqualify an attorney derives from" that power. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee Oil); accord, In re Charlisse C. (2008) 45 Cal.4th 145, 159; Jarvis v. Jarvis (2019) 33 Cal.App.5th 113, 129.) "'Ultimately, disqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility.' [Citation.] As [the Supreme Court has] explained, however, '[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.'" (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846; see Militello v. VFARM 1509 (2023) 89 Cal.App.5th 602, 612 ["'[t]he important right to counsel of one's choice must yield to ethical considerations that affect the fundamental principles of our judicial process'"].) "Although we do not disqualify lawyers for every instance of misconduct, ethical breaches will result in disqualification where it is necessary 'to mitigate the unfair advantage a party might otherwise obtain if the lawyer were allowed to continue representing the client.'" (Doe v. Superior Court (2019) 36 Cal.App.5th 199, 205.)
"'Generally, a trial court's decision on a disqualification motion is reviewed for abuse of discretion. [Citations.]' [Citation.] As to disputed factual issues, a reviewing court's role is simply to determine whether substantial evidence supports the trial court's findings of fact; 'the reviewing court should not substitute its judgment for . . . express or implied [factual] findings [that are] supported by substantial evidence.'" (In re Charlisse C., supra, 45 Cal.4th at p. 159; accord, Sundholm v. Hollywood Foreign Press Assn. (2024) 99 Cal.App.5th 1330, 1341; see Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 ["The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious," fns. omitted].)
Under the "deferential" substantial evidence standard of review, "'"[a]ll factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment."'" (Trinity v. Life Ins. Co. of North America (2022) 78 Cal.App.5th 1111, 1121; see Nissan Motor Acceptance Cases (2021) 63 Cal.App.5th 793, 818 ["We must not review the evidence to determine whether substantial evidence supports the losing party's version of the evidence. Instead, we must determine if there is any substantial evidence, contradicted or uncontradicted, to support the trial court's findings"].) "'"'We may not reweigh the evidence and are bound by the trial court's credibility determinations.'"'" (Espinoza v. Hepta Run, Inc. (2022) 74 Cal.App.5th 44, 52; accord, Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334 ["'questions as to the weight . . . of the evidence, the construction to be put upon it, the inferences to be drawn therefrom, the credibility of witnesses . . . and the determination of [any] conflicts and inconsistencies in their testimony are matters for the trial court to resolve'"].) "'The testimony of a single witness may be sufficient to constitute substantial evidence.'" (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613; accord, Sav-On Drug Stores,Inc., at p. 334 ["[e]vidence of even one credible witness 'is sufficient for proof of any fact'"].)
B. Substantial Evidence Supported the Trial Court's Finding That Cole Pedroza Represented Scott
Rule 4.2, at subdivision (a), provides, "In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person[ ] the lawyer knows[ ] to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer." "Subdivision (a) tells lawyers they cannot communicate directly with people they know are currently represented by an attorney unless the attorney agrees." (Doe v. Superior Court, supra, 36 Cal.App.5th at p. 205.) "'Contact with represented parties is proscribed to preserve the attorney-client relationship from an opposing attorney's intrusion and interference.'" (Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1197.)
In disqualifying White and the Law Offices of Twila S. White, the trial court found White violated Rule 4.2: It found that Cole Pedroza represented Scott, at minimum, for her July 29, 2022 deposition and that, although White had actual knowledge of Cole Pedroza's representation of Scott, White communicated directly with Scott without Cole Pedroza's consent. Owens on appeal contends the trial court abused its discretion in disqualifying White and her law firm because, she asserts, substantial evidence did not support the finding that Cole Pedroza represented Scott. Specifically, she asserts the unilateral declaration of a Cole Pedroza attorney that the firm would be defending Scott at her deposition was inadequate to create an attorney-client relationship.
"[A]n attorney's unilateral declaration regarding representation cannot, by itself, create an attorney-client relationship when none otherwise exists"; rather, the relationship is created by contract. (Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 723, 729 (Koo).) The contract, however, need not be formal but may be implied or informal, and the existence of an attorney-client relationship can be inferred from the conduct of the parties. (See, e.g., Lister v. State Bar (1990) 51 Cal.3d 1117, 1126 ["'No formal contract or arrangement or attorney fee is necessary to create the relationship of attorney and client. It is the fact of the relationship which is important'"]; Davis v. State Bar (1983) 33 Cal.3d 231, 237 ["[n]o formal arrangements are necessary to establish an attorney-client relationship [citation], especially where, as here, the existence of the relationship is demonstrated and reinforced by the attorney's own conduct"]; Fox v. Pollack (1986) 181 Cal.App.3d 954, 959 ["the attorney-client relationship is created by some form of contract, express or implied, formal or informal"]; see also Civ. Code, § 1621 ["[a]n implied contract is one, the existence and terms of which are manifested by conduct"].) "'When a party seeking legal advice consults an attorney at law and secures that advice, the relation of attorney and client is established prima facie.'" (SpeeDee Oil, supra, 20 Cal.4th at p. 1148, italics omitted; accord, Wood v. Superior Court (2020) 46 Cal.App.5th 562, 581 ["Ordinarily, when a party seeks legal advice from a lawyer, and the lawyer provides such advice, an attorney-client relationship is formed"].)
Moreover, neither compensation nor the expectation of compensation is required to create an attorney-client relationship. (Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 444-445.)
Here, there was substantial evidence that Cole Pedroza represented Scott for purposes of her July 2022 deposition. Jilizian in her declaration averred that Scott had asked Jilizian to meet with her to prepare her for, and represent her at, her deposition and that Jilizian had prepared Scott for the deposition for well over an hour. Although an attorney's unilateral declaration regarding representation is insufficient on its own to create an attorney-client relationship, Jilizian's declaration provides evidence of an attorney-client relationship, not a unilateral attempt to create one. Jilizian's declaration is a far cry from the unilateral declarations regarding representation that have been found insufficient.
For example, in Koo, supra, 109 Cal.App.4th at pages 723 to 724, Timothy Freudenberger, an attorney representing defendant Rubio's Restaurants, Inc., declared that his law firm represented both Rubio's and Rubio's managers in a class action alleging that Rubio's failed to pay its salaried managers overtime compensation. In his declaration, Freudenberger explained that, because Rubio's retained his firm to represent its managers in connection with the lawsuit, the firm represented all current managerial employees of Rubio's. Freudenberger later clarified that his firm represented Rubio's only and its representation of Rubio's managers was solely in their representative capacity, not in their individual capacity. (Id. at pp. 725-727.) The trial court nevertheless disqualified Freudenberger's law firm from further participation in the action. The trial court also denied Rubio's motion for reconsideration of the disqualification order even though Rubio's explained that its counsel only represented Rubio's, never had any contact with any of Rubio's managers, never provided those individuals with any advice as to their rights in the litigation, and had no attorney-client relationship with the managers. (Id. at pp. 727-728.)
The Court of Appeal in Koo reversed the disqualification order. Although the plaintiffs argued the trial court had properly disqualified Rubio's counsel for representing clients with conflicting interests, the Court of Appeal disagreed. It concluded there was no attorney-client relationship between Freudenberger's law firm and Rubio's managers. (Koo, supra, 109 Cal.App.4th at pp. 728-729.) Explaining that an attorneyclient relationship is not created by the unilateral declaration of one party to the relationship, the Court of Appeal determined that Freudenberger's declaration alone was not enough to create an attorney-client relationship. It stated, "Freudenberger's loose language in that declaration cannot serve to create an attorneyclient relationship if no express or implied contract in fact existed between [the law firm] and the individual managers. There is no evidence that the individual managers agreed to be represented by" the firm. (Id. at p. 729.)
Similarly, in Doe v. Superior Court, supra, 36 Cal.App.5th 199, a case in which plaintiff Jane Doe sued Southwestern Community College District and other defendants for sexual harassment and related claims, the trial court granted the motion to disqualify one of Doe's attorneys for contacting Andrea P., a percipient witness who was a District employee. (Id. at pp. 202-203.) Doe petitioned for a writ of mandate, and the Court of Appeal granted the writ petition in part on the ground there was no evidence to support a finding that Andrea was a represented person for purposes of Rule 4.2(a). The Court of Appeal explained that the District's attorney Matthew Wallin in a declaration "merely states that after [Andrea's] deposition was noticed, he communicated with Andrea 'that the District would provide her with representation' and that she 'never informed me that she did not want District representation.'" (Doe, at p. 206.) The Court of Appeal determined that the defendants "had no right to compel Andrea to accept their offer of representation" and Andrea's "silence in response to the District's offer" did not constitute an agreement to be represented by Wallin or anyone else. (Ibid.)
Unlike Wallin's declaration in Doe v. Superior Court, supra, 36 Cal.App.5th 199 and Freudenberger's declaration in Koo, supra, 109 Cal.App.4th 719, neither of which provided any evidence that the purported clients themselves ever expressly or impliedly agreed to representation, Jilizian's declaration establishes that Scott herself agreed to have Jilizian represent her, even if only for purposes of her July 2022 deposition. Moreover, Cole Pedroza supported its disqualification motion not only with Jilizian's declaration, but also with other evidence, including excerpts of Scott's deposition transcripts indicating Scott, by her conduct, had impliedly agreed to have Cole Pedroza represent her at, and in preparation for, her July deposition.
Owens points to excerpts of Scott's deposition transcripts in which Scott indicates she was not represented by Cole Pedroza and argues that such testimony rebuts Kaiser's evidence otherwise. The trial court, however, found that "the evidence strongly calls into question whether Scott's answers were fully responsive to White's inquiries and whether Scott, who is not an attorney, fully understood the questions and their relationship to the parties' counsels' respective legal obligations, notwithstanding their facially straightforward presentation." The court explained that Scott's responses that she was not represented by counsel are belied by her statements that she had been in contact with Jilizian earlier that day and that she had been informed that Cole Pedroza would assist her during the deposition. Further, the court noted, Cole Pedroza also coordinated the timing of Scott's deposition. The trial court also explained that Scott's subsequent deposition testimony (while Gallagher represented her) in which she disavowed her relationship with Cole Pedroza did "not establish that she was not represented by [Cole Pedroza] when White contacted her on July 29, 2022 . . . or otherwise contradict that [Cole Pedroza] did in fact represent her for at least the limited purpose of that deposition." Owens argues that defending a witness at her deposition by itself does not create an attorney-client relationship. In support of that argument, Owens relies on Tuttle v. Combined Ins. Co. (E.D.Cal. 2004) 222 F.R.D. 424. In Tuttle, however, the district court relied on federal case law-and primarily a Third Circuit Court of Appeals case that did not address California state law (In re Bevill, Bresler &Schulman Asset Management Corp. (3d Cir. 1986) 805 F.2d 120)-in deciding whether an attorney-client relationship existed. (See Tuttle, at p. 429 ["[h]ere, none of the Bevill factors which support the existence of an attorney/client relationship are present"].) Tuttle does not bind us. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 190 ["[d]ecisions of lower federal courts interpreting federal law are not binding on state courts"].)
Moreover, Tuttle did not make a distinction between defending a deposition and generally representing someone in deciding whether an attorney-client relationship existed. Rather, in Tuttle, the district court determined there was no attorneyclient relationship in part because there was "no evidence that [the purported client] ever approached [the attorneys claiming to represent her] for the purpose of seeking legal advice." (Tuttle, supra, 222 F.R.D. at p. 430; see id. at p. 429 ["[t]he employee must specifically request the personal representation"].) In contrast, as discussed, there was evidence in the instant case that Scott herself sought to be represented by Cole Pedroza.
In sum, there was substantial evidence to support the finding that Cole Pedroza represented Scott.
C. The Trial Court Relied on White's Contacts with Todd and Wilder To Show White Had Actual Knowledge She Was Communicating with Represented Witnesses
In its November 16, 2022 order, the trial court, referring to White's contact with Todd and Wilder, found that after Kaiser filed its disqualification motion, "White continued to contact witnesses after [Cole Pedroza] explicitly told her that they were represented and directed her to stop contacting them." The court further stated, "While plaintiff's supplemental evidence demonstrates that White's ex parte communications with Todd and Wilder were limited to learning of their representation, the Court finds that the record sufficiently demonstrates that White had actual knowledge that the aforementioned three witnesses were represented by counsel once [Cole Pedroza] directly told her as much, and that she thereafter violated Rule 4.2 by contacting [the witnesses] about the representation."
In the next paragraph of its order, in discussing the reason it found disqualification warranted, the trial court, citing Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 607 to 608, focused solely on evidence obtained during Scott's deposition and found it reasonably likely to have a "substantial continuing effect on future judicial proceedings because of the potential for White to proceed in the litigation with the knowledge of the testimony that Scott provided without the benefit of oversight and objections by counsel." The court continued, "It is reasonably likely that the ex parte deposition places White in a different position than she would have been had Scott had counsel present during the deposition." Owens argues that the court's silence as to the effect, if any, of White's communications with Todd and Wilder shows disqualification was improper and constituted an abuse of discretion. (See Chronometrics, at p. 607 ["If . . . the court's purpose is to punish a transgression which has no substantial continuing effect on the judicial proceedings to occur in the future, neither the court's inherent power to control its proceedings nor Code of Civil Procedure section 128 can be stretched to support the disqualification"].)
The court's order is reasonably construed as concluding that disqualification was warranted solely based on the effect of White's communications with Scott, with White's communications with Todd and Wilder providing additional support for White's actual knowledge that she was contacting represented witnesses in violation of Rule 4.2. Indeed, Todd and Wilder were not mentioned in the parties' trial court briefs until Owens's disqualification opposition, which argued that White did not know Scott was represented by counsel. Owens on appeal does not argue a trial court may not rely on the effect of improper communications with only one witness to justify disqualification. Nor does she argue, much less show, the trial court abused its discretion in concluding that taking the deposition of Scott without counsel's presence gave White an unfair advantage.
"[O]n appeal we presume the trial court's order is correct, indulge all presumptions in favor of that correctness, and resolve all ambiguities in favor of affirmance." (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 889.)
Owens does not challenge the trial court's finding that White had actual knowledge of Scott's representation by counsel, other than to argue that, because there was no attorney-client relationship between Scott and Cole Pedroza, White could not have had actual knowledge of the representation.
D. Substantial Evidence Supported the Finding That Todd and Wilder Were Represented by Counsel at the Time White Communicated with Them
Owens contends no substantial evidence supported the finding that Cole Pedroza represented Todd and Wilder when White texted those two witnesses. She asserts the trial court thus abused its discretion in concluding White had actual knowledge Todd and Wilder were represented at the time White communicated with them.
The evidence, however, shows that a Cole Pedroza attorney emailed White on August 17, 2022 (as to Wilder) and on August 18, 2022 (as to Todd) to inform White that Wilder and Todd were represented witnesses and to request that White not contact them. White nevertheless texted Wilder and Todd on August 22, 2022. Moreover, at her deposition, Todd testified that White contacted her on August 22 after Todd had already asked Cole Pedroza to represent her. Similarly, at her deposition, Wilder testified that she agreed to have Cole Pedroza represent her in July 2022. Substantial evidence thus supported the finding that Cole Pedroza represented Todd and Wilder at the time White communicated with them.
Pointing out that Rule 4.2(a) proscribes communicating with a represented person "about the subject of the representation," Owens further contends White's text messages to Todd and Wilder asking them to confirm whether they were represented by counsel does not fall within the scope of that provision. The trial court found that after Kaiser filed the disqualification motion, "White continued to contact witnesses [Todd and Wilder] after [Cole Pedroza] explicitly told her that they were represented and directed her to stop contacting them." The court explained, "While Wilder and Todd may not have been represented by counsel during their initial communications with White, White was eventually told that both had become represented by [Cole Pedroza] and thereafter continued to contact both witnesses." While the trial court did mention White's contacts with Todd and Wilder, it found that White gained an unfair advantage based only on the July 29, 2022 deposition of Scott. Whether White's contacts with Todd and Wilder complied with all the other requirements of Rule 4.2 (such as whether the contacts were about the subject of the representation) is immaterial. Owens does not argue a trial court may not rely on the effect of improper communications with only one witness to justify disqualification.
E. Owens Forfeited Her Contention That Failure To Reverse the Trial Court's Disqualification Order Would Impose a Substantial Hardship
Owens contends on appeal that if the trial court's disqualification order is not reversed, she would suffer substantial hardship. Owens, however, fails to support that conclusory contention with any citations to the appellate record. She points to no evidence presented to the trial court supporting her claim that White's disqualification would result in a significant financial burden. Her contention is forfeited. (See, e.g., Centex Homes v. St. Paul Fire &Marine Ins. Co. (2018) 19 Cal.App.5th 789, 796-797 [if no record citations support an appellant's argument, the reviewing court may treat it as forfeited]; see also People v. Pearson (1969) 70 Cal.2d 218, 221, fn. 1 [matters not before the trial court may not be considered by the reviewing court].)
G. Owens's Appeal of the Order Staying the Action and Relating to Her Request To Reinstate References to White in the Trial Court's Docket Must Be Dismissed
On December 1, 2022, Owens filed her notice of appeal from the disqualification order. On December 2, 2022, she filed a notice of stay of that order, asserting that an appeal of an attorney disqualification order automatically stays its enforcement. On January 12, 2023, Owens filed a "Request for Reinstatement of Twila White to Court Docket," which asserted that the court had removed any references to White as Owens's former and/or current counsel of record from the court's docket for the case and argued that, because disqualification orders are stayed pending appeal, references to White as her counsel of record should not have been removed from the docket.
On December 22, 2022, pursuant in part to Code of Civil Procedure section 916, SCPMG moved for a stay of the action pending the resolution of Owens's appeal. On January 20, 2023, the court granted SCPMG's stay motion.
On November 16, 2022, the trial court granted a motion for summary judgment as to the Kaiser entities other than SCPMG.
On appeal, Owens contends that the trial court erred in granting a stay of all proceedings, rather than only enforcement of the disqualification order, and asks this court to lift the stay of the action. She also asks this court to direct the trial court to update its docket to reinstate references to White as Owens's counsel of record. Pointing out the trial court's docket makes no references to White as either her current or former counsel of record, she argues the court's removal of such references violates the automatic stay of enforcement of the disqualification order pending its appeal.
Owens, however, already raised those issues in a writ petition filed with this court. We considered and denied that petition in March 2023.
In any event, in her notice of appeal Owens only identified the November 16, 2022 disqualification order. She did not indicate she was appealing the trial court's January 20, 2023 order granting SCPMG's motion for stay of the action. Similarly, her notice of appeal did not mention any trial court order on her January 12, 2023 request to reinstate references to White in the trial court's docket. Thus, setting aside whether those orders, if any, would constitute appealable orders under Code of Civil Procedure section 904.1, Owens's failure to mention them in her notice of appeal deprives this court of jurisdiction to review them. (See Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504 [appellate court's "[j]urisdiction . . . is limited in scope to the notice of appeal"]; see also Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173 ["[t]he policy of liberally construing a notice of appeal in favor of its sufficiency [citation] does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all"].) We thus dismiss Owens's appeal of the January 20, 2023 order staying the action, as well as her appeal relating to her January 12, 2023 request to reinstate references to White as her former and/or current counsel of record in the trial court's docket.
In her appellate briefing, Owens asserts that there was no order on her request to reinstate references to White in the trial court's docket, and we are aware of none in the appellate record. We observe Owens's request did not indicate any hearing date and was filed after SCPMG moved to stay the action.
DISPOSITION
Owens's appeal of the trial court's order granting SCPMG's motion to stay the action, as well as her appeal relating to her request to reinstate references to White as her counsel of record in the trial court's docket, are dismissed. We affirm the order granting Kaiser's motion to disqualify White and the Law Offices of Twila S. White. Kaiser is entitled to recover its costs on appeal.
We concur: SEGAL, Acting P. J. FEUER, J.
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.