BLACK v. COUNTY OF ORANGE

No. G053643.

MARK BLACK, Plaintiff and Respondent, v. COUNTY OF ORANGE, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.


Attorney(s) appearing for the Case

Wagner & Pelayes, Marty E. Zemming , Risa Christensen and Dennis E. Wagner for Defendant and Appellant.

Fem Law Group, F. Edie Mermelstein , Samantha Hall-Jones ; Rizio Law Firm, Darren M. Pirozzi , and Gregory Rizio for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

IKOLA, J.

Plaintiff Mark Black, a Tustin police officer, alleges he suffered injuries when a plastic bottle in a trash can exploded while he was at the Orange County jail delivering an arrestee for booking. Black sued the County of Orange (the County) for his injuries. Both sides sought the assistance of expert witnesses to determine the cause of the explosion.

The trial court entered an order disqualifying the County's expert witness, Tom Maricich and the County's attorneys, Wagner & Pelayes. The court found Maricich improperly consulted Neil Spingarn in formulating his opinions after Spingarn had previously undergone a retention interview with Black's counsel during which confidential information concerning the facts and theories of Black's case was disclosed. On appeal the County contends: (1) the trial court erred in finding confidential information materially related to the case was provided to Spingarn by Black's counsel; (2) it rebutted the presumption that confidential material was disclosed by proving the nonexistence of the presumed fact; and (3) Maricich's disqualification should not automatically require disqualification of Wagner & Pelayes. We disagree and affirm.

FACTS

Black's Evidence In Support Of The Disqualification Motion

Black relied on the declarations of three attorneys from Rizio & Nelson; Gregory Rizio, Aaron Hicks, and Darren Pirozzi, as well as several exhibits in support of his motion.

According to Hicks and Pirozzi, on January 29, 2015, they visited S & N Labs to meet with its president, Neil Spingarn. Hicks was meeting with Spingarn to discuss a separate case, but Pirozzi came along so he could explain the facts of Black's case and retain Spingarn as an expert in Black's case. After Hicks's discussion with Spingarn, Pirozzi expressed an interest in retaining Spingarn, and Spingarn expressed an interest in being retained. In Hicks's presence, Pirozzi discussed the facts of this case with Spingarn and disclosed counsel's theories of the case, concerns, perceived strengths, and perceived weaknesses. Spingarn then offered his opinions and theories of the case. The discussion occurred in Spingarn's office, and Spingarn, Pirozzi, and Hicks were the only people present. Based on the location, information discussed, and Rizio & Nelson's ongoing confidential relationship with Spingarn, Hicks understood the information discussed was confidential and subject to protection from subsequent disclosure. At the end of the interview, Pirozzi told Spingarn that Rizio & Nelson would retain him as an expert in Black's case. However, they never did.

Attorney Rizio's declaration attaches six exhibits: (1) a March 26, 2015 e-mail from Risa Christiansen to Pirozzi; (2) a May 29, 2015 e-mail from Christiansen to Pirozzi; (3) Spingarn's July 23, 2015 "Report of Analysis"; (4) Spingarn's August 24, 2015 "Additional Report of Analysis"; (5) Spingarn's January 21, 2016 analysis; and (6) excerpts from Maricich's deposition transcript.

The March 26, 2015 e-mail reveals Christensen, an attorney with Wagner & Pelayes, e-mailed Pirozzi stating she had just learned both sides had retained or intended to retain Spingarn and suggested neither side should use Spingarn as an expert. She stated it would not be ethical, prudent or reasonable for either firm to use him. The e-mail included the following chronology. Wagner & Pelayes contacted Spingarn's lab on March 10, 2015 to inquire about retaining an expert to conduct the testing on the bottle contents. They spoke to Spingarn and told him about the incident and advised him they represent the County. Spingarn commented the incident sounded familiar, but he would not commit to working on the case until he confirmed he was not working on the case for another party. On March 16, 2015, Spingarn represented he checked his records and confirmed he had not been retained by another party and agreed to work with Wagner & Pelayes. He said he had heard something about the incident but believed he read about it in the newspaper. Wagner & Pelayes gave him plaintiff's name and Spingarn agreed to work for the County.

To contradict Spingarn's contention he was familiar with the facts of the case when contacted by Wagner & Pelayes, Hicks and Pirozzi declared as of March 16, 2015, the facts giving rise to this lawsuit had never been featured in the media.

The May 29, 2015 e-mail is a string between Christensen, Pirozzi, and attorney Dennis Wagner of Wagner & Pelayes. Christensen informed Pirozzi her expert needed to send a sample to S & N Labs because he did not have his own lab. Wagner suggested if both experts use the same lab, they should disguise the case names. Christensen said S & N Labs had to do the testing, because every expert she contacted used that lab and she could not find one that did not. She said they would send the sample under the expert's name without indicating who it was for.

Pirozzi declared that on August 10, 2015, attorneys and experts from both firms visited S & N Labs together where Spingarn equally divided the plastic bottle. Even so, Pirozzi declared Rizio & Nelson never agreed to Spingarn being involved in any way as it would plainly negate the parties' agreement to exclude him from the matter. Rizio & Nelson never agreed to Spingarn running tests, consulting or collaborating with Maricich, or preparing detailed analyses, reports, or interpretations of the relevant evidence.

On February 3, 2016, an attorney from Rizio & Nelson deposed Maricich. The transcript from Maricich's deposition revealed he used S & N Labs for the lab analysis upon which he based his opinion. He testified he consulted with Spingarn regarding the case and he participated with Spingarn in doing some of the experiments. Specifically, Maricich and Spingarn consulted together to decide which were the best analyses to run and would give the best data.

The Spingarn reports dated July 23, 2015, August 24, 2015, and January 21, 2016, are all addressed to Maricich. The first two are labelled "Report of Analysis" and "Additional Report of Analysis" respectively and attached spectra and chromatograms. The first report describes how the tests were conducted (one "drop was evaporated onto a glass slide" and the "residue was analyzed"). The third does not have a written report component but consists only of test results in graph form.

The second report is the most troublesome. It states the plastic bottle was tested using certain instruments and describes the outcome of the tests. The report includes two paragraphs reflecting Spingarn's assessment of the tests. He stated, "We have three potential scenarios for the bottle explosion: fermentation, Mentos/soda and dry ice. In the first scenario the contents of the bottle fermented which gives off gas and builds internal pressure. This can result[] in explosive overpressure. The residues in the bottle show foodstuff which could be the fuel for fermentation; however, the liquid tested did not show the presence of ethanol. The reaction of Mentos with soda is well known to produce high pressures in bottles. The residues in the bottle show elevated levels of potassium and phosphorus. The former could come from potassium benzoate or sorbate, both of which are used in some soda products. The latter could come from phosphoric acid which is used in most soda products. However, the liquid tested did not show evidence of menthol or other terpenes which would be expected from this scenario. The third possibility examined was the use of dry ice. This is known to build pressure and would leave behind no chemical signature."

Spingarn continued, "All three of these scenarios are possible but there is no definitive evidence for any of them. The first would take the most time to generate pressure (hours to days). The latter two would generate pressure rapidly and should have a relatively short time (minutes) between being placed in the trash and exploding. Since the incident took place in early 2013 and the testing was performed in mid-2015 we have a concern that suboptimal handling, testing and storage of the materials may have rendered the evidence less useful for further testing. No evidence was observed for the presence of other explosives."

The County's Evidence In Opposition To The Disqualification Motion

The County opposed the motion, relying on the declarations of attorneys Christensen and Wagner, paralegal Cindy Thebeau, and experts Maricich and Spingarn. The County also attached e-mail exhibits to Christensen's declaration and filed objections to plaintiff's evidence.

Christensen declared on March 3, 2015 she and Pirozzi began to communicate to arrange testing of the residue that had been taken from the exploded plastic bottle including possibly working with a single expert to do the testing for both sides considering there may not be enough material left for both parties to conduct testing. Working with Thebeau, Christensen arranged for Spingarn to serve as the County's expert. After several e-mail exchanges with Black's counsel regarding specifics of the parties' experts testing the material at the lab, on March 26, 2015, Christensen learned for the first time from Pirozzi that the expert Black intended to use was Spingarn. She then sent the March 26 e-mail suggesting each side retain a new expert. Her firm ceased all communication with Spingarn and stopped the retainer process. After a week of not hearing from Pirozzi, Christensen directed Thebeau to start looking for another expert.

Eventually the County was able to secure Maricich to serve as its expert witness, but Maricich did not have his own lab and suggested using S & N Labs because there was no suitable alternative. Christensen advised Maricich that both parties had tried to retain Spingarn and it created an issue so they were looking for an expert to replace Spingarn. Christensen asked Maricich if the samples could be submitted under his name without indicating the testing was being done for her firm. He said he submits the samples under his name and the lab assigns a case number. Christensen told Maricich if he were to use S & N Labs, "he would need to keep his contacts with Dr. Spingarn very limited, only enough to have his own testing done." She told Maricich that to the extent possible, he was to avoid talking to Spingarn and not to discuss the parties. She told him to make sure all the testing was his work only and that none of the testing could be Spingarn's ideas or opinions. Maricich assured Christensen this was the case.

On May 29, 2015, Christensen sent an e-mail to Black's counsel stating the County's new expert may need to use S & N Labs for his testing. Christensen waited to hear from Black's counsel about using S & N Labs, but Pirozzi never opposed or objected to the plan. Christensen declared at some point "during this meet and confer process" Pirozzi called her and told her he had no problem with the County's expert using S & N Labs as long as the County's expert would be able to testify as to the testing methods used as well as the conclusions. He represented his only concern was not to examine two separate experts. Christensen said the County's expert would be able to testify to everything but she made no representation Spingarn would not run any of the tests. Pirozzi never indicated a concern that he had given Spingarn confidential information that could be passed on to the County's expert. There were no other conditions expressed by Pirozzi during that phone call or at any time thereafter. Christensen said she would not have given the go-ahead to Maricich to use S & N Labs if Pirozzi had objected.

With the understanding there had been no objections from Black's counsel, Christensen told Maricich it was alright to use S & N Labs. As a precaution she stressed to Maricich to keep contacts with Spingarn to a minimum, only to the extent needed to get his own testing done and not to discuss the parties or anything confidential with him and to make sure all the work being performed was strictly his own. She repeated this caution to Maricich several times throughout the case and Maricich confirmed he understood.

Later in preparation to file opposition to Black's motion for summary judgment, Christensen asked Maricich to review Black's expert's declaration which theorized that baking powder and water caused the bottle to explode. In order to respond, Maricich again used S & N Labs to run spectra tests for baking powder. Christensen did not believe it would be an issue, because Black's counsel had never opposed the County's use of the lab for other tests.

Finally, Christensen declared at no time during the case had Black's counsel ever objected to the County's use of S & N Labs. She also declared at no time had either Maricich or Spingarn ever provided her with any confidential information about Black or his counsel's theories or strategies, strengths or weaknesses, other than what was disclosed in Black's motion for summary judgment. The only testing done at S & N Labs that Black's counsel was not first made aware of was in January 2016 when Spingarn ran the instrument which produced a chart used by Maricich. But Spingarn did not prepare a summary or report on this occasion. And, the testing on the bottle and residue was run by Chris French, not Spingarn. Christensen was not aware Spingarn had prepared written summaries in July and August of 2015 until Maricich produced them at his deposition. Previously Maricich had provided her only with his oral reports.

Wagner declared to many of the same facts as Christensen, then stated, "The issue was utilizing a chemist just as [Black's] counsel is utilizing James Doi, for the purpose of trial testimony without having the necessity to have the person who actually performed the perfunctory tests named as an expert." Wagner attached to his declaration a videotape and transcript of the video of the plastic bottle splitting that occurred at the lab on August 10, 2015.

Wagner described his only two conversations with Spingarn — the first at the bottle splitting and the second on March 29, 2016 when he was "compelled to have a conversation with him about his contacts with . . . Maricich." Wagner told Spingarn not to disclose any confidential information he might possess. During the conversation, he procured Spingarn's declaration.

Wagner stated if the County's expert is excluded there is no longer any material to test placing the defense at a severe disadvantage. He stated Black's expert and the County's expert "are pretty much in agreement except for the causative factor as to what caused the bottle to explode." Doi believes the causative agent was baking powder and someone intentionally placed the baking powder into the bottle which exploded within several hours. Maricich believes it was a yeast based composite that would have occurred from some type of rotting fruit over a longer period of time. Wagner was not aware of any confidential information that could have been imparted in the case, as the experts "pretty much" ran the same tests that were originally run by the Sheriff's Department crime lab. Wagner said Spingarn never provided him with any information about Black or Black's counsel other than what appears in his declaration. Nor had Maricich. He had no knowledge of any confidential information that did or possibly could have originated from Black or his counsel, and none was provided to him. Wagner concluded during Maricich's deposition, there was not a single question he could not answer regarding the testing methods, data, charts, results, findings or conclusions. He said Maricich is more than qualified to testify at trial as to his methods and decisions in this testing and Spingarn is not a necessary party on any issue, just as the lab personnel who analyzed the materials for Doi are not necessary.

Thebeau declared to her efforts to locate and engage an expert witness on the County's behalf. She had several contacts with Spingarn in this regard. It was during their first conversation that Spingarn told her he had heard about the explosion. She declared many of the labs she contacted did not conduct the type of testing they were requesting. Thebeau stated Spingarn never disclosed any confidential information to her of any kind and never indicated he had ever spoken to Black's counsel. Thebeau attached to her declaration several e-mails outlining her efforts.

Maricich declared S & N Labs had been analyzing samples for him since at least 1994. It is routine for him to discuss the nature of samples to be tested with the analyst to be sure the selected tests are the most reliable, definitive and cost-effective. Before taking any samples to S & N Labs, he first asked defense counsel by e-mail whether there had been an agreement he could use that lab. She e-mailed him, "I told opposing counsel that you are going to use [S & N Labs]." Marcicich declared he was aware from past cases that it was not uncommon for S & N Labs to run test for both sides in a case. He said Spingarn was scrupulous about confidentiality and never discussed the results of one client's testing with another client. "He rigidly adheres to this practice."

Maricich declared after receiving his share of the samples, he delivered them to S & N Labs for testing on July 1, 2015. Each of the tests that were run was already selected by Maricich when he delivered the samples. His discussions with Spingarn were limited to directing which tests to run to obtain results that would best identify the composition of materials in the samples. Maricich declared when he stated in his deposition he consulted with Spingarn, "this was to explain what tests he wanted run and for him to describe the instruments, methods and costs of the tests that would give the results [Maricich] needed." Maricich said Spingarn did not advise him on how to approach the case or what results were needed. Maricich declared his communications with Spingarn were strictly limited to him acting in the capacity as director of the laboratory. Spingarn assigned his assistant, French, to perform the tests. Subsequently, Spingarn wrote a summary of the results and sent them to Maricich along with spectral charts. Maricich said he arrived at his own conclusions based on the data he obtained from the charts. He said Spingarn had routinely written a summary report for each test that had been performed at S & N Labs since 1994. In this case, Maricich did not ask Spingarn to write the report, nor did he rely on his summary in drawing his conclusions.

In January 2016 as the parties were readying for trial, Maricich and the County's counsel had a discussion about Doi's theories. Maricich made a sample of baking powder and water based on Doi's declaration and took the residue to S & N Labs for testing on January 21, 2016. Maricich declared he needed the results immediately so Spingarn ran two analyses as Maricich waited for the results. Spingarn did not submit a report on these results, and Maricich took all the results with him after the tests were completed.

Maricich declared all the conclusions he presented in the case were his alone based on data obtained using Spingarn's instruments and lab equipment. He said no confidential information from Black was involved in obtaining the results of the tests run at S & N Labs, or in reporting or summarizing the results. He also said Spingarn did not give him any confidential information about Black, nor did Maricich provide confidential information about Black or his attorneys to the County's counsel.

Spingarn declared in early March 2015 during a discussion of another case, an attorney from Rizio & Nelson mentioned a case where something exploded at or near the jail. He said he had previously read about the explosion in a newspaper article. He declared the attorney did not tell him his theory for the cause of the explosion or give any additional information, nor did they discuss any proposed strength or weakness of any case or strategies or confidential information about any party. He said the attorney did not tell him who he represented or the name of the case. Spingarn offered a hypothesis as to a possible explanation of the explosion that he formed when he read about it in the newspaper. He said the attorney asked if this was the kind of work Spingarn could do and he replied yes. He never heard back from the attorney.

Two weeks later he was contacted by Wagner & Pelayes. He declared they described a case in general and he reviewed his records and confirmed he had not opened any file in the case and had not been retained by anyone. He recalled the case from Rizio & Nelson and "contacted them" but did not explain what was said or who he spoke with. He admits that "it was not clear whether the two firms were discussing the same case or were representing the same parties." He was later informed by the first law firm that because both lawyers had tried to talk to him about the case neither would retain him. Neither retained him, and he received no compensation from either law firm.

In July 2015 Spingarn was contacted by Maricich to do some testing. Spingarn's role was to take the materials that had been provided to Maricich and conduct tests. Once Maricich described the general outline of the case, Spingarn realized it was the same case he had been contacted about. He informed Maricich and requested he discuss this with his client to ensure using the lab would cause no difficulty. In August 2015 Maricich and two lawyers came to the lab and had Spingarn split a plastic bottle in half lengthwise. Both attorneys were asked how they wanted it done and both participated. No objection to the lab's role in this testing was voiced.

Based on the initial newspaper report, Spingarn had a proposed hypothesis for the cause of the explosion which he shared with the first lawyer. Maricich had his own theory based upon tests being performed. Spingarn never conducted any testing on his own hypothesis.

Spingarn declared he was not privy to any confidential information from either party. Other than the results of testing, the only information he knew was that a plastic bottle exploded in a trash can at or near the jail. He declared he had not imparted any confidential information to Maricich "other than the test data I provided to him for the hypothesis that he was testing." He stated he did not possess any confidential information and the data provided to Maricich was based on the tests run at his direction. Spingarn stated Maricich told him what tests he wished to run and the lab performed the testing. He stated he did not advise Maricich about his theory of the explosion and none of the tests conducted for Maricich were conducted at Spingarn's suggestion. He denied advising or suggesting to Maricich which tests he should run or what he should test for and stated he had not expressed any opinions about the evidence in this case to either party.

The Trial Court's Ruling

The trial court granted Black's motion, finding Black had demonstrated (1) his counsel reasonably expected confidentiality in the retention interview with Spingarn and (2) confidential information materially relevant to this litigation was in fact disclosed. The court stated, "The weight of the evidence — particularly Dr. Maricich's deposition testimony and the lab reports from S & [N] Labs — show Dr. Spingarn was significantly involved in Dr. Maricich's expert analyses and that Dr. Maricich's expert opinions are tainted with those of Dr. Spingarn's. Even assuming Dr. Maricich did not expressly ask Dr. Spingarn about the contents of his retention interview with plaintiff's counsel and that Dr. Spingarn did not explicitly disclose the information to Dr. Maricich, Dr. Maricich still obtained the benefit of the information because the data, consciously or unconsciously, likely shaped or affected the analysis and opinions rendered by Dr. Maricich. [Citation.] This raises a rebuttable presumption that Dr. Spingarn, via Dr. Maricich, has disclosed plaintiff's confidential information concerning plaintiff's counsel's theories, strengths, and weaknesses of the case concerning the explosion to defense counsel. [Citation.] Defendants' declarations — which conflict with plaintiff's evidence, Dr. Maricich's own deposition testimony, and the lab reports — do not adequately rebut this presumption."

The court noted at the hearing, "I want to make it clear that the parties tried to do this correctly, recognized the issue, recognized the problem. I have no criticism of any of the activities of the lawyers. I think the lawyers got tripped up as a result of the experts doing what they did. The experts are not experts on the law, and therein lies the rub because I think it's created a problem where I'm going to grant the motion. [¶] And I've looked high and low to see whether I can grant the motion with respect to the experts and intellectually, honestly, come to a means by which I say the defense firm doesn't have to be removed because they tried to do it right. [¶] But the case law seems to be such that when I looked at everything that's happened here, there is no way I can keep the defense firm in the case and the expert does have to be replaced."

The County timely appealed the disqualification order.

DISCUSSION

The County contends the trial court erred in disqualifying Maricich and Wagner & Pelayes. "A trial court's ruling on a motion to disqualify counsel is generally reviewed for abuse of discretion. [Citation.] Where the trial court resolves a matter by considering disputed factual issues, the appellate court does not substitute its judgment for that of the trial court, and its express and implied findings will be upheld if supported by substantial evidence. [Citation.] If the court's findings are supported by substantial evidence, the appellate court reviews those findings under an abuse of discretion standard." (M'Guinness v. Johnson (2015) 243 Cal.App.4th 602, 604; In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 585.)

"`A motion to disqualify a party's counsel may implicate several important interests. Consequently, judges must examine these motions carefully to ensure that literalism does not deny the parties substantial justice. [Citation.] Depending on the circumstances, a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion.'" (Collins v. State of California (2004) 121 Cal.App.4th 1112, 1123 (Collins).)

The first step in the analysis of a disqualification motion, such as the one before us, is to determine whether the information received was actually confidential. (Toyota Motor Sales, U.S.A., Inc. v. Superior Court (1996) 46 Cal.App.4th 778, 782.) The attorney-client privilege protects confidential information the attorney has received from his or her client, which is then transmitted to an expert. When the expert is designated as a witness, however, the attorney-client privilege is lost "because the decision to use the expert as a witness manifests the client's consent to disclosure of the information." (Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1079 (Shadow Traffic).) If an expert is retained as a consultant, any reports prepared by him or her are protected by the work-product doctrine. Upon the expert's designation as a witness, the reports are discoverable. (Ibid.)

In Shadow Traffic, the defendant's attorneys, Latham & Watkins, retained Deloitte & Touche as an expert notwithstanding Deloitte & Touche had previously been interviewed by the plaintiff's attorneys, Andrews & Kurth, as potential experts for the same lawsuit. (Shadow Traffic, supra, 24 Cal.App.4th at p. 1072.) During the interview, confidential information was transmitted to Deloitte & Touche; it was advised of its confidential nature, but Deloitte & Touche was not retained. (Id. at pp. 1071-1072.) Deloitte & Touch informed Latham & Watkins of the previous interview, but Latham & Watkins hired the firm anyway and did not inform Andrews & Kurth about the potential conflict. (Id. at p. 1072.)

The court held once the party moving for disqualification had established its attorney transmitted confidential information to the potential expert, "`a rebuttable presumption arises that the information has been used or disclosed in the current employment. The presumption is a rule by necessity because the party seeking disqualification will be at a loss to prove what is known by the adversary's attorneys and legal staff.'" (Shadow Traffic, supra, 24 Cal.App.4th at p. 1085.) "The effect of this type of presumption `is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.' [Citation.] This means that because the trial court had first found the basic fact that gave rise to the presumption (Andrews & Kurth had given confidential information to Deloitte & Touche), it had to find the presumed fact (Deloitte & Touche had disclosed this confidential information to Latham & Watkins) unless it was persuaded by a preponderance of the evidence of the nonexistence of the presumed fact." (Ibid.)

Using the analysis in Shadow Traffic, here the trial court found the weight of the evidence supported the conclusion Black demonstrated (1) his counsel reasonably expected confidentiality in the retention interview with Spingarn and (2) confidential information materially relevant to this litigation was in fact disclosed. The court also found the County's evidence, which conflicted with Black's evidence, did not rebut the presumption. The court disqualified Maricich and Wagner & Pelayes because it found Spingarn's information had been presumably transmitted to Maricich and thus to Wagner & Pelayes. In other words, it found Maricich's work had been infected by confidential information supplied to Spingarn by Rizio & Nelson. As will be seen, we cannot say the court abused its discretion in reaching these conclusions.

Substantial Evidence Supports the Finding Rizio & Nelson Conveyed Confidential Information to Spingarn During the Retention Interview

The County contends the trial court erred in applying the Shadow Traffic presumption because the evidence failed to show any confidential information materially related to the case was shared. The County argues though Black's counsel averred they shared perceived weaknesses, strengths, and theories with Spingarn, these are patently conclusory terms that do not necessarily include confidential information. The County argues the fact Black did not include a declaration from Spingarn in his moving papers is a huge red flag, relying on Collins, supra, 121 Cal.App.4th 1112. But Collins is distinguishable because there, the moving party had access to the expert in order to obtain the declaration but nevertheless failed to do so. (Id. at p. 1129 [expert remained under control of moving party].) Here, Black's counsel was not in contact with Spingarn after the retention interview; it was the County's expert who was dealing with Spingarn. We do not fault Black for failing to submit Spingarn's declaration in support of his disqualification motion.

Two of Black's attorneys (Pirozzi and Hicks) described their contact with Spingarn during the retention interview in January 2015. It occurred in Spingarn's office with Spingarn, Hicks, and Pirozzi present. Hicks was there to discuss a separate case and brought Pirozzi to the meeting so he could discuss Black's case with Spingarn. Pirozzi and Hicks each declared based on the location, information discussed, and Rizio & Nelson's ongoing confidential relationship with Spingarn (cultivated while working on Hicks's other case), they understood the information discussed was confidential and subject to protection from disclosure. Pirozzi discussed the facts of Black's case with Spingarn and disclosed his theories of the case, concerns, perceived strengths, and perceived weaknesses. According to Pirozzi, Spingarn then offered his opinions and theories of the case. At the end of the interview, Pirozzi told Spingarn that Rizio & Nelson would retain him as an expert in Black's case.

Spingarn's declaration offers a conflicting version of events. He stated the meeting described by Hicks and Pirozzi occurred in early March 2015 at which time an unnamed attorney from Rizio & Nelson mentioned a case where something exploded at or near the jail. He said he had previously read about the explosion in a newspaper article. He declared the attorney did not tell him his theory for the cause of the explosion or give any additional information, nor did he and this attorney discuss any proposed strength or weakness of any case or strategies or confidential information about any party. He said the attorney did not tell him who he represented or the name of the case. However, Spingarn conceded he offered a hypothesis as to a possible explanation of the explosion that he formed when he read about it in the newspaper. He said the attorney asked if this was the kind of work Spingarn could do and he replied yes, but he never heard back from the attorney.

Whether it occurred in January or March 2015, we cannot say the trial court erred in determining Black's attorneys reasonably expected confidentiality in the retention interview with Spingarn. Substantial evidence shows Pirozzi discussed facts, theories, concerns, perceived strengths, and perceived weaknesses with Spingarn and that Spingarn shared his opinions and theories of the case. We do not reweigh this evidence on appeal. The court could reasonably infer the interview was designed to elicit Spingarn's opinion concerning the cause of the explosion or the discussion would have been meaningless and unnecessary. It is also reasonable to expect when counsel interviews a potential expert, counsel will consider the interview confidential. (See Shadow Traffic, supra, 24 Cal.App.4th at pp. 1083-1084 ["factual and legal theories about a case . . . traditionally considered confidential"].)

To illustrate, if the County's counsel also had been present during the retention interview, we have no doubt the conversation would have been different. Black's two attorneys were present at the lab in part to discuss another case in which Spingarn was already acting as an expert for Rizio & Nelson. There is no contention that whatever they discussed regarding this earlier case was somehow not confidential. It is reasonable to conclude counsel felt a conversation with Spingarn about a new case (Black's) would remain confidential as well. The fact Black's counsel never hired Spingarn is not determinative. (Shadow Traffic, supra, 24 Cal.App.4th at p. 1080 ["We therefore conclude that communications made to a potential expert in a retention interview can be considered confidential and therefore subject to protection from subsequent disclosure even if the expert is not thereafter retained as long as there was a reasonable expectation of confidentiality"].)

We conclude substantial evidence supports the trial court's finding Black's counsel reasonably expected confidentiality in the retention interview with Spingarn and that confidential information was exchanged. (See Western Digital Corp. v. Superior Court (1998) 60 Cal.App.4th 1471, 1481 [attorney declarations attesting to expectations regarding confidentiality in retention interviews is evidence which suffices to support a court's implied finding that party has reasonable expectation in retention interview].)

The County Failed to Demonstrate by a Preponderance of the Evidence the Nonexistence of the Presumed Fact That Confidential Information was Used or Disclosed

Rizio & Nelson never expressly consented to Wagner & Pelayes's hiring of Spingarn's lab to conduct testing. "`Absent written consent, the proper rule and its application for disqualification based on nonlawyer employee conflicts of interest should be as follows. The party seeking disqualification must show that its present or past attorney's former employee possesses confidential attorney-client information materially related to the proceedings before the court. . . . The party should not be required to disclose the actual information contended to be confidential. However, the court should be provided with the nature of the information and its material relationship to the proceeding. [Citation.] [¶] Once this showing has been made, a rebuttable presumption arises that the information has been used or disclosed in the current employment. The presumption is a rule by necessity because the party seeking disqualification will be at a loss to prove what is known by the adversary's attorneys and legal staff.'" (Shadow Traffic, supra, 24 Cal.App.4th at pp. 1084-1085.) The Shadow Traffic court "found the presumption is one affecting the burden of proof." (Id. at p. 1085; see Evid. Code, § 605.) It imposes "`upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.'" (Ibid; see § 606.)

In the context of this case, this means there is a presumption that the information passed from Pirozzi to Spingarn was used by or disclosed to Maricich and ultimately to Wagner & Pelayes. The County argues the presumption was rebutted, because Black never pointed to any possible confidential information that was actually disclosed to Spingarn and passed to Maricich. Of course this is the inherent problem the presumption is designed to address. (Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395, 410 (Shandralina G.) [in expert cases, rebuttable presumption based on recognition party seeking disqualification will be unable to acquire evidence to prove what was communicated to adversary's attorney by retained expert because communications themselves are privileged].)

The County must rebut the presumption with substantial evidence. "To be substantial, the evidence must be of ponderable legal significance, reasonable in nature, credible, and of solid value." (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.) "However, substantial evidence is not synonymous with any evidence." (Ibid.) "`The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.'" (Ibid.)

Both Maricich and Spingarn declared to their conclusions no confidential information was disclosed. However, it appears the trier of fact reasonably questioned the credibility of Maricich and/or Spingarn.

As to Maricich, his declaration directly contradicts his deposition testimony. In his February 2016 deposition, Maricich testified he consulted with Spingarn regarding the case and he participated with Spingarn in doing some of the experiments. He produced the three written reports addressed to him from Spingarn. The troublesome second report contains Spingarn's comments, observations, and conclusions regarding three theories for why the plastic bottle exploded.

Yet when faced with the disqualification motion three months later, Maricich signed a declaration in April 2016 stating his discussions with Spingarn were limited to Spingarn acting in his capacity as director of the lab and that French performed the tests. Curiously he never addressed Spingarn's second report which concluded there is no way to determine what caused the explosion. The County argues Black's counsel never asked Maricich questions during his deposition about his actual communications with Spingarn. Perhaps, but the fact Maricich testified they consulted together to decide which tests to run and which would give the best data, and that he participated with Spingarn in doing some of the experiments, is sufficient to infer Spingarn was consciously or unconsciously considering his prior conversation about the case with Pirozzi when he interacted with Maricich. (See, Shadow Traffic, supra, 24 Cal.App.4th at p. 1086 [data, consciously or unconsciously could shape or affect analysis and advice expert rendered].) And Maricich never testified he ignored Spingarn's report or conversations they had.

Likewise, Spingarn's declaration reveals a certain lack of candor. In March 2015 after the retention interview, Spingarn told Thebeau his only knowledge of the case was from reading about it in the newspaper. Christensen declared at no time did Spingarn give any indication he had spoken to Black's counsel for any reason related to the case or at all. One year later in March 2016 Spingarn provided the court with a detailed description of his interaction with Pirozzi, including that the attorney did not disclose his theory for the cause of the explosion, nor did they discuss strengths or weaknesses in the case, strategies or confidential information. Even so, he admitted to offering a hypothesis for the explosion at that time but never revealed what that hypothesis was. And he never told Thebeau he had previously offered a hypothesis about the case when she contacted him. It is puzzling that Spingarn recalled in greater detail one year later that which he could not recall at the time.

Spingarn declared he never had any confidential information to disclose. But we have already determined substantial evidence supports the finding that confidential information was shared during the retention interview. Spingarn declared when the attorney from Rizio & Nelson mentioned the case during the retention interview (which Spingarn recalled took place in March 2015), he had already read about the case in the newspaper. He stated he had a proposed hypothesis for the cause of the explosion, which he shared with the first attorney (Pirozzi). However, Hicks and Pirozzi both declared as of March 2015 facts giving rise to the lawsuit had never been featured in the media. The County never produced evidence of a newspaper article showing otherwise. We are left to conclude Spingarn's recollection may be flawed. The more likely explanation is Spingarn was familiar with the facts of the case when contacted by Wagner & Pelayes because he had previously discussed it with Pirozzi during the retention interview. That he later wrote a report about the three theories as to why the bottle exploded leads to a reasonable inference these and possibly other theories were discussed during the retention interview. Spingarn never declared otherwise.

It is also curious Spingarn never explained why he included his comments, observations and conclusions about the three theories when he wrote his second report. Did Maricich ask him to do so? Did Spingarn believe it was within the scope of his duty as lab director? Did he recall whether any of the three theories were the same as the hypothesis he admitted to offering Pirozzi during the retention interview? We do not know.

The conflicts in the evidence and unanswered questions are problematic for the County on appeal. As explained in Shadow Traffic, "[t]here are circumstances in this case . . . from which the trial court could have concluded that the presumption that Deloitte & Touche had disclosed confidential information to Latham & Watkins was rebutted. But, . . . there are other circumstances from which the trial court could reach a contrary conclusion. In this circumstance, appellate review of the trial court's decision is narrowly circumscribed. When a judicially created presumption affecting the burden of proof is triggered, the question of whether the party who has the burden of establishing the nonexistence of the presumed fact has carried its burden of persuasion is an issue for the trier of fact to decide, not a reviewing court. [Citation.] Thus, we may not reweigh the evidence or substitute our deductions for those of the trial court." (Shadow Traffic, supra, 24 Cal.App.4th at pp. 1086-1087.)

As in Shadow Traffic, here there are circumstances from which the trial court could have reached a contrary conclusion on whether the County rebutted the presumption. We acknowledge Christensen declared at no time did Maricich or Spingarn provide her with confidential information about Black or his counsel's theories or strategies or the case's strengths or weaknesses. Wagner stated he was not aware of any confidential information that could have been imparted in the case and he had no such confidential information. Thebeau likewise declared in her contacts with Spingarn, he never disclosed confidential information of any kind. Nevertheless, the trial court credited Black's evidence. We will not reweigh the evidence or substitute our deductions.

In addition to these problems with the evidence, we find it difficult to accept the County's inherently inconsistent positions. Commendably, the County first suggested neither side use Spingarn because of ethical implications. In her March 26, 2015 e-mail, Christensen wrote, "We suggest that neither side use Mr. Spingarn; it obviously wouldn't be ethical for you to retain him after he agreed to be our expert and we engaged in discussions with him about the case. For the same reason it wouldn't be ethical if [we] continued to try to use him if you've also had discussions with him." The parties' agreement to proceed as suggested is proven by the fact both retained different experts. However, the County now contends the use of Spingarn's lab and his written reports to Maricich are somehow acceptable.

Still, the real problem occurred not with the County's counsel but with the County's expert, Maricich. One infects the other. The County seems to recognize the significance of Spingarn's reports addressed to Maricich, because Christensen declared she was not aware of the reports until Maricich's deposition. Christensen told Maricich to make sure all testing was his work only and that none of the testing could be Spingarn's ideas or opinions. Maricich's deposition and Spingarn's reports are evidence Maricich ignored Christensen's repeated admonitions to keep contacts with Spingarn to a minimum and to avoid talking to Spingarn. Maricich and Spingarn completely failed to avoid contact with one another. Even Spingarn declared defense counsel told him he was tainted and that neither side could retain him. Yet he wrote the reports describing his theories anyway. And Maricich received, relied on, and produced the reports at his deposition anyway. The experts created the problem the County now faces.

The County relies on Shandralina G., supra, 147 Cal.App.4th 395 but the case is distinguishable. In Shandralina G., the court concluded the rebuttable presumption applicable to experts was not applicable, because there was no evidence the expert was legally unavailable to the moving party as a source for evidence of what confidential information the expert conveyed to plaintiff's counsel. (Shandralina G., at pp. 413-414.) Similar to Collins, supra, 121 Cal.App.4th 1112, this was because the evidence showed the expert "was and remained [moving party's] consultant." (Shandralina G. at p. 413.) Here, the facts paint a different picture. There is no evidence Spingarn was and remained Black's consultant. In this case, there is no argument the rebuttable presumption is inapplicable.

Wagner & Pelayes Must Also Be Disqualified

The County argues disqualification of an expert witness should not automatically require disqualification of counsel, relying on language in Collins, that when counsel is innocent of any wrongdoing and acted with high ethical standards, disqualification is inappropriate. (See Collins, supra, 121 Cal.App.4th at p. 1131.) However, Collins is distinguishable, because in Collins, the court concluded no material confidential information was disclosed. (Id. at p. 1132.) Here substantial evidence supports a different conclusion.

"When an attorney consults with an expert and obtains confidential information protected by the work product privilege, and the opposing attorney later acquires the privileged information during communications with that expert, the opposing attorney can be disqualified because, `[h]aving become privy to [the attorney's] work product, there is no way the offending attorney could separate that knowledge from his or her preparation of the case.'" (Shandralina G., supra, 147 Cal.App.4th at p. 407; see In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at p. 596 [disqualification of expert and law firm that retained expert justified where moving parties establishes expert actually possesses confidential attorney-client information material to proceedings].) Given our finding the County failed to rebut the presumption that confidential information was actually used or disclosed, the trial court did not err in disqualifying Wagner & Pelayes.

DISPOSITION

The order is affirmed. Black shall recover his costs on appeal.

O'LEARY, P. J. and THOMPSON, J., concurs.


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