Rico v. Mitsubishi Motors Corp., E033616.

CourtCalifornia Court of Appeals
Citation10 Cal.Rptr.3d 601,116 Cal.App.4th 51
Decision Date25 February 2004
Docket NumberNo. E033616.,E033616.
PartiesZerlene RICO et al., Plaintiffs and Appellants, v. MITSUBISHI MOTORS CORPORATION et al., Defendants and Respondents.

Pine & Pine, Norman Pine, Encino; Law Offices of Raymond Paul Johnson, Raymond Paul Johnson; Law Offices of Jack L. Mattingly and Jack L. Mattingly, Los Angeles; for Plaintiffs and Appellants.

Yukevich & Sonnett, James J. Yukevich, Alexander G. Calfo and Stephanie A. Hingle; Bingham McCutchen LLP, Leslie G. Landau and Claudia Y. Sanchez, San Francisco, for Defendants and Respondents.



1. Introduction

In a sports utility vehicle (SUV) rollover case with serious injuries and death, counsel for plaintiffs obtained a document that provided a summary, in dialogue form, of a defense conference between attorneys and defense experts in which the participants discussed the strengths and weaknesses of the defendants' technical evidence. Despite the fact that the notes were clearly the confidential work product of defense counsel, plaintiffs' counsel made no effort to notify defense counsel of his possession of the document and instead examined, disseminated, and used the notes to impeach the testimony of defense experts during their deposition, all in contravention of the legal and ethical standards established in State Comp. Ins. Fund v. WPS, Inc.1

Although the document did not implicate the attorney-client privilege, we uphold the court's finding that defense counsel's notes did constitute attorney work product. We also uphold the court's disqualification order because substantial evidence supported the court's finding that the dissemination and use of the document placed defendants at a significant disadvantage that could not have been removed by lesser sanctions. We affirm the court's order.

2. Factual and Procedural History

On March 15, 1999, plaintiffs Zerlene Rico, Estate of Denise Rico, Fernando Rico, and Silvia Rico, individually or through a guardian ad litem or administrator, filed a complaint for various causes of actions including negligence, strict liability, and breach of warranties, against Mitsubishi Motors Corporation, Mitsubishi Motor Sales of America, Inc. (collectively Mitsubishi or defendants), the California Department of Transportation (the Department), Lenette Rico-Abassi, and Michael Abassi. On June 16, 1999, plaintiffs Lenette Rico-Abassi and Michael Abassi filed a complaint with similar claims against Mitsubishi and the Department. By the parties' stipulation, the trial court consolidated the two cases. In their complaint, the plaintiffs alleged that, on June 21, 1998, Lenette Rico-Abassi drove a Mitsubishi Montero along Interstate 10 and, when Rico-Abassi maneuvered the vehicle, the vehicle overturned, resulting in both fatal and debilitating injuries to the other plaintiffs who were passengers in the vehicle.

On September 18, 2002, defendants filed a motion to disqualify plaintiffs' legal team and experts on the grounds that plaintiffs' attorney obtained and used confidential and privileged materials prepared by defense counsel.

Plaintiffs' attorney Raymond Johnson obtained the notes of one of the defense attorneys, James Yukevich, after a deposition with Yukevich and defense expert, Anthony Sances. While Johnson stated that a court reporter accidentally delivered the document to Johnson, Yukevich claimed that the document was taken from his files when Johnson temporarily commandeered the deposition room for a personal meeting.

The document, later identified as exhibit 52, has the following heading:

"August 28, 2002



The 12-page document is written in the form of a dialogue between the defense attorneys, including Yukevich and Alexander Calfo, and the defense experts. All the participants are referred to by their initials only. The document also contains a few handwritten notes or comments.

Yukevich testified that, under his instructions, James Rowley, a case manager for Mitsubishi who had worked with Yukevich for three years, drafted the document during an August 28, 2002 legal engineering meeting (LEC). During the breaks and after the meeting, Yukevich edited the typewritten notes and later added his own handwritten comments. At some point before Sances's deposition, Yukevich printed one copy of these notes for his own personal use.

When Johnson received the document, he knew that Yukevich had unintentionally left it in the deposition room. Realizing that he had in his hand a "powerful impeachment document," Johnson made a copy for himself before returning the original to the court reporter. Johnson then made additional copies and sent them to plaintiffs' experts and the other attorneys.

On September 16, 2002, Johnson used the document for impeachment purposes during the deposition of defense expert Geoffrey Germane. During the deposition, Johnson showed Germane a copy of the document and proceeded to ask questions concerning the comments attributed to Germane (JG) in the document. Yukevich did not attend Germane's deposition, but cocounsel Calfo was present. Calfo did not know the source of the document or its significance. Although he did not object to the document as confidential or privileged, Calfo raised several objections on other grounds, including lack of foundation, hearsay, and inaccuracy. Johnson provided no explanation as to the source of the document, except to say that, "[i]t was put in Dr. Sances' file."

On the day after Germane's deposition, Yukevich, after discovering that Johnson had a copy of his personal notes, accused Johnson of reading and using a privileged document. Yukevich demanded all copies of the document and advised Johnson of his intent to request that the court disqualify Johnson, Anthony Sances, and any other experts who had seen the document.

As threatened, on September 18, 2002, Yukevich filed a motion to disqualify plaintiffs' attorney and experts. Yukevich argued that Johnson failed to comply with the ethical requirement of advising opposing counsel of his receipt of the confidential document.

After a lengthy hearing on the motion, the trial court granted the motion. The trial court made the following factual findings: Rowley acted as Yukevich's paralegal in preparing the notes; Yukevich created the document for his own personal use; Johnson obtained the document inadvertently; Johnson provided copies to attorneys Robert Balbuena and Jack Mattingly and experts Sances and Robert Anderson; the document is protected under both the attorney-client privilege and the attorney work product doctrine; Johnson violated his ethical duty by failing to notify opposing counsel and using the document; and, as a result of the unmitigatable prejudice, disqualification was the appropriate remedy. The court then continued the case to provide the plaintiffs an opportunity to retain new counsel.

3. Standard of Review

Generally, appellate courts review a trial court's decision to grant a disqualification motion for an abuse of discretion.2 A court abuses its discretion when it acts arbitrarily or without reason.3 In applying the abuse of discretion standard in this context, we carefully review the record to make the following determinations: whether the court's factual findings were supported by substantial evidence; whether the court properly exercised its discretion in reaching its ultimate factual conclusions; and whether, based on our independent review, the court properly understood and applied the law.4

4. Privileged Document

Plaintiffs claim that the trial court erred in finding that the document was protected as both an attorney-client communication and as attorney work product. For the reasons provided below, we conclude that the document was not protected by the attorney-client privilege. The document was, however, confidential and privileged as attorney work product. Therefore, while the court misapplied the attorney-client privilege, the court did not abuse its discretion in reaching the ultimate conclusion that the document was privileged.

A. Attorney-Client Privilege

Plaintiffs argue that the document did not constitute a confidential communication under Evidence Code section 952.

Evidence Code section 952 defines a "confidential communication" as "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." As the holder of the privilege, the client may refuse to disclose and prevent others from disclosing confidential communications.5 The privilege safeguards the confidential relationship between the client and his attorney and allows the two to engage in full and open discussion about the facts and legal strategies.6

These general principles envision some communication or transmission of information between an attorney and his client. The document in this case, however, does not fall within this general description. The document did not memorialize any attorney-client communication and, contrary to defendants' argument, the document was not transmitted between an attorney and his client.

First, the conversation encapsulated in the 12-page document was not a communication between an attorney and his client. The dialogue was primarily between defense attorneys and defense experts. While the privilege may extend to the client's agents and employees, the privilege attaches to the client's communication as relayed by the representative,...

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3 books & journal articles
  • Using The Work Product Doctrine
    • United States
    • James Publishing Practical Law Books Archive Guerrilla Discovery - 2014 Contents
    • August 5, 2014
    ...by the work product rule and are discoverable only in very rare and extraordinary circumstances. Rico v. Mitsubishi Motors Corp., 10 Cal.Rptr.3d 601, 116 Cal. App. 4th 51 (2004). An attorney’s derivative or interpretive notes, including notes pertaining to an expert’s prior statements or op......
  • Using The Work Product Doctrine
    • United States
    • James Publishing Practical Law Books Archive Guerrilla Discovery - 2015 Contents
    • August 5, 2015
    ...by the work product rule and are discoverable only in very rare and extraordinary circumstances. Rico v. Mitsubishi Motors Corp., 10 Cal.Rptr.3d 601, 116 Cal. App. 4th 51 (2004). An attorney’s derivative or interpretive notes, including notes pertaining to an expert’s prior statements or op......
  • Using the work product doctrine
    • United States
    • James Publishing Practical Law Books Guerrilla Discovery
    • April 1, 2022
    ...by the work product rule and are discoverable only in very rare and extraordinary circumstances. Rico v. Mitsubishi Motors Corp., 10 Cal.Rptr.3d 601, 116 Cal. App. 4th 51 (2004). An attorney’s derivative or interpretive notes, including notes pertaining to an expert’s prior statements or op......

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