Snider v. Superior Court

• Citation: 113 Cal.App.4th 1187,7 Cal.Rptr.3d 119
• Decision Date: 03 December 2003
• Docket Number: No. D041788.,D041788.
• Court: California Court of Appeals
• Parties: David SNIDER, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent, Quantum Productions, Inc., Real Party in Interest.

7 Cal.Rptr.3d 119

113 Cal.App.4th 1187

David SNIDER, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent, Quantum Productions, Inc., Real Party in Interest.

No. D041788.

Court of Appeal, Fourth District, Division 1.

December 3, 2003.

Clinton M. Sandvick for Petitioner.

No appearance for Respondent.

Law Offices of James E. Lund, James E. Lund, Escondido, and Nathan Low for Real Party in Interest.

NARES, J.

In this petition for writ of mandate (petition) we are presented with the question whether the trial court properly disqualified attorney Dale Larabee from representing petitioner David Snider because of his contacts with two employees, one a sales manager and the other a director of production, of respondent Quantum Productions, Inc. The court found that Larabee violated California's State Bar Rules of Professional Conduct, rule 2-100¹ that provides in part:

"(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.

"(B) For purposes of this rule, a `party' includes:

"(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or

"(2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization." (Italics added.)

We conclude that there was no violation of rule 2-100 as the contacted employees were not "represented parties" within the scope of that rule as (1) they were not "officer[s], director[s] or managing agent[s]" of the organization;² (2) the subject matter of the communications was not an act or omission of the employees that could be binding or imputed to the organization; and (3) they were not employees whose statements might constitute admissions on behalf of the organization. We further conclude that if the employees were subject to rule 2-100, the court still erred in ordering the disqualification of Larabee as the evidence did not show that he had actual knowledge the employees were represented parties. Accordingly, we grant Snider's petition and order the superior court to vacate its order disqualifying Larabee and his firm from representing Snider in this action.

We emphasize, however, that counsel desiring to contact an employee of a represented organization should endeavor to ensure, prior to the contact, that the employee, either because of his or her status within the organization or the subject matter of the proposed communication, does not come within the scope of rule 2-100. Further, once contact is made, counsel should at the outset pose questions designed to elicit information that would determine whether the employee comes within rule 2-100's scope and should not ask questions that could violate the attorney-client privilege. By the same token, if organizations do not want employees within the scope of rule 2-100 to have contact with opposing counsel, it is incumbent upon them to take proactive measures to ensure that the employees and opposing counsel understand the organization's position. Ethical violations and unnecessary litigation over such ex parte contacts would largely be obviated by prudent actions taken by counsel and organizations in applying rule 2-100.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Snider was employed by Quantum, an event design and construction company, as a sales manager. In 2002 Snider resigned and formed Gardenia Design Group (Gardenia), which Quantum alleged was in direct competition with Quantum. Quantum also alleged that Snider misappropriated confidential and secret business information from Quantum and used that information to compete with Quantum. In July 2002 Quantum filed a complaint against Snider and Gardenia, alleging misappropriation of trade secrets, breach of contract, intentional interference with contractual relations and prospective economic advantage, and unfair competition.³ Snider denies Quantum's allegations.

B. Procedural Background

1. The motion to disqualify

In the joint trial readiness report filed with the court prior to trial, Quantum listed as a percipient witness, among others, its employee Toni Lewis. Snider and Gardenia listed as percipient witnesses, among others, Lewis and Laura Janikas, also a Quantum employee.

Thereafter, between the joint trial readiness conference and trial, Larabee contacted Lewis and Janikas to talk with them about the pending case. When counsel for Quantum discovered the contacts, he brought a motion for a trial continuance and to disqualify Larabee from representing Snider (motion to disqualify).

In support of the motion to disqualify, Quantum submitted the declaration of its president, Pam Navarre, as well as declarations from Janikas and Lewis. In Navarre's declaration she stated that Quantum employs approximately 40 people. She stated that she and Quantum's vice-president, Bill Hardt, were the only executive-level personnel at the company. She further stated that below the executives in the company were two sales managers, a director of operations, and a director of production. Janikas was a sales manager, and her duties included selling Quantum's goods and services and supervising two subordinate employees. She was also responsible for enforcing Quantum's rules, policies and procedures. Janikas had the authority to direct all work by others in the company in relation to the goods and services she contracted to provide on behalf of Quantum. According to Navarre, the position of sales manager was a position of great confidence in the company and she relied on the counsel and input of Janikas in making corporate policies and decisions. Navarre did not describe Lewis's position at Quantum.

In her declaration, Janikas described her work for Quantum as including "management responsibilities." She stated that she had been aware of the litigation for months but had not discussed it at length with her superiors. She stated that in January 2003 Larabee called her at home on two occasions and left messages for her. She returned one of his calls and left a message for Larabee. Larabee was able to reach her on her work cellular phone. According to Janikas, she talked to Larabee for about 10 minutes.

Janikas stated that Larabee "asked [her] many questions about this lawsuit, and made [her] feel like [she] was on the witness stand." He asked her if she knew the "real reason" why Quantum had sued Snider. She replied that she understood that he had been sued because he breached his contract with Quantum. Larabee asked if she had seen Snider's contract with Quantum. She replied that she had not. Larabee asked her if she had signed a contract. She replied that she had, as had all other employees. Larabee asked her what she thought the contract meant, and Janikas attempted to explain it to him. Larabee asked Janikas if Quantum sold wedding services before Snider quit. She responded that it did. Larabee also asked her about a meeting of key employees in October 2001. Larabee also asked her if she took a pay cut after September 11, 2001, and whether that made her want to leave Quantum. He asked her "many more questions" that she could not remember. At the end of the conversation Larabee asked her if Quantum's counsel had ever called and talked to her. She responded that he had not.

In her declaration, Lewis stated that she was the director of productions for Quantum, and described her work there, which included supervising the production department and its 19 employees. Larabee first called her before Christmas 2002. He left a message on her work cellular phone number saying that he wanted to meet her. Larabee left several additional messages for her and she eventually returned his calls in January 2003. She agreed to meet with him at his offices, but she did not make the appointment. According to Lewis, Larabee never asked her if counsel represented her.

Larabee filed a declaration in opposition to Quantum's motion. In that declaration he stated that he had no intention of calling Janikas or Lewis as witnesses in the case. He also confirmed that he never spoke with Lewis concerning the case; his only conversations with her were unsuccessful attempts to set up a meeting. He stated that he had asked both Janikas and Lewis if counsel for Quantum had talked to them about trial testimony and they both stated that they had not. Before contacting them, he asked Snider what duties and responsibilities they had. Snider told Larabee that they were salespeople with no corporate responsibility. Based upon this he concluded that they were not within the "control group" of Quantum's management and he did not believe that they could bind or make an admission on behalf of the organization. Larabee only wanted to ask them about matters of which they had percipient knowledge, particularly about a meeting in the Fall of 2001 when Navarre told the employees that business was bad and that if they wanted to look for another job they could do so. Larabee admitted asking Janikas if she had any idea why Snider had been sued. According to Larabee, she stated that she did not.

Larabee also stated that he told Janikas and Lewis that he was Snider's counsel and they did not have to talk to him if they did not want to. He stated that Lewis had called him back as many times as he called her and that she wanted to talk to Larabee. According to Larabee, Lewis also contacted Snider on her own and told Snider that she had to rewrite her declaration multiple times because Quantum's attorneys did not like it and that they ...