1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOHNNY WAYFER, an individual, No. 2:24-cv-03097-JAM-AC 10 Plaintiff, 11 v. ORDER DENYING DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF’S 12 COSTCO WHOLESALE CORPORATION, COUNSEL a Washington Corporation; DOE 13 1 (STORE MANAGER); and DOES 2-50, INCLUSIVE 14 Defendants. 15

16 Before the Court is Costco Wholesale Corp.’s (“Defendant”) 17 motion to disqualify Plaintiff’s counsel. See Mot., ECF No. 5. 18 Johnny Wayfer (“Plaintiff”) opposes. See Opp’n, ECF No. 6. 19 Defendant replied, though it failed to comply with the Court’s 20 order regarding filing requirements. See Reply, ECF No. 8; Order 21 re Filing Requirements, ECF No. 2-2. For the following reasons, 22 Defendant’s motion is DENIED.1 23 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 24 Plaintiff originally filed suit in the Superior Court of 25 California, County of San Joaquin. See Notice of Removal, ECF 26

27 1This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for January 7, 2025. 1 No. 1. Defendant then timely removed the case to federal court 2 under diversity jurisdiction. See id.; see also 28 U.S.C. 3 § 1441. 4 This controversy arises out of Plaintiff’s slip and fall 5 while at Defendant’s store. See Notice of Removal at 2. 6 Plaintiff asserts causes of action for negligence and premises 7 liability. See id. 8 Defendant now moves to disqualify Plaintiff’s counsel, 9 Downtown L.A. Law Group (“DTLA”). See Mot. Defendant argues 10 that Anthony Werbin, a DTLA attorney who previously represented 11 Defendant, has not been timely and effectively screened. See id. 12 at 1-2. Plaintiff counters that Mr. Werbin is not affiliated 13 with this case and has been screened. See Opp’n at 4-5. 14 II. OPINION 15 A. Legal Standard 16 Motions for disqualification of counsel are governed by 17 state law. In re County of Los Angeles,

, 995 (9th 18 Cir. 2000). California law seeks to “protect the 19 confidentiality of the attorney-client relationship,” and 20 prohibits attorneys from accepting “employment adverse to the 21 . . . former client” without the former client’s written consent 22 if the attorney “has obtained confidential information material 23 to the employment.” People ex rel. Dep’t of Corps. v. SpeeDee 24 Oil Change Sys., Inc.,

(1999) (quoting 25 Cal. R. of Prof. Conduct 3–310(E)). A “former client may seek 26 to disqualify a former attorney from representing an adverse 27 party by showing the former attorney actually possesses 28 confidential information adverse to the former client.” H.F. 1 Ahmanson & Co. v. Salomon Bros.,

, 1452 2 (1999). 3 “Once the moving party in a motion for disqualification has 4 established that an attorney is tainted with confidential 5 information, a rebuttable presumption arises that the attorney 6 shared that information with the attorney’s law firm. The 7 burden then shifts to the challenged law firm to establish that 8 the practical effect of formal screening has been achieved. The 9 showing must satisfy the trial court that the tainted attorney 10 has not had and will not have any involvement with the 11 litigation, or any communication with attorneys or employees 12 concerning the litigation, that would support a reasonable 13 inference that the information has been used or disclosed.” 14 Kirk v. First Am. Title Ins. Co.,

, 809-10 15 (2010) (cleaned up). 16 The disqualification of counsel is “generally disfavored 17 and should only be imposed when absolutely necessary.” Concat 18 LP v. Unilever, PLC,

(N.D. Cal. 2004); 19 see also Sharp v. Next Ent. Inc.,

, 424 20 (2008). 21 B. Request for Judicial Notice 22 Under Federal Rule of Evidence 201, a district court may 23 take judicial notice of a fact that is “not subject to 24 reasonable dispute because it can be accurately and readily 25 determined from sources whose accuracy cannot reasonably be 26 questioned.” Fed. R. Evid. 201(b)(2). A court “may take notice 27 of proceedings in other courts, both within and without the 28 federal judicial system, if those proceedings have a direct 1 relation to matters at issue.” Trigueros v. Adams,

(9th Cir. 2011) (citation omitted). 3 Defendant requests that the Court take judicial notice of 4 other court proceedings, declarations, and complaints filed by 5 Mr. Werbin when he represented Defendant. See Request for 6 Judicial Notice, ECF No. 5-1. Plaintiff opposes Defendant’s 7 request in its entirety, stating that the Court can take 8 judicial notice only for the existence of these documents, not 9 for the truth of the matters asserted therein. See Plaintiff’s 10 Opposition to Judicial Notice, ECF No. 6-1. 11 Because all requested documents “have a direct relation to 12 matters at issue” in this case, the Court GRANTS Defendant’s 13 request in its entirety. See U.S. Ex. Rel. Robinson Rancheria 14 Citizens Council v. Boreno, Inc.,

(9th Cir. 15 1992). However, as Plaintiff points out, the Court takes 16 judicial notice only of the existence of these documents, not of 17 the truth asserted in them. See Von Saher v. Norton Simon 18 Museum of Art at Pasadena,

(9th Cir. 2010). 19 C. Disqualification 20 The Court assumes arguendo that Defendant has met its 21 burden of demonstrating a “substantial relationship” between 22 this case and the cases in which Mr. Werbin represented 23 Defendant. See Antelope Valley Groundwater Cases,

5th at 617. The Court therefore focuses on whether DTLA has 25 screened Mr. Werbin. 26 While the “elements of an effective screen” vary, two 27 elements are essential: (1) the screen must be timely imposed 28 before a court’s order on the disqualification motion; and 1 (2) the firm must impose “preventive measures to guarantee that 2 information will not be conveyed.” Kirk,

810. Other elements of a screen include the physical separation 4 of attorneys, prohibitions on discussing confidential matters, 5 established rules preventing access to confidential information, 6 procedures preventing a disqualified attorney from sharing in 7 the profits from the representation, and continuing education in 8 professional responsibility.

. 9 Based on the evidence provided, DTLA has met its burden of 10 showing that it has an effective screening in place. Mr. Werbin 11 has never been assigned to this case. Declaration of Anthony 12 Werbin ¶ 14, ECF No. 6-4. He does not discuss cases concerning 13 Defendant with other attorneys at DTLA.

He also will not 14 share in any of the profits from DTLA’s representation of this 15 matter. Id. ¶ 15. Defendant provides no evidence contradicting 16 these statements. 17 Most importantly, Mr. Werbin cannot access any documents 18 related to this case because DTLA implemented a software change 19 in December 2021 that prohibits him from accessing any cases 20 that involve Defendant. Id. ¶ 16. The only crack in this 21 screen that Defendant mentions is that Mr. Werbin was 22 inadvertently listed as counsel of record for a case involving 23 Defendant in 2024, but even then he was not able to access any 24 documents or information related to that matter. See id. ¶ 23; 25 Mot. at 6-7. Another DTLA attorney, Alex Vandenberg, declares 26 that he was the counsel of record for that case involving 27 Defendant, and that his name and Mr. Werbin’s were mistakenly 28 switched by the administrative employee who filed the 1 complaints. See Declaration of Alex Vandenberg ¶¶ 3-4, ECF No. 2 6-2. Notably, DTLA took disciplinary action against this 3 administrative employee for her mistake because it created the 4 appearance of an ethical breach, and DTLA confirmed that—despite 5 the mislabeling of counsel of record on the court filing—Mr. 6 Werbin did not have access to the case file or any related 7 documents. See Declaration of Amira Rezkallah ¶¶ 8-10, ECF No. 8 6-3. 9 Because these preventive measures were implemented before 10 this litigation started, DTLA has shown that “the practical 11 effect of formal screening has been achieved” such that Mr. 12 Werbin “has not had and will not have any involvement with the 13 litigation, or any communication with attorneys or employees 14 concerning the litigation.” See Kirk,

. 15 D. Sanctions for Failure to Comply with the Court’s Order 16 Defendant’s Reply exceeded the Court’s page limit. See 17 Order re Filing Requirements at 1. Defendant’s Reply was ten 18 pages, and the filing requirements limit this brief to five pages 19 and call for sanctions of $50 per page exceeding the limit. See 20 id.; Reply. Local Rule 110 authorizes the Court to impose 21 sanctions for “failure of counsel or of a party to comply with 22 . . . any order of the Court.” Therefore, Defendant’s counsel, 23 Nathaniel Dunn, is ordered to pay $250.00 to the Clerk of the 24 Court. 25 III. ORDER 26 Because the Court finds that DTLA has imposed a timely and 27 effective screen, Defendant’s motion to disqualify Plaintiff’s 28 counsel is DENIED. em ROI OE ISIE EO

1 It is further ordered that, within ten (10) days of this 2 Order, Nathaniel Dunn shall pay sanctions of $250.00 to the Clerk 3 of the Court. 4 IT IS SO ORDERED. 5 Dated: January 10, 2025

FM ney JOHN A. MENDEZ 8 SENIOR UNITED*STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28