Second District Publishes Attorney Disqualification Opinion: Khani v. Ford Motor Company

by charlesjung

1961 Ford H-Series trucks

1961 Ford H-Series trucks (Photo credit: Wikipedia)

The Court of Appeal for the Second Appellate District yesterday ordered published Khani v. Ford Motor Company, et al., No. B239611, __ Cal.App.4th __ (2d Dist. Apr. 25, 2013).   Plaintiff, represented by attorney Shahian, brought a suit under California’s Song-Beverly Consumer Warranty Act (Civ. Code, § 1790, et seq., popularly known as California‘s Lemon Law) for defects in a 2008 Lincoln Navigator.

Ford moved to disqualify Shahian and his law firm.  Ford presented a declaration from Shahian’s former law firm which was Ford’s corporate counsel.  The declaration stated that Shahian worked on 150 cases, including California Lemon Law cases and was purportedly privy to confidential client communications and information relating to the defense of such cases. Shahian provided unspecified “input” to Ford‘s Office of General Counsel and Consumer Affairs and communicated regularly with Ford about lemon law cases.  The court granted the disqualification motion.

The Court of Appeal reversed:

The evidence in this case does not establish that any information to which Shahian was exposed during his representation of Ford would be material to his representation of Khani in this case. While Ford presented evidence that Shahian represented it in California Lemon Law cases, it did not establish that any confidential information about the defense in those cases would be at issue in this case. Neither the allegedly defective 2008 Lincoln Navigator nor its repair history by Galpin Motors was the subject of any lawsuit in which Shahian represented Ford. Takahashi‘s declaration does not show that Ford had any policies, practices, or procedures generally applicable to the evaluation, settlement or litigation of California Lemon Law cases at the time Shahian represented Ford, or that any such policies, practices, or procedures continued in existence unchanged between 2007 and 2011. Nor does it show that the same decision makers that were involved in cases Shahian handled for Ford are involved in this case.

The trial court abused its discretion in concluding that the prior cases were substantially related to the current case just because they involved claims under the same statute. The substantial relationship test does not subject an attorney to automatic disqualification on this ground alone. (See Banning Ranch Conservancy v. Superior Court (2011) 193 Cal.App.4th 903, 918 [successive representations in cases under 6 California Environmental Quality Act not substantially related].)1 The court also incorrectly assumed that Shahian‘s exposure to playbook information in prior lemon law cases was sufficient to disqualify him in this case without any showing of its materiality. (See Farris, supra, 119 Cal.App.4th at p. 680; see also Elliott v. McFarland Unified School Dist. (1985) 165 Cal.App.3d 562, 572 [conclusory statements insufficient].) Ford‘s bare-bones evidence in this case is insufficient to establish that Shahian‘s previous representation of Ford in California Lemon Law cases exposed him to confidential information that would be material to his current representation of Khani.

Judges & Attorneys

Presiding Justice Norman L. Epstein issued the opinion for the court.  Associate Justices Thomas L. Willhite, Jr. and Steven C. Suzukawa concurred.

Appeal from order of the Superior Court of Los Angeles County, Judge Amy D. Hogue.

Strategic Legal Practices, Payam Shahian, Gielegheim & Associates and Neil Gielegheim, for Plaintiffs and Appellants.

Baker & Hostetler, Mary L. Arens, Rosslyn Hummer, and Jack Samet for Defendants and Respondents.