Monday, April 29, 2013
C.A. Overturns Order Barring Ex-Ford Motor Co. Lawyer From Opposing Company in ‘Lemon Law’ Case
By a MetNews Staff Writer
A lawyer who sued Ford Motor Co. for selling his client a defective automobile should not have been disqualified merely because he handled the same types of cases when he worked for Ford four years earlier, the Court of Appeal for this district has ruled.
The ruling brings Payam Shahian and his firm, Strategic Legal Practices, back into Benham Khani’s suit against Ford and Galpin Motors, Inc. under the Song-Beverly Consumer Warranty Act, better known as the Lemon Law, based on sale of a 2008 Navigator. The law requires the maker of a defective new car, or its authorized dealer, to honor an express written warranty by repairing the vehicle, and to replace the vehicle or refund the purchase price if the car cannot be satisfactorily repaired after a reasonable number of attempts.
The opinion by Presiding Justice Norman Epstein for Div. Four was filed April 2 and certified Thursday for publication.
In support of its motion to disqualify Shahian, Ford provided a declaration from Brian Takahashi, an attorney at his former firm. The declarant said that Shahian regularly represented Ford in Lemon Law cases, that he was “privy to confidential client communications and information relating to the defense of” such cases, and that he regularly communicated with Ford about Lemon Law cases.
Los Angeles Superior Court Judge Amy Hogue reasoned that the legal issues in Lemon Law cases are substantially similar, and that Ford was entitled to a presumption that Shahian was exposed to confidential information, and granted the motion.
But Epstein, writing for the Court of Appeal, said the ruling was legally erroneous because Ford failed to show that the cases were substantially related. The trial judge’s assumption that all Lemon Law cases are substantially related because the legal issues are similar was mistaken, he said.
“The substantial relationship test requires comparison not only of the legal issues involved in successive representations, but also of evidence bearing on the materiality of the information the attorney received during the earlier representation,” he explained.
Epstein distinguished Farris v. Fireman’s Fund Ins. Co. (2004) 119 Cal.App.4th 671, in which an attorney who had represented an insurer as coverage counsel for 10 years was barred from representing the plaintiff in a bad faith case six months after his last case for the insurer. The court noted that procedures the attorney had helped establish when he worked for the insurer would likely be at issue, and that people with whom he had worked closely would likely be witnesses.
Shahian, on the other hand, had not represented Ford in four years, Epstein noted. And the declaration claiming he had acquired confidential information, the jurist said, did not explain how that information related to Khani and his Ford Navigator.
“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,” Epstein wrote. “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 jurist went on to explain that a substantial relationship between a pending case and an attorney’s former work will not, in and of itself, constitute grounds for disqualification. “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,” he concluded.
Because the disqualification was erroneous, Epstein added, it was unnecessary to rule on Shahian’s argument that the motion to disqualify, brought nearly three months after he rejected the defendant’s request that he withdraw, was untimely.
Attorneys on appeal were Shahian, along with Neil Gielegheim of Gielegheim & Associates, for the plaintiff and Baker & Hostetler’s Mary L. Arens, Rosslyn Hummer, and Jack Samet for the defendants.
The case is Khani v. Ford Motor Co., 13 S.O.S. 2092.
Copyright 2013, Metropolitan News Company