Mattel, Inc. v. MGA Entertainment, Inc. , 408 F. App'x 45 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MATTEL, INC., a Delaware No. 10-57048
corporation,
D.C. No. 2:04-cv-09049-DOC-
Defendant-counter-claimant - RNB
Appellee,
v. MEMORANDUM *
MGA ENTERTAINMENT, INC.; MGA
ENTERTAINMENT (HK) LIMITED, a
Hong Kong Special Administrative
Region business entity; MGAE DE
MEXICO, S.R.L. DE C.V., a Mexico
business entity; ISAAC LARIAN, an
individual,
Counter-defendants - Appellants.
__________________________________
CARTER BRYANT, an individual,
Plaintiff-counter-defendant,
CARLOS GUSTAVO MACHADO
GOMEZ, an individual,
Counter-defendant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
MGA ENTERTAINMENT, INC.; MGA No. 10-80235
ENTERTAINMENT (HK) LIMITED, a
Hong Kong Special Administrative D.C. No. 2:04-cv-09049-DOC-
Region business entity; MGAE DE RNB
MEXICO, S.R.L. DE C.V., a Mexico
business entity; ISAAC LARIAN, an
individual,
Plaintiffs - Petitioners,
v.
MATTEL, INC., a Delaware
corporation,
Defendant - Respondent.
Before: KOZINSKI, Chief Judge, TROTT and WARDLAW, Circuit
Judges.
1. We lack jurisdiction to consider MGA’s interlocutory appeal of the
district court’s disqualification order. See 28 U.S.C. § 1292(b); Couch v.
Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010); Cole v. U.S. Dist. Ct., 366 F.3d
813, 817–18 n.4 (9th Cir. 2004). Nor do we have jurisdiction under the collateral
order doctrine. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440 (1985).
2. We deny MGA’s petition for a writ of mandamus. See Plata v.
Schwarzenegger, 560 F.3d 976, 983 (9th Cir. 2009) (listing factors to consider).
page 3
Most importantly here, the district court’s disqualification order was not “clearly
erroneous as a matter of law.” Id. Timesheets show that Ms. Basinger previously
represented Mattel in this case, and her supervising attorney declared under penalty
of perjury that he shared trial strategies and other confidential information with
her. Ms. Basinger says she can’t remember working on the case, but doesn’t
dispute the evidence to the contrary. In these circumstances, disqualification may
indeed have been mandatory under California law. Here’s how the Second District
Court of Appeal recently put it in Kirk v. First American Title Insurance Co.:
[V]icarious disqualification should be automatic in cases
of a tainted attorney possessing actual confidential
information from a representation, who switches sides in
the same case . . . . [W]hen a tainted attorney moves
from one private law firm to another, the law gives rise to
a rebuttable presumption of imputed knowledge to the
law firm, which may be rebutted by evidence of effective
ethical screening. However, if the tainted attorney was
actually involved in the representation of the first client,
and switches sides in the same case, no amount of
screening will be sufficient, and the presumption of
imputed knowledge is conclusive.
108 Cal. Rptr. 3d 620, 637, 649 (Cal. Ct. App. 2010) (Croskey, J.).
This squares with Henriksen v. Great American Savings & Loan, 11 Cal.
App. 4th 109 (Cal. Ct. App. 1992). There the Court of Appeal addressed “whether
a law firm may continue to represent a client where during the pendency of
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litigation it hires an associate who formerly represented the adverse party in the
same proceeding.” Id. at 111. It held that “the associate’s disqualification results
in the vicarious disqualification of the entire law firm . . . . even if the law firm
takes measures to insulate the new associate from any involvement in the current
litigation.” Id. The court summarized the rule it found “to be quite clear cut in
California: where an attorney is disqualified because he formerly represented and
therefore possesses confidential information regarding the adverse party in the
current litigation, vicarious disqualification of the entire firm is compelled as a
matter of law.” Id. at 117.
What is left unclear is whether the absolute vicarious disqualification rule
applies even where the representation of the first client was brief and fairly minor,
and the lawyer who switches firms is insulated from the litigation team working for
the second client by an ethical wall—as in our case. See Kirk, 108 Cal. Rptr. 3d at
637 n.20. Given the uncertainty as to the status of California law on this subject,
the district court wouldn’t have been clearly erroneous, whichever course it
adopted on the disqualification motion.
Nor do we see any clear abuse of discretion in the court’s denial of a
continuance on the eve of trial. See Danjaq LLC v. Sony Corp., 263 F.3d 942, 961
page 5
(9th Cir. 2001). None of the circumstances in this case persuade us that mandamus
relief is appropriate. See Plata, 560 F.3d at 983.
3. MGA’s motion to stay the trial is denied as moot.
Appeal DISMISSED. Petition for writ of mandamus DENIED.