Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association

MCLE Article:  Screened Out

When an ethical screen can be used to avoid vicarious disqualification of a law firm remains unsettled

By Ronald R. St. John

Ronald R. St. John is a partner in Barton, Klugman & Oetting, LLP, in Los Angeles, where he specializes in commercial and real estate litigation.

By reading this article and answering the accompanying test questions, you can earn one MCLE legal ethics credit. To apply for credit, please follow the instructions on the test.

Parties who seek to disqualify law firms that employ a former public sector attorney with a conflict will not succeed when appropriate ethical screens are in place.1 The law is different, however, when an attorney with a conflict moves from one private sector firm to another. Under those circumstances, appellate courts in California have held that no form of ethical screen will ever suffice to prevent the imputation of knowledge from a firm's new attorney to his or her partners and associates, and thus disqualification is required if the new representation involves the same subject matter as the attorney's prior representation.2 The validity of this holding has been questioned in federal court,3 but cases decided by state courts subsequent to the ruling in the federal case have nevertheless cited the prior state law decisions as authoritative.4 The use of ethical screens to avoid disqualification in cases involving private sector attorneys may be desirable and a worthy public policy goal, but courts remain uncertain about the validity of the procedure in nongovernmental settings.

The California Supreme Court has spoken twice on the issue of ethical screens. In the 1994 case of Flatt v. Superior Court,5 the court in dicta endorsed a "clear cut" rule that "[if] 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." In 1999, however, in People ex rel. Department of Corporations v. SpeeDee Oil Change Systems, Inc.,6 the supreme court, whether by intent or inadvertence, indicated some equivocation toward an absolute rule of vicarious disqualification in California.

SpeeDee Oil involved a multiparty franchise dispute in which one of the parties, Mobil Oil, consulted an attorney regarding what steps to take in the litigation. By doing so, the party revealed confidences without realizing that the attorney was of counsel to Shapiro, Rosenfeld & Close, a firm representing another party in the litigation. The supreme court discussed three federal--cases cited by the party opposed to disqualification, noting that two of the federal cases--INA Underwriters Insurance Co. v. Rubin7 and Hughes v. Paine, Webber, Jackson & Curtis Inc.8--had found the presumption of shared confidences to be rebuttable by a showing that the attorney at issue was "effectively screened." In distinguishing these cases, the court stated:

Even though INA and Hughes applied a more lenient approach to conflicts disqualification than prevails in California (see, e.g., Henriksen v. Great American Savings & Loan…), neither case suggests that a rebuttable presumption of shared confidences ought to apply in the circumstances present here. In any event, we need not consider whether an attorney can rebut a presumption of shared confidences, and avoid disqualification, by establishing that the firm imposed effective screening procedures. The declarations the Shapiro firm submitted fail to demonstrate that any formal screening procedure prevented attorneys working on respondents' behalf from being exposed to Mobil's confidences.9

The language of the court in SpeeDee Oil has created an ambiguity, leaving later appellate decisions to speculate about the possible use of ethical screens in situations not involving former government attorneys. Prior California authorities had established an absolute rule, which made it irrelevant that the Shapiro firm had not established effective screens. Nevertheless, the mere fact that the supreme court was willing to consider the efficacy of the screens implies that there might not be an absolute rule.

Legal Landscape before SpeeDee Oil

California authority on this subject began germinating as early as 1976 in the case of In re Charles L.10 In that case, a criminal defendant's public defender joined the district attorney's office, and the defendant tried to disqualify the entire district attorney's office from prosecuting him. The court only had out-of-state authority for the proposition that one attorney's knowledge of confidential information requiring disqualification would extend to the entire firm, and the court decided not to apply the doctrine of imputed knowledge to the district attorney's office. There was no discussion of the measures, if any, that insulated the new prosecutor from involvement with the prosecution of his former client, but the court noted that the deputy district attorney prosecuting the case professed complete ignorance of the defendant's former attorney.11

The 1980 case of Chadwick v. Superior Court also involved a public defender crossing over to the district attorney's office. The court cited with approval an ABA opinion that imputed knowledge does not apply to government attorneys, who lack the financial incentive to assist their colleagues that exists in the private sector.12 Before discussing imputed knowledge, the court noted the internal procedure for isolating the new prosecutor from his former clients' cases: "As we have seen, Mr. Jennings not only will not prosecute these cases, he has been entirely removed from them. He has sworn not to betray his professional obligations, and under the circumstances presented, it may be presumed that he will not."13

The importance of ethical screens as an antidote to imputed knowledge and disqualification emerged as a forefront issue in Chambers v. Superior Court,14 a 1981 case involving an attorney who had defected from the Department of Transportation. The Shasta County Superior Court had disqualified the former DOT attorney's new firm from suing the state over unsafe roads. The Third District Court of Appeal issued a writ forcing reinstatement of the firm, treating the issue of the vicarious disqualification of a former government employee's current law firm as a matter of first impression in California.15

The Chambers court cited numerous federal cases, as well as disciplinary rules and formal opinions from the ABA. The long shadow of the ABA in this controversy is curious given that California has not adopted the ABA Model Rules, but the ABA's pronouncements in the area were so prolific that they filled the vacuum left by the absence of California authority. The Chambers court examined ABA Formal Opinion No. 342 to find policy considerations regarding a party's right to its chosen counsel, the employment prospects of the disqualified attorney, and the potential harm to the ability of government to attract talented young attorneys.16 The court's discussion of the need to allow ethical screens to avoid vicarious disqualification was arguably dicta, given the court's conclusion that there was no evidence that the former DOT attorney had any responsibility over matters related to the new action, or that he acquired confidential information regarding the action. But the court proceeded to rule that "moreover" the new firm had "undertaken sufficient protective measures to screen [the attorney] from any participation in the subject action."17 This latter finding was the primary thrust of the rest of the court's opinion.

The use of ethical screens to avoid disqualification of law firms that hire former government attorneys has gone unquestioned in later cases.18 This is the one area in which ethical screens can be used with confidence.

Raising Questions about Klein and Henriksen

When the California Supreme Court in its 1994 Flatt decision19 stated in dicta that vicarious disqualification is required "as a matter of law,"20 it was taking language from a 1992 First District Court of Appeal case, Henriksen v. Great American Savings & Loan.21 The Henriksen court for its part found authority for what it described as a "clear cut" rule from an earlier Sixth District case, Klein v. Superior Court.22 An examination of the earlier authority, however, raises questions about the basis of the Klein and Henriksen decisions.

Shortly after Chambers was decided in 1981, the Fourth District Court of Appeal considered a conflict case involving the private sector, William H. Raley v. Superior Court. In Raley,23 the El Centro office of San Diego firm Gray, Cary, Ames & Frye represented a tenant suing a gravel pit owner in a lease dispute. The defendants discerned that one of Gray, Cary's downtown partners was a board member and a trust investment committee member for the bank that owned, as trustee, all the stock in one of the defendants.

Raley differs from the other vicarious disqualification/ethical screen cases in several respects. The screened partner was not, in a technical sense, involved in the case as a result of a legal representation, and the partner's alleged conflict was ongoing rather than in the past. Nevertheless, the conflict of interest analysis was very similar to the other cases, and the issue of ethical screens was squarely presented. The Gray, Cary firm had put in place screening measures to insulate the partner who was connected to the bank. The court considered arguments that the screening procedure could serve as an alternative to disqualification, and Chambers was cited as authority that "mechanical application of the vicarious disqualification rule can be harsh and unfair to both a law firm and its client."24 Thus the court was clearly implying that screening procedures would have been acceptable and would have obviated the need for disqualification if the procedures had been sufficient. They were not, according to the court, and the court issued a writ requiring disqualification of Gray, Cary, with the court also citing the problem of the ongoing nature of the partner's involvement with the bank. The case can be distinguished as one involving concurrent representation problems as opposed to successive representation.25 Perhaps ethical screens are impossible in the context of concurrent representation, but they may be feasible in the case of successive representation.

In 1984, the Third District Court of Appeal decided Dill v. Superior Court, in which it distinguished its decision in Chambers.26 The attorney in Dill moved from the plaintiff's firm to the defendant's firm in the middle of a case after making appearances for the plaintiff's side and taking two depositions. This situation was viewed as one for which ethical screens would not suffice in avoiding vicarious disqualification. The Dill court distinguished Chambers on two grounds: Chambers addresses disqualification for a public sector attorney, and Chambers does not involve prior representation in the same case.27 In discussing Chambers, the Dill court noted that "vicarious disqualification of a former government employee's law firm is not imposed as strictly as it is in other instances"--but if there were an "absolute rule" of disqualification in private sector cases, it would not have been necessary to discuss the other aspects of the case requiring disqualification. In the Dill court's holding, it emphasized that "the compelling reason for disqualification" was the attorney's "personal involvement in the identical action."28

Just a few years after the Chambers, Raley, and Dill decisions, the Sixth District in Klein asserted an absolute rule of vicarious disqualification in private sector cases.29 Klein involved a multiparty dispute over the handling of an estate. A partner at the plaintiff's firm had represented one of the defendants in matters relating to the estate while that partner was affiliated with a different firm. The trial court had ordered the individual attorney disqualified and "decreed a Chinese wall, forbidding [him] from taking any part in this action or communicating any information about his prior dealings with [the defendant] to the Plaintiffs."30 This result was reversed by a writ of mandate.

The Klein court devoted five pages to discussing the authority on vicarious disqualification and ethical screens. Klein distinguishes Chambers on the ground that it is applicable only to former government attorneys. The dicta in Raley requiring consideration of an ethical screen to avoid disqualification is acknowledged but rejected. In order to reject the Raley dicta, the Klein court analyzed the three California cases cited by Raley as authority. The Klein court discredited the Raley dicta by distinguishing each of those cases. One of the three cases cited by Raley was Chambers, which Klein notes was limited to former government attorneys. According to Klein, the other two cases do not constitute conflict of interest cases. Instead, they involve punitive disqualification for improper communications with a party represented by counsel.31 The Klein court took the absence of any reported California decision in which ethical screens were endorsed in a private sector case and bootstrapped that fact into an absolute rule of vicarious disqualification:

Clearly, the California precedent has not rushed to accept the concept of disqualifying the attorney but not the firm, nor has it enthusiastically embarked upon erecting Chinese walls. Aside from two limited exceptions--the former government attorney (Chambers) and the punitive disqualification, not for conflict of interest but for improper communication (Chronometrics and Mills)--no California case appears to have permitted disqualification of the individual attorney for a conflict without disqualifying his law firm.…

It is our opinion that in this case, unless we were prepared to reverse the trial court decision to disqualify Glickman, we could not, consistent with the precedent, permit the Fenwick firm to continue to represent Plaintiffs.…

Accordingly, because Glickman has been disqualified, the Fenwick firm in which he is a partner must similarly be disqualified from further representing Plaintiffs in this matter.32

The Klein court required vicarious disqualification without discussing any reasons why the proposed ethical screening devices proposed were inadequate, and the case can only be reasonably read as announcing an absolute rule.

Nevertheless, the Klein court's claim that disqualification could not be denied "consistent with precedent" was not true. Every California case decided before Klein was consistent with the rule that vicarious disqualification could be avoided if the affected attorneys could demonstrate that client confidences could be preserved by an effective ethical screen. The federal decisions and the ABA authorities all assumed the possibility of ethical screens as well.

In the Chambers decision, there were other rationales for the use of ethical screens to avoid disqualification aside from the status of the attorneys as former government attorneys. These included the impact on the client of a separation from the client's counsel of choice, and the fact that disqualification motions are often interposed for tactical reasons.33 These factors apply with equal force in private sector cases. In the handful of reported decisions in California in which the issue of vicarious disqualification of an attorney's new firm was squarely addressed, the fact that none had endorsed ethical screening yet is not any logical authority for the proposition that none ever would.

In 1991, the Fifth District did not discuss Klein and gave ethical screens a boost in its decision in Higdon v. Superior Court.34 The case involved a former court commissioner who had sat as a judicial officer on a divorce case and was later an associate of a firm representing one of the parties in the divorce action. The Higdon court cited Chambers, Raley, and the ABA authorities as support for remanding the matter for a hearing on whether ethical screens could be sufficient to avoid vicarious disqualification. Still, the Higdon ruling did not in any way slow down the Klein momentum. For one thing, the former court commissioner had not been privy to any confidential information.

Thus, notwithstanding Higdon, Klein's absolute rule of disqualification was followed in 1992 when the First District Court of Appeal decided Henriksen.35 The case involved a construction loan dispute, in which an associate from the defendant's firm switched sides and began working for the plaintiff's firm during the pendency of the litigation. Henriksen is essentially a reiteration of Dill, with a twist. The Dill court held that no ethical screen was sufficient. The Henriksen court went further, citing Klein's exposition of the law with approval and announcing its "clear cut" rule in California--picked up and repeated by Flatt--that "vicarious disqualification of the entire firm is compelled as a matter of law."36 Henriksen does not limit its statement of the rule to concurrent representation cases. Moreover, Henriksen's statement gained considerable weight when it was endorsed in dicta by the California Supreme Court in Flatt.37

The next court to join the fray was the Second District in Cho v. Superior Court,38 which involved a former judge who joined a law firm after conducting a settlement conference involving the matter at issue. The case was Higdon revisited, except the judicial officer in Cho received confidential information in the course of the settlement conference. The case could be distinguished as involving special concerns about the judicial process. But in rejecting the possibility of any ethical screen, Justice Epstein used language that has been frequently quoted in subsequent cases:

No amount of assurances or screening procedures, no "cone of silence," could ever convince the opposing party that the confidences would not be used to its disadvantage. When a litigant has bared its soul in confidential settlement conferences with a judicial officer, that litigant could not help but be horrified to find that the judicial officer has resigned to join the opposing law firm--which is now pressing or defending the lawsuit against that litigant. [footnote omitted.] No one could have confidence in the integrity of a legal process in which this is permitted to occur without the parties' consent.39

When the California Supreme Court decided SpeeDee Oil40 in 1999, in the wake of Klein and Henriksen, its ambiguity regarding the absolute rule of vicarious disqualification in California was as puzzling as its language. The supreme court cited Henriksen's unequivocal decision in favor of an absolute rule of vicarious disqualification as the only representation of California law. Moreover, with California law governing the case, the discussion about whether the law firm in SpeeDee Oil had any effective screening procedures seems to be entirely superfluous. So why was it included? Justice Mosk anticipated how the discussion might be interpreted and filed a concurring opinion in which he emphasized that the case involved a "straightforward question of law, not of fact," and that regardless of any "ethical screen," disqualification was "automatic."41

Post-SpeeDee Oil Issues

Just a year after SpeeDee Oil, in 2000, the Ninth Circuit applied California law to a disqualification motion in In re County of Los Angeles,42 a police brutality case in which the plaintiff's lawyer had a partner who was a former magistrate. The magistrate had participated in a settlement conference in an unrelated but similar case involving one of the same police officers. The Ninth Circuit took up the question of whether, under California law, "a law firm can rebut the presumption of shared confidences by taking prophylactic measures, such as building an ethical wall, to prevent the passing of information from the tainted lawyer to other members of the firm."43 The opinion acknowledges that the California courts of appeal have developed a general rule that the presumption is not rebuttable, citing Henriksen and Klein. But the Ninth Circuit also looked at the language from the SpeeDee Oil majority regarding the necessity of considering "effective screening procedures" and read the case as "sending a signal that the California Supreme Court may well adopt a more flexible approach to vicarious disqualification."

It is really not possible to reconcile County of Los Angeles with Cho, Henriksen, and Klein. To cite any of the three latter cases as authority for an absolute rule of vicarious disqualification is to disagree with the assessment of California law in County of Los Angeles.

In 2001, the crack in California's resolve to maintain an absolute rule of vicarious disqualification grew a little wider in the Third District's decision in Adams v. Aerojet-General Corporation.44 This case involved an attorney formerly associated with a firm that, if it had been a participant in the case, would have been in conflict with the attorney's current representation. However, the attorney had never worked on the subject matter of the representation at his prior firm. The court refused to impute the knowledge of the old firm to the attorney, despite the fact that if the attorney had garnered actual knowledge from his service at the old firm, it would have been imputed to his current firm. The court cited the modern-day realities of job changes and large firm practice, among other things, as creating a policy that militated against the imputation of firm knowledge to the attorney when the attorney had no actual knowledge of the prior representation.45

In its general statement of the law regarding vicarious disqualification, the Adams court cited Henriksen (and the citation to Henriksen in Flatt) to support the general rule that disqualification extends to the entire firm. However, it did so while adding the caveat "at least where an effective ethical screen has not been established" and citing the SpeeDee Oil language quoted by the Ninth Circuit.46 Without citing County of Los Angeles, the Third District quietly acknowledged the resurrection of ethical screens.

The temptation is to draw on practical policy considerations--such as the nature of modern law practice, the right of innocent clients to the counsel of their choosing, and the reality of the tactical use of disqualification motions as a means to create delay and increase costs--to justify an embrace of the federal courts' liberal policy of allowing ethical screens to avoid disqualification. Yet the California Supreme Court is only on the record with two endorsements of the absolute rule from Henriksen and a superfluous observation in dicta prefaced with the words "in any event we need not consider." Three separate cases that have not yet earned red flags in the citing services stand firmly behind an absolute rule, and even SpeeDee Oil can be quoted convincingly as supporting the absolute rule. But SpeeDee Oil's discussion of the possibility of an ethical screen still creates an ambiguity as to the continued authority of an absolute rule. In the 2004 case City and County of San Francisco v. Cobra Solutions, Inc.,47 the First

District supported in dicta the absolute rule of disqualification but limited its applicability to cases involving attorneys moving from one private sector job to another. Private sector attorneys moving into public service are seen as a new category for which the rules are not yet settled.

Cobra Solutions involved a construction company that hired an attorney to represent it in, among other things, a dispute with the San Francisco Department of Building Safety. The attorney was later elected to the post of San Francisco's city attorney. When the city attorney's office added Cobra Solutions to a complaint alleging corruption in the Department of Building Safety, the company successfully moved to disqualify the entire city attorney's office.

The city appealed. The Cobra Solutions majority analyzed the existing California precedent on the basis of whether the successive representation was by an attorney previously in the private sector or the public sector. The court, citing SpeeDee Oil and Cho, found an absolute rule of vicarious disqualification for the entire firm when a private sector attorney changes to another private sector position.48 If an attorney moves from the public sector to the private sector, or changes from one public sector position to another, the court found that it may be possible in those circumstances for an ethical screen to be erected with sufficient protections to avoid vicarious disqualification. The court cited Chambers, Higdon, and Chadwick for this proposition.49 Nevertheless, the movement of an attorney from the private sector to the public sector was seen as a matter of first impression. Also, while the majority did not resolve the issue of whether ethical screens might ever be effective and appropriate, it ruled that if the attorney becomes the head of the public law office, no ethical screen could be sufficient.

A Second District Court of Appeal case, City of Santa Barbara v. Superior Court, dealt with similar facts, except that the former private sector attorney was not the head of the public law office. The court did find that ethical screens could avoid a vicarious disqualification and in doing so reversed a decision of the lower court. The appellate court was persuaded that the same policy considerations animating the protection of former public sector attorneys (notably the lack of a profit motive) applied to new public sector attorneys.50

In an enigmatic footnote, the Cobra Solutions court criticized the distinction between the public and private sectors that it found in the prior case law. Seeing no reason for the distinction, the First District speculated that in the private sector, vicarious disqualification may be "an overbroad response...that needs to be reconsidered." The court proceeded to make an oblique criticism of Chambers, noting that "it is not readily apparent why...the reasons identified in Chambers are sufficient by themselves to support different rules."51 With one sentence, the First District suggested that ethical screens should be available in any type of case, and with the next sentence the court criticized Chambers in a way that implies that ethical screens are insufficient in any type of case.

In Justice Simmons's dissenting opinion in Cobra Solutions, he cited SpeeDee Oil, County of Los Angeles, and Adams for the "more flexible approach to disqualification"--that is, one that would always consider the possibility of ethical screens to avoid vicarious disqualification. "After SpeeDee Oil," he concluded, "we should reassess the rigid vicarious disqualification rule in successive representation cases and eliminate the conclusive presumption that the disqualified attorney will share confidences with the current members of his or her firm."52

The California Supreme Court has granted review to the Cobra Solutions case, so there will soon be further clarification of whether the "rigid" disqualification rule will be reassessed. Many policy considerations supporting the availability of ethical screens are not limited to public sector issues. Attorneys should have freedom of movement, and clients should have the freedom to choose their counsel in the private sector. If client confidences from a prior representation can be protected by screening the attorney who would, as an individual, have a conflict, vicarious disqualification of the private law firm should be avoided.

The division of opinion in Cobra Solutions illustrates that reasonable minds can differ regarding the state of the law in California governing the viability of ethical screens as a means of avoiding vicarious disqualification in cases involving successive representation. The better reasoned view from a policy perspective is to permit ethical screens in any case in which they would be effective in protecting the client's expectations with respect to client confidences. However, there is still plausible California authority for the proposition that, except for former public sector attorneys, vicarious disqualification of the disqualified attorney's entire firm is required, regardless of the presence of ethical screens.

Endnotes:

1 Chambers v. Superior Court, 121 Cal. App. 3d 892 (1981); Chadwick v. Superior Court, 106 Cal. App. 3d 108 (1980).
2 Klein v. Superior Court, 198 Cal. App. 3d 894 (1998).
3 In re County of L.A., 223 F. 3d 990 (9th Cir. 2000).
4 City & County of S.F. v. Cobra Solutions, Inc., 119 Cal. App. 4th 304 (2004), review granted, 18 Cal. Rptr. 2d 411 (Cal. Sup. Ct., Aug. 25, 2004).
5 Flatt v. Superior Court, 9 Cal. 4th 275, 283 (1994).
6 People ex rel. Dep't of Corps. v. SpeeDee Oil Change Sys., Inc., 20 Cal. 4th 1135 (1999).
7 INA Underwriters Ins. Co. v. Rubin, 635 F. Supp. 1 (E.D. Pa. 1983).
8 Hughes v. Paine, Webber, Jackson & Curtis Inc., 565 F. Supp. 663 (N.D. Ill. 1983).
9 SpeeDee Oil, 20 Cal. 4th at 1151-52 (emphasis added).
10 In re Charles L., 63 Cal. App. 3d 760 (1976).
11 Id. at 763.
12 Chadwick v. Superior Court, 106 Cal. App. 3d 108 (1980).
13 Id. at 116.
14 Chambers v. Superior Court, 121 Cal. App. 3d 892 (1981).
15 Id. at 894.
16 Id. at 899.
17 Id. at 903.
18 City & County of S.F. v. Cobra Solutions, 119 Cal. App. 4th 304, 314-15 (2004), review granted, 18 Cal. Rptr. 2d 411 (Cal. Sup. Ct., Aug. 25, 2004).
19 Flatt v. Superior Court, 9 Cal. 4th 275 (1994). Ironically, the case did not involve the issue of vicarious disqualification.
20 Id. at 283.
21 Henriksen v. Great Am. Sav. & Loan, 11 Cal. App. 4th 109 (1992).
22 Klein v. Superior Court, 198 Cal. App. 3d 894 (1988).
23 William H. Raley Co. v. Superior Court, 149 Cal. App. 3d 1042 (1983).
24 Id. at 1049.
25 Id. at 1049-50.
26 Dill v. Superior Court, 158 Cal. App. 3d 301 (1984).
27 Id. at 305-06.
28 Id. at 306.
29 Klein v. Superior Court, 198 Cal. App. 3d 894 (1988).
30 Id. at 906.
31 Vivitar Corp. v. Broidy, 143 Cal. App. 3d 878 (1983); Chronometrics, Inc. v. Sysgen, Inc., 110 Cal. App. 3d 878 (1980).
32 Klein, 198 Cal. App. 3d at 912-13.
33 Chambers v. Superior Court, 121 Cal. App. 3d 892, 902 (1981).
34 Higdon v. Superior Court, 227 Cal. App. 3d 1667 (1991).
35 Henriksen v. Great Am. Sav. & Loan, 11 Cal. App. 4th 109 (1992).
36 Id. at 117.
37 Flatt v. Superior Court, 9 Cal. 4th 275, 283 (1994) (endorsing Henriksen in dicta).
38 Cho v. Superior Court, 39 Cal. App. 4th 113 (1995).
39 Id. at 125.
40 People ex rel. Dep't of Corps. v. SpeeDee Oil Change Sys., Inc., 20 Cal. 4th 1135 (1999).
41 Id. at 1157 (Mosk, J., concurring).
42 In re County of L.A., 223 F. 3d 990 (2000).
43 Id. at 995.
44 Adams v. Aerojet-Gen. Corp., 86 Cal. App. 4th 1324 (2001).
45 Id. at 1336.
46 Id. at 1333.
47 City & County of S.F. v. Cobra Solutions, Inc., 119 Cal. App. 4th 304 (2004), review granted, 18 Cal. Rptr. 2d 411 (Cal. Sup. Court, Aug. 25, 2004).
48 Id. at 313.
49 Id. at 314-15.
50 City of Santa Barbara v. Superior Court, 122 Cal. App. 4th 17 (2004).
51 Cobra Solutions, 119 Cal. App. 4th at 314 n.7.
52 Id. at 324 (Simmons, J., dissenting).