Noris-Barrera v. Costco Wholesale Corporation

Background

Manuel Noris-Barrera sued Costco Wholesale Corporation and “Adrian Doe” in San Francisco County Superior Court. The complaint alleged negligence and premises liability based on an incident while Noris-Barrera was shopping at a Costco store in San Francisco. It sought damages including lost wages, hospital and medical expenses, general damages, and lost earning capacity. Noris-Barrera served Costco with a statement saying he sought more than $1 million.

Costco removed the case to federal court based on diversity jurisdiction, which generally allows a federal court to hear a qualifying dispute between citizens of different states when more than $75,000 is at stake. Costco identified itself as a Washington corporation and Noris-Barrera as a California resident. Costco argued that “Adrian Doe” had been fraudulently joined because no person with that name worked at the store on the date of the incident. Costco submitted declarations stating that its payroll records did not show a supervisor or manager with the first name “Adrian” working at that location on that date.

Motion to Remand

Noris-Barrera moved to remand, meaning to return the case to state court. He argued that “Adrian Doe” was a properly named defendant believed to be a California resident and that the allegations were based on his recollection of the person who interacted with him after he fell.

The court explained that the citizenship of a fictitious defendant is generally disregarded when deciding whether removal to federal court is proper. Here, the complaint gave only conclusory information about “Adrian Doe,” describing the person as a store manager or supervisor and alleging San Francisco residence on information and belief. It did not describe Noris-Barrera’s interaction with Doe or provide facts giving a reasonable indication of Doe’s identity. Costco’s payroll evidence also did not show anyone named Adrian working at the store on the incident date.

The court concluded that it could not consider “Adrian Doe’s” alleged citizenship unless and until Noris-Barrera sought permission to replace Doe with a named defendant. It therefore held that removal was proper and denied plaintiff’s motion to remand.

Motion to Disqualify Counsel

Costco moved to disqualify Downtown L.A. Law Group from representing Noris-Barrera. Costco argued that Anthony Werbin, an attorney at the firm, possessed confidential attorney-client information from his earlier work representing Costco. From 2017 through 2020, Werbin had represented Costco in 21 slip-and-fall cases, including a case that went to trial. He also attended a Costco conference at which California litigation and defense strategies were discussed. After joining Downtown L.A. Law Group, Werbin represented a plaintiff against Costco.

The law firm argued that Werbin had not received confidential or proprietary information from Costco and that any relevant knowledge came from his general experience. The firm also stated that Werbin had not discussed this case, that he did not work on Costco cases, and that the firm had created an ethical screen—a system intended to prevent an attorney from accessing or sharing confidential information.

Applying California law, the court explained that a former client seeking disqualification need not prove that the attorney actually used confidential information. Showing a substantial relationship between the former and current representations can create a conclusive presumption that the attorney possesses relevant confidential information. The court found that Werbin had directly represented Costco in similar slip-and-fall cases and that those matters were closely related to Noris-Barrera’s case.

The court also found that the firm’s ethical screen was insufficient. Werbin had handled a case against Costco shortly after joining the firm, which contradicted the firm’s description of its screening procedures. The court further noted that the firm’s software did not prevent Werbin from viewing Costco case files until December 2021. On this record, the court concluded that Downtown L.A. Law Group should be disqualified and granted defendant’s motion to disqualify plaintiff’s counsel.

Other Orders and Disposition

The court stayed the action until February 2, 2024 so Noris-Barrera could find new counsel. By that date, he was required to tell the court whether he had retained new counsel or would represent himself. The court also continued the initial case-management conference to February 16, 2024, at 2:30 p.m. The opinion does not decide the underlying negligence or premises-liability claims.