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Leon Schimmel v. Harris Levin et al

May 5, 2011


APPEAL from a judgment of the Superior Court of Yolo County, Samuel T. McAdam, Judge. (Super. Ct. No. CVCV090000617)

The opinion of the court was delivered by: Raye , P. J.



After the trial court found attorney Kelli M. Kennaday possessed plaintiff Leon Schimmel's confidential material information in a prior action, the court disqualified Kennaday and her firm, Wilke, Fleury, Hoffelt, Gould & Birney (Wilke Fleury), from its representation of Harris Levin, Community Health Associates Multispecialty Medical Group, Inc., and various other defendants (collectively, Community Health). The court struck Community Health's petition to compel arbitration, filed by Kennaday, and granted it 60 days to refile the petition. Community Health appeals, arguing the trial court erred in disqualifying Wilke Fleury, and rather than striking the petition, the trial court should have ruled on the petition prior to the later-filed disqualification motion. We shall affirm the judgment.


Community Health is a professional corporation of medical doctors who provide medical services to patients of Sutter Health, Inc. Schimmel, a physician, began working for Community Health in 1993. Schimmel was responsible for providing medical services in the obstetrics and gynecology department. Levin was the president and chairman of the board of Community Health; the other individually named defendants were members of the board of directors.

In 1995 Schimmel was elected to the position of medical director. For the next 11 years, Schimmel managed the healthcare services provided by physicians in his medical group. Part of his responsibilities included administering internal investigations regarding possible misconduct and other potential legal actions.

Prior Litigation and Prior Representation

In October 2002 Dr. Diane Cabana filed a civil suit naming Community Health, Levin, and Schimmel as defendants. Cabana alleged nine causes of action arising from her past employment with Community Health, including sex discrimination, harassment, retaliation, wrongful termination, breach of contract, and defamation.

According to Cabana's complaint, Schimmel lied about her professional competency. Cabana claimed Levin was notified of Schimmel's inappropriate employee management but retaliated against her and defamed her.

Kennaday and Wilke Fleury were appointed by SCIPIE Indemnity Company to represent Schimmel's interest in the litigation. Community Health and Levin were represented by other counsel. Over time, Schimmel had numerous conversations with Kennaday regarding arbitration, possible defenses, litigation strategies, concerns about his reputation, financial information, job performance, litigation risk, settlement, and criticism of management, among other issues. In her defense of Schimmel, Kennaday argued he properly managed Cabana's performance.

The parties went to mediation. During mediation, Schimmel and Kennaday discussed settlement negotiation strategies, litigation strategies, and other areas of concern. Mediation proved unsuccessful and the matter continued in litigation.

Schimmel attended Levin's deposition, taken by Cabana's counsel. Kennaday represented Schimmel at the deposition. Schimmel made comments to Kennaday regarding Levin's attributes as a witness, including his credibility and his management of the medical group.

Kennaday contacted Schimmel in January 2004, informing him that she would seek to compel arbitration of the litigation. Schimmel and Kennaday discussed various aspects of arbitration, including how the arbitration agreement was developed, the pros and cons of enforcing arbitration agreements, and Schimmel's personal views on arbitration.

Schimmel conferred with Kennaday about the factual and legal issues of the litigation, the possibility of settlement, and other litigation issues. The case subsequently settled in April 2004.

After the Cabana case settled, Schimmel learned Levin retained Kennaday in place of Levin's former counsel. Kennaday was hired to provide counsel on revising Community Health's arbitration and employment agreements.

The Current Litigation and Representation

In February 2006 Levin raised questions regarding Schimmel's job performance. A month or so later, Schimmel was contacted by Community Health regarding communication issues brought to the attention of the board by other physicians. In March and November 2007 Schimmel was criticized and disciplined. More complaints regarding Schimmel's job performance followed, and in January 2008 Schimmel was summoned to appear before the board of directors.

Subsequently, Schimmel was placed on administrative leave pending an informal hearing. At the March 2008 hearing, Schimmel claimed the personnel action was retaliation for ...

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