Opinion
D083076
05-06-2024
RAFAEL FIGUEROA, et al., Plaintiffs and Respondents, v. MORGAN TRUCK BODY, LLC, Defendant and Appellant.
CDF Labor Law, Dan M. Forman and Wanja S. Guy, for Defendant and Appellant. Bibiyan Law Group, David D. Bibiyan and Henry G. Glitz, for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Bernardino County, No. CIVDS1922014 Donald Alvarez, Judge.
CDF Labor Law, Dan M. Forman and Wanja S. Guy, for Defendant and Appellant.
Bibiyan Law Group, David D. Bibiyan and Henry G. Glitz, for Plaintiffs and Respondents.
IRION, J.
In this proposed class action lawsuit alleging that Morgan Truck Body, LLC (Morgan) committed violations of the wage and hour laws, Morgan appeals from the trial court's order denying Morgan's motion to disqualify a law firm representing one of the plaintiffs. The trial court denied the motion to disqualify after deciding, on its own motion, to reconsider its earlier ruling granting the motion to disqualify. Specifically, in reconsidering its earlier ruling, the trial court explained that (1) it was unaware at the time of its earlier ruling that a substitution of counsel form had been filed, and (2) the filing of that form caused the motion to disqualify to become moot.
Morgan contends that the trial court lacked jurisdiction to issue an order reconsidering its earlier ruling because the deadline to appeal the earlier ruling had already passed when the court reconsidered it. Morgan further contends that the trial court erred in determining that the motion to disqualify became moot due to the filing of the substitution of counsel form. We conclude that Morgan's arguments lack merit, and we accordingly affirm the trial court's order denying the motion to disqualify on the ground that it was moot.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2019, Rafael Figueroa filed this proposed class action lawsuit against Morgan in San Bernardino County Superior Court, alleging violation of wage and hour laws. Figueroa was represented by Aegis Law Firm, PC (Aegis Law). In September 2020, Felipe Trujillo filed a separate proposed class action lawsuit against Morgan in Riverside County Superior Court, which also alleged violation of wage and hour laws. Trujillo was represented by Bibiyan Law Group, P.C. (Bibiyan Law).
After Trujillo filed his first amended complaint in his Riverside County lawsuit, the parties agreed that Trujillo's allegations should be added to Figueroa's litigation in this action and that the Riverside County case should be dismissed without prejudice. Based on the parties' stipulation, the trial court in this action approved the filing of a second amended complaint on May 21, 2021, which added Trujillo as a plaintiff. The cover page of the second amended complaint identifies both Aegis Law and Bibiyan Law as the attorneys representing the plaintiffs.
In March 2022, counsel for Morgan discovered that attorney Jeffrey Bils, who was previously an associate at the law firm representing Morgan in this lawsuit, was now employed by Bibiyan Law. Bils had previously appeared in this litigation on behalf of Morgan. Based on the alleged conflict of interest posed by Bils's employment at Bibiyan after having represented Morgan in this action, on March 28, 2022, Morgan filed a motion seeking an order disqualifying both Aegis Law and Bibiyan Law from acting as counsel for plaintiffs in this litigation.
According to Bils, his employment at the law firm representing Morgan ended in March 2020. Bils began employment at Bibiyan Law in March 2022, and he was not assigned to work on this litigation. When the conflict involving Bils was brought to its attention, Bibiyan Law instituted screening procedures concerning Bils.
Bibiyan Law and Aegis Law filed separate memoranda in opposition to the motion to disqualify them. In its May 23, 2022 opposition memorandum, Bibiyan Law explained that on May 20, 2022, Trujillo had submitted to the court a substitution of counsel form, which substituted Aegis Law as his counsel, in place of Bibiyan Law. As Bibiyan Law argued, because it was no longer counsel of record in this lawsuit, the motion to disqualify it from serving as counsel should be denied as moot.
In reply to Bibiyan Law's mootness argument, Morgan's only response was that the court could still rule on the merits of disqualification motion as to Bibiyan Law because two exceptions applied that permitted such a ruling: (1) an issue of broad public interest was presented that was likely to recur, due to the importance of law firms performing pre-hiring conflict checks; and (2) there would be a recurrence of the controversy in the action, in that Bibiyan Law might seek attorney fees, and a ruling on disqualification would purportedly disqualify it from obtaining a fee award.
On August 4, 2022, the trial court ruled on the motion to disqualify. It denied the motion as to Aegis Law, explaining that Morgan had not met its burden as to that law firm. However, the trial court granted the motion to disqualify as to Bibiyan Law, despite the mootness argument, on that ground that "the substitution of counsel is not demonstrated to have been actually filed." The trial court served its ruling on the motion to disqualify by mail on August 8, 2022.
In making its ruling on the motion to disqualify, the trial court was apparently unaware that the clerk's office had, in fact, filed-stamped Trujillo's substitution of counsel form on May 23, 2022. Bibiyan Law filed a motion for reconsideration of the ruling granting Morgan's motion to disqualify it as counsel, pointing out to the trial court that the factual premise for its ruling was erroneous and arguing that the motion should have been denied as moot. In connection with the motion for reconsideration, counsel at Bibiyan Law submitted a declaration stating that upon receiving the ruling granting the motion to disqualify, his office called the trial court clerk's office, which stated that the court "had received the substitution of attorney form, but that for some reason, it was not reflected on the Court's docket and they were having trouble finding the document." Counsel therefore resubmitted the substitution of counsel form, but it was returned because it was a duplicate of the document that the court did, in fact, file on May 23, 2022. The filed substitution of counsel form was eventually located, and it was provided as an exhibit to the motion for reconsideration.
Morgan opposed the motion for reconsideration on the grounds, among others, that it was untimely. The parties agree that the deadline for filing the motion was August 23, 2022. (Code Civ. Proc., §§ 1008, subd. (a) [10-day deadline for filing motion for reconsideration]; 1013, subd. (a) [five-day extension for service of order by mail].) According to the trial court's register of actions, the trial court received the motion for reconsideration by fax filing on August 24, 2022, but it subsequently rejected the filing because counsel had not obtained a hearing date for the motion. Eventually, the motion for reconsideration was refiled with a hearing date of September 22, 2022.
Counsel's declaration explained that the motion was initially filed without a hearing date because his office had attempted on August 23, 2022, to reserve a hearing date but "was unable to get a hold of anyone of the clerk's office," and he believed that the clerk's office was accepting telephone calls only until noon. Despite repeated attempts, his office was not able to reach the court to obtain a hearing date until August 30, 2022. Counsel also explained, that upon receiving the new hearing date, he resubmitted the motion for reconsideration. However, two days later, he learned that the clerk's office could not find the resubmitted motion. He accordingly sent the motion for filing once again. At the conclusion of his declaration, counsel observed that the "filing irregularities" associated both with the substitution of counsel form and the subsequent attempt to file the motion for reconsideration, appeared to be "due to the backlog in the clerk's office, which Plaintiff does not fault as Plaintiff understands the court is overburdened as it is."
On October 31, 2022, the trial court denied the motion for reconsideration on the basis that it was filed one day late, on August 24, 2022. However, the trial court stated that it would, on its own motion, reconsider its prior ruling granting the motion to disqualify Bibiyan Law. The trial court explained, "As the basis for granting the disqualification motion was the failure to have filed the substitution of attorney[, which] is demonstrated to be false due to idiosyncrasies with the court's electronic document management system, the court will reconsider the ruling on the disqualification motion on its own motion, and deny the disqualification motion as [Bibiyan Law] as moot based on the filing of the substitution of attorney prior to the hearing on the disqualification motion."
The register of actions states that the initial attempted fax filing with the court was on August 24, 2022, which is the date the trial court used in making its ruling. That date is in conflict with a declaration from the attorney at Bibiyan Law handling the matter, which states that the motion was submitted for fax filing on August 23, 2023. We note that it is undisputed that the motion was served on opposing counsel on August 23, 2022.
II.
DISCUSSION
Morgan appeals from the trial court's ruling (after reconsideration), which denied as moot Morgan's motion to disqualify Bibiyan Law. "[O]rders granting or denying attorney disqualification motions are immediately appealable in California state courts." (URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 878 (URS Corp.).)
Morgan sets forth two arguments in support of its appeal. First, Morgan argues that the trial court had no jurisdiction to reconsider, on its own motion, its earlier ruling, and therefore, the original ruling granting the motion to disqualify should be reinstated. Second, Morgan argues that even if the trial court did have the authority to reconsider its earlier ruling, it erred in concluding that the motion to disqualify was moot. We consider each argument in turn.
The respondent's brief filed by Bibiyan Law argues that because the motion to disqualify was moot in the trial court, in that Bibiyan Law was already former counsel, this appeal seeking a reinstatement of the order disqualifying Bibiyan Law is also moot." 'An appeal [is] moot [if] the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.'" (Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1547 (Baykeeper).) Here, we would be able to grant effective relief if we were to conclude that the trial court improperly determined that the motion to disqualify was moot.
A. The Trial Court Had the Authority to Reconsider Its Prior Ruling on Its Own Motion
The first issue we consider is whether the trial court lacked jurisdiction to reconsider, on its own motion, its earlier ruling granting the motion to disqualify Bibiyan Law.
In its respondent's brief, Bibiyan Law does not address Morgan's argument that the trial court lacked jurisdiction to reconsider, on its own motion, its earlier ruling granting the motion to disqualify. In its reply brief, Morgan states that because the respondent's brief "fails to address" the issue, it "therefore concedes" that the trial court lacked jurisdiction to reconsider its ruling. Morgan is incorrect. "[A] respondent's failure to address an issue raised in the opening brief is not a concession." (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 557, fn. 48.)
As our Supreme Court explained in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 (Le Francois), there is no limitation on "the court's authority to reconsider its prior interim rulings on its own motion." Thus, although Code of Civil Procedure section 1008, imposes limitations on a party's ability to seek reconsideration (such as the 10-day deadline that was dispositive in this case), "[i]f a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief." (Le Francois, at p. 1108.) As relevant here, however, in Le Francois our Supreme Court included an important caveat: "What we say about the court's ability to reconsider interim orders does not necessarily apply to final orders, which present quite different concerns." (Id., at p. 1105, fn. 4.)
Morgan argues that the trial court's ruling granting the motion to disqualify Bibiyan Law was not an interim order, but instead was a final order subject to the caveat in Le Francois's footnote. Specifically, Morgan points out that an order granting a motion to disqualify is immediately appealable. (URS Corp., supra, 15 Cal.App.5th at p. 878.) According to Morgan, the disqualification order became final when the time to appeal expired on October 7, 2022, which was 60 days from the trial court's August 8, 2022 service of the order. (Cal. Rules of Court, rule 8.104(a),(e).)
The filing of a valid motion for reconsideration extends the time to appeal. (Cal. Rules of Court, rule 8.108(e).) However, as established by the trial court's ruling, the motion for reconsideration was not valid because it was untimely. (Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1047 [" 'the word "valid" means . . . that the motion or notice complies with all procedural requirements'" (italics omitted)].)
Morgan's argument depends on the premise that the term "final[ ] order" used in Le Francois's footnote (Le Francois, supra, 35 Cal.4th at p. 1105, fn. 4) refers to an order that is final in the sense that the time to appeal has expired. However, based on our Supreme Court's discussion in People v. DeLouize (2004) 32 Cal.4th 1223 (DeLouize), we reject the premise of Morgan's argument. As we will explain, the distinction between a final order and an interim order in the context of the trial court's authority to reconsider a previous ruling is more nuanced and requires looking to the policies behind the concept of finality as applied to the particular situation at issue.
We note that some courts have concluded that footnote 4 in Le Francois, supra, 35 Cal.4th at page 1105, should not be read as cautioning against a trial court's sua sponte reconsideration of orders which are appealable, but for which the time to appeal has not yet expired at the time the reconsideration order is issued. (In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1312-1313 & fn. 9 [holding that "a court may reconsider final as well as interim orders on its own motion," but not deciding "whether a trial court can reconsider an appealable order on its own motion after the time to appeal from that order has expired," which "may well have been the issue the Supreme Court had in mind" in the Le Francois footnote]; Coastline JX Holdings LLC v. Bennett (2022) 80 Cal.App.5th 985, 1003 [holding that the trial court had jurisdiction to proceed with its own reconsideration when it commenced that process and issued a tentative ruling prior to the expiration of the deadline to appeal, and thus not addressing "the extent to which a trial court has inherent authority to reconsider an order after the time to appeal that order has passed"]; In re Marriage of Spector (2018) 24 Cal.App.5th 201, 215 [following Barthold regarding the authority to reconsider an appealable order when the time to appeal has not yet expired].) Those authorities do not apply here, as the time to appeal had expired when the trial court issued its October 31, 2022 order reconsidering its prior ruling.
In DeLouize, our Supreme Court considered the trial court's authority to reconsider a ruling in the context of a criminal case. Specifically, the issue was whether the trial court could reconsider an order granting the defendant's motion for a new trial after the time for the prosecution to appeal the order had expired. (DeLouize, supra, 32 Cal.4th at pp. 1226-1227.) DeLouize first set forth the generally applicable rule governing whether a trial court had authority to reconsider a ruling, in any kind of proceeding: "Generally speaking, courts may correct judicial error in the making of interim orders or in limine rulings until pronouncement or entry of a judgment.... On the other hand, judicial error in the making of a final order or judgment 'may not be corrected except pursuant to statutory procedures' or on the limited grounds available for a collateral attack." (DeLouize, supra, 32 Cal.4th at p. 1231, citations omitted, italics added.) Our Supreme Court accordingly directed its analysis to resolving the following question: "Is an order granting a new trial an interim order or a final order for purposes of these rules?" (Ibid., italics added.)
In answering that question, DeLouize rejected the approach of defining a final order based simply on whether the order was immediately appealable. "Although courts have sometimes used appealability as a test for distinguishing final orders from interim orders . . . a better approach here, we think, is to analyze the issue in terms of the policies underlying the general concept of finality. Orders and judgments are deemed final in the superior court, and not subject to reconsideration by that court, to preserve confidence in the integrity of judicial procedures and to avoid the delays and inefficiencies associated with repeated examination and relitigation of the same facts and issues.... The concept of finality 'rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.' . . . This court has recognized that '[e]ndless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice ....'" (DeLouize, at p. 1232, citations omitted.)
Applying "the policies underlying the general concept of finality" (DeLouize, supra, 32 Cal.4th at p. 1232), our Supreme Court concluded that the order granting the defendant a new trial should not be treated as a final order, even though the order was immediately appealable and the prosecution's time to appeal had expired. DeLouize explained that allowing reconsideration in the unique situation presented would "promote[ ] confidence in the judicial system, conserve[ ] judicial resources, and spare[ ] the parties from the inconvenience and expense of a second trial." (Ibid.) Further, the prosecution's failure to appeal did not show "acquiescence in the ruling," since the reconsideration was based on a development in the case law that occurred after the time to appeal had lapsed. (Id. at pp. 1232-1233.)
Applying DeLouize's approach here, we conclude that "the policies underlying the general concept of finality" (DeLouize, supra, 32 Cal.4th at p. 1232) will not be harmed by treating the trial court's August 4, 2022 order granting the motion to disqualify Bibiyan Law as an interim order that the trial court had the authority to reconsider. Significantly, the record shows that the mix-up that led to the trial court's need to reconsider its earlier ruling was largely due to technical problems within its own clerk's office. As DeLouize observed, orders are usually deemed final and not subject to reconsideration "to preserve confidence in the integrity of judicial procedures." (Ibid.) Here, however, treating the order granting disqualification as final and not subject to reconsideration would have the opposite effect of compromising the public's confidence in the integrity of judicial procedures because it would prevent the trial court from correcting its own inadvertent errors. Further, although the trial court determined that the motion for reconsideration was technically invalid because, as reflected in the register of actions, it was received for fax filing one day late on August 24, 2022, the parties agree that the motion was served on opposing counsel on the prior day, August 23, 2022. Accordingly, we are not presented with a situation in which a party initially acquiesced in an appealable order and treated it as final, but then only later decided to challenge it. (Ibid. [noting the significance of the fact that the prosecution did not show "acquiescence in the ruling"].) Because the need for the reconsideration of the disqualification order arose from an inadvertent error by the trial court itself, and because Bibiyan Law sought to expeditiously correct the error, this is not a case where the policies behind the concept of finality are implicated.
We therefore conclude that the trial court properly treated the order granting the motion to disqualify Bibiyan Law as an interim order that it had the authority to reconsider on its own motion.
B. The Trial Court Properly Concluded That the Motion to Disqualify Was Moot
We next consider Morgan's contention that the trial court erred in concluding that the motion to disqualify Bibiyan Law was moot due to the filing of Trujillo's substitution of counsel form. "Issues of justiciability, such as mootness, are generally reviewed de novo." (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 319.)
"The pivotal question" in determining mootness is "whether the court can grant . . . any effectual relief." (Wilson &Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574.) Case law holds that a motion to disqualify counsel generally becomes moot when counsel no longer represents a party in the litigation because the court is no longer able to order counsel's disqualification. (La Jolla Cove Motel &Hotel Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773, 782.) However, Morgan argues, on multiple grounds, that Trujillo's substitution of counsel did not cause its motion to disqualify Bibiyan Law to become moot.
1. Morgan's Contention that Bibiyan Law Also Represented Figueroa
Morgan first argues that the filing of the substitution of counsel form did not serve to moot the disqualification motion because "Bibiyan Law did not substitute out of the case on behalf of . . . Figueroa," even though it did substitute out of the case on behalf of Trujillo. Pointing mainly to certain captions that appear on the first page of some of the plaintiffs' trial court filings, Morgan contends that Bibiyan Law acted as counsel for both Figueroa and Trujillo, so that Trujillo's substitution of counsel did not serve to withdraw Bibiyan Law from the litigation. The argument fails for several reasons.
First, Morgan did not raise the argument in the trial court, either in its initial motion to disqualify Bibiyan Law or in its opposition to Bibiyan Law's motion for reconsideration. Based on our review of the record, it is clear that throughout the entirety of the trial court proceedings, the parties and the trial court operated on the assumption that Bibiyan Law represented only Trujillo, and Aegis Law represented only Figueroa, so that the filing of the substitution of counsel form would serve to withdraw Bibiyan Law as counsel in the litigation." 'As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal.'" (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1344.) "Such new arguments may be deemed waived, based on common notions of fairness. 'Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider.... Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier.'" (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1519.) Here, because Morgan did not argue in the trial court that Bibiyan Law should be disqualified because it continued to participate in the litigation through its purported representation of Figueroa, we deem the argument to be waived.
Moreover, even were we to consider Morgan's argument on the merits, apart from some inartfully drafted captions on certain trial court filings, we see no substantive support in the record for Morgan's contention that Bibiyan Law ever appeared in the litigation as counsel for Figueroa. The history of the litigation, which we have outlined above, makes clear that this lawsuit was originally filed by Figueroa, with Aegis Law appearing as his counsel. Bibiyan Law was counsel for Trujillo in a separate lawsuit in Riverside County Superior Court. The most reasonable conclusion is that Bibiyan Law continued in the capacity as counsel for Trujillo when the parties stipulated to consolidate the two lawsuits by having Trujillo added as a plaintiff in this action.
We note that although this litigation was filed as a proposed class action, there is no indication in the record that, at the time of the disqualification motion, a class had been certified or class counsel had been appointed.
To support its contention that Bibiyan Law represents Figueroa, Morgan also attempts to rely on a July 24, 2023 motion filed by Bibiyan Law in the trial court. Morgan has requested that we augment the record on appeal to include that motion. In an August 23, 2023 order, we stated that we would treat Morgan's request to augment as a request for judicial notice, and we would decide it together with this appeal.
Turning to the request for judicial notice, we note that absent exceptional circumstances, "[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Here, the July 24, 2023 motion was filed long after the trial court's October 21, 2022 ruling that is the subject of this appeal. However, correspondence submitted by Morgan in support of the request for judicial notice indicates that Bibiyan Law has stipulated to have the July 24, 2023 motion added to the appellate record. We will therefore take judicial notice of the July 24, 2023 motion for the purpose of describing it and explaining why Morgan's reliance on it is misplaced.
When Morgan originally filed its opening brief in this appeal on June 5, 2023, it presented, for the first time, the argument we have described above focusing on Bibiyan Law's purported representation of Figueroa. Specifically, Morgan argued that because Bibiyan Law represented Figueroa as well as Trujillo the trial court erred in concluding that the motion to disqualify was moot. In response, on July 24, 2023, Bibiyan Law filed a motion in the trial court to be relieved as counsel for Figueroa. Morgan then sought leave to file an amended opening brief in which it proposed to address the fact that Bibiyan Law had filed that motion. We granted Morgan's request to file an amended opening brief, and the prior opening brief was stricken.
In its amended opening brief, Morgan argues that Bibiyan Law's July 24, 2023 motion serves as a judicial admission that up until that date, Bibiyan Law was, in fact, participating in this litigation as counsel for Figueroa. According to Morgan, the trial court therefore erred in concluding that the motion to disqualify was moot. Based on the content of the July 24, 2023 motion, we reject the argument.
Counsel's declaration in support of the July 24, 2023 motion provided the following explanation of why Bibiyan Law was filing a motion to be relieved as counsel for Figueroa: "In its Opening Brief, [Morgan] argued that this Court's October 31, [2022] Order was error and should be reversed because [Bibiyan Law] purportedly did not withdraw from representation of Mr. Figueroa in this action. During the course of this action, [Bibiyan Law] has never proceeded on the understanding that it represented Mr. Figueroa as counsel, nor has [Bibiyan Law] at any time actively participated in the prosecution of Mr. Figueroa's claims herein. However, in an abundance of caution and to address the issue as raised by [Morgan] in its currently pending appeal, [Bibiyan Law] now files the instant Motion to clarify that it seeks to withdraw from any attorney-client relationship that it may have established with Mr. Figueroa."
It is unreasonable to describe anything in the July 24, 2023 motion as an admission by Bibiyan Law that it represented Figueroa. Bibiyan Law made clear that it was filing the motion only in an abundance of caution as a result of Morgan's appellate argument. Accordingly, we reject Morgan's argument that July 24, 2023 motion establishes the trial court erred in concluding that the motion to disqualify was moot after the filing of Trujillo's substitution of counsel form.
2. Morgan's Contention That a Ruling on the Disqualification Motion Will Resolve a Future Dispute Over Attorney Fees
Morgan next argues that the trial court erred in concluding that the motion to disqualify was moot because "[a]bsent disqualification Bibiyan Law may be entitled to recover attorneys' fees incurred in settlement or judgment should Plaintiffs prevail in this class action." We understand Morgan to be invoking the exception allowing a court to decide a moot issue" 'when there may be a recurrence of the controversy between the parties.'" (Baykeeper, supra, 193 Cal.App.4th at p. 1548.)
The argument fails because the issue of whether Bibiyan Law's hiring of Bils in March 2022 required its disqualification as counsel after that date is not dispositive of whether Bibiyan Law would be entitled to an award of attorney fees for its participation as counsel in this litigation. "California law does not establish a bright-line rule barring all compensation for services performed subject to an improperly waived conflict of interest, no matter the circumstances surrounding the violation." (Sheppard, Mullin, Richter &Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 89.) "[T]he issue is generally one for the discretion of the trial court, to be exercised in light of all the circumstances that gave rise to the conflict.... 'Considerations relevant to the question of forfeiture include the gravity and timing of the violation, its willfulness, its effect on the value of the lawyer's work for the client, any other threatened or actual harm to the client, and the adequacy of other remedies.'" (Id. at p. 94.)
Based on the foregoing, a ruling on the motion to disqualify would not resolve the question of whether Bibiyan Law would be able to recover attorney fees in this litigation. If the issue of Bibiyan Law's ability to obtain a fee award eventually arises in this litigation, the issue will have to be decided by the trial court, exercising its discretion at that time, based on the particular circumstances presented.
DISPOSITION
The order denying the motion to disqualify Bibiyan Law is affirmed.
WE CONCUR: O'ROURKE, Acting P. J., KELETY, J.