Opinion
A164707 A165413
12-21-2023
HILARITA BELVEDERE, L.P., Plaintiff and Respondent, v. CAROL VAN ZANDT et al. Defendants and Appellants
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CIV2002404
Richman, J.
Here we address two consolidated appeals filed by three selfrepresented parties who were defendants below-Carol Van Zandt, Barbara E. Wilson, and Raymond Crouse (when referred to collectively, appellants). The first appeal is from a judgment that followed the striking of appellants' answers when, despite several court orders and other warnings, appellants refused to participate in any discovery. The second appeal is from an order denying appellants' belated motion to disqualify the law firm representing their adversary, a motion made after their default was entered. We order the appeals consolidated for all purposes, conclude that neither appeal has merit, and affirm the judgment and the order.
BACKGROUND
The General Setting
In March 2019 plaintiff/respondent Hilarita Belvedere, LP (Hilarita) bought the Hilarita, an income-restricted affordable housing facility in Tiburon (the property). The property consists of 102 units spread across 14 buildings, 100 units of which are restricted pursuant to a HUD use agreement to be occupied by very-low, low, and moderate-income households. The property was built in the early 1970s, has not undergone any significant renovations in the last 50 years, and currently requires approximately $25 million in renovations to increase accessibility, replace numerous parts of all 14 buildings, and address persistent plumbing issues.
The property was sold to Hilarita by the Hilarita-Tiburon Ecumenical Association (HTEA), a California nonprofit public benefit corporation. The transaction was reviewed and approved by HUD, and on March 25, 2019, the grant deed conveying the property from HTEA to Hilarita was recorded in the official records in Marin County.
Appellants each live in an income-restricted unit on the property. Shortly after Hilarita's acquisition of the property, appellants (along with others) objected to the sale, based on the claim that federal law gave them a right of first refusal and/or an option to purchase the property from HTEA. Then, on January 30, 2020, five people-the three appellants, Mansureh Farsi, and Ryan Kricensky-recorded a document entitled "Notice of NonAcceptance of Recorded Corporation Grant Deed" in the official records of Marin County (No. 2020-0003848) (notice), which notice was a cloud on title preventing Hilarita from securing financing for the required renovations.
The Proceedings Below
On September 18, 2020, Hilarita filed a verified compliant for quiet title and slander of title, naming five defendants: the three appellants, Farsi, and Kricensky. According to the register of actions, appellants filed separate answers representing themselves in propria persona.
After the complaint was filed, Farsi and Kricensky (1) filed with the court disclaimers of interest, disclaiming any and all right, title, or interest in the property other than their leases, and (2) executed and delivered notarized documents releasing and rescinding the notice and otherwise disclaiming any right, title, or interest in the property.
A case management conference was held on March 22, 2021 at which the case was set for court trial on September 7. At that conference counsel for Hilarita reported that "discovery requests have been sent to defendants, but no responses have been received." The court itself would later describe what occurred this way:
"In February of 2021, plaintiff served requests for production (set one), form interrogatories, and requests for admission (set one) on defendants Raymond Crouse, Ryan Kricensky and Barbara E. Wilson. Although due in early March, defendants served no responses. On March 22, 2021, the defendants (except Barbara E. Wilson) attended a case management conference with the court and asserted that only defendant Van Zandt had received the discovery requests. Plaintiff therefore re-served defendants with the identifical [sic] requests on March 25, 2021. Again defendants failed to respond. Plaintiff's counsel wrote to each of the defendants regarding their failure and demanded a response.
"On May 4, 2021, defendant Crouse responded by letter and asserted that '[T]he discoveries you request are privileged pursuant to California Government Code § 8547 et[] seq., and Federal False Claims Act Title 31 U.S.C. § 3729 et seq., Title 18 United States Code sections 3771 federal crime victim rights, all of which related to various Title 18 United States Code sections [sic] §1001, §1002, §1018 and §1031 felonies committed by personnel who have operated and continue to operate for your client Hilarita Belvedere L.P.' No further explanation was provided. Defendants Kricensky and Wilson did not respond to the correspondence.
"Plaintiff next moved to compel responses, deem the requests admitted, and impose sanctions. The motion was referred (along with a companion discovery motion against defendant Van Zandt) to the court's discovery facilitation program pursuant to Civil Local Rule 1.13. A facilitator was assigned who contacted plaintiff and defendants to set up a time to discuss the dispute. Defendants, however, did not respond to the court's facilitator."
As indicated, Hilarita filed motions on the discovery issues. Appellants filed no opposition. And on July 13, the court granted the motions against Van Zandt, and later an order granting "[t]he unopposed motions of plaintiff to compel discovery responses, establish admissions, and for sanctions against defendants Raymond Crouse, Ryan Kricensky and Barbara E. Wilson." That latter order also stated this: "Trial has been set for September 2021. The matter is currently before the court on a discovery dispute that arrives on the heels of the court's recent order compelling discovery and granting sanctions against defendant Carol Van Zandt. In its written ruling on that motion, the court placed the remaining defendants on notice that the misuse of the discovery process, including the refusal to respond to lawful discovery requests or participate in the court's discovery facilitator program, could result in the imposition of monetary sanctions. As was the case with defendant Van Zandt, the defendants at issue in these motions have chosen to ignore their discovery obligations and have refused to participate in the court's facilitation process."
We digress briefly from discussion of the discovery-related issues to note that while appellants refused to comply with their discovery obligations or otherwise comply with court orders, they filed a myriad of motions that were utterly without merit, some of which defy description. Two illustrations should suffice:
Appellants filed a "joint special appearance, joint notice of motion and motion directed to certain California cannons [sic] of judicial ethics that bind Honorable Judge Stephen P. Freccero to higher court decisions requiring him to sua sponte issue orders consistent with those higher court decisions." The motion was denied.
Appellants filed a joint motion "to vacate all orders and dismiss case forthwith." That motion was also denied, with this explanation: "Defendants now seek an order vacating the court's previous orders and dismissing the action. They provide no legal basis for the request and instead raise objections to perceived deficiencies in the court's register of actions. Defendants contend that '[T]he court must maintain official accurate records or its actions have no verity because what does not appear does not exist in law.' [Citation.]
"The register of actions is maintained by the clerk and its use by the superior court is optional. (Gov[.] Code, § 69845; see Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 543-544.) The court's case file maintains copies of properly filed documents. In the present case, the case file contains the filed-stamped copies of the discovery motions and the court's orders granting those motions. The orders compelling discovery were served on defendants along with notices of the entry of the orders. There is no legal basis to now vacate those orders.
"Defendants also cite to a recent decision by the California Supreme Court In re Humphrey as authority for the relief they seek. The citation in unexplained. The referenced decision arose from a criminal habeas corpus proceeding related to challenges to cash bail. The decision has no bearing on the present quiet title action.
'"Finally, defendants point to an entry in the register of action[s] and argue that this action has been unconstitutionally converted to a 'juvenile court proceeding.' The entry in the register is plainly a typographical error and has no effect on these proceedings."
On August 24, the trial court issued an order to show cause (OSC) why the court should not strike appellants' answers and enter a default judgment against them, scheduling a hearing on the OSC for November. As set forth in its later-filed order, the court described what followed:
"On August 24, 2021, this court issued an order to show cause ('OSC') to defendants Carol Van Zandt, Raymond Crouse, and Barbara E. Wilson . . . as to why the court should not strike their answers and enter defaults against them for their failure to comply with the court's orders. The court ordered the defendants to file written responses no later than October 29, 2021.
"On September 17, 2021, defendants Van Zandt and Crouse filed a response to the OSC indicating that 'the undersigned defendants will not further participate in these unconstitutional proceedings.' On October 29, 2021, plaintiff submitted a response to the OSC that included an evidentiary submission in support of the imposition of terminating sanctions. On November 2, 2021, defendants filed a response to plaintiff's submission.
"This hearing was scheduled far in advance in order to provide defendants an opportunity to comply with the court's discovery orders or show cause why terminating sanctions should not be imposed. All parties are ordered to appear at the hearing and defendants are specifically ordered to show cause as to why the court should not strike their answers and enter their defaults.
"The court finds the defendants Van Zandt, Crouse, and Wilson's continuing violations of this court's orders to be willful, deliberate, and borderline contemptuous.
"The court hereby imposes terminating sanctions against defendants, Van Zandt, Crouse, and Wilson-their answers are hereby ordered stricken, and defaults are entered."
The trial court also scheduled an evidentiary prove-up hearing for January 4, 2022.
Meanwhile, on December 21, 2021, appellants filed what they styled a "Motion to Disqualify Attorney Susan E. Block [sic] (SBN 178778) and the Entire Law Firm of Burke, Williams &Sorensen, LLP." While nearly unintelligible, the motion to disqualify appeared to argue that the Burke firm had a conflict of interest because Burke (1) previously represented HTEA in connection with HTEA's sale of the property to Hilarita; (2) the Hilarita Residents Association had the right to appoint one director to HTEA's Board of Directors; and (3) appellants are members of the Residents Association.
On December 29, appellants filed an objection to the trial court conducting the prove-up hearing before deciding the motion to disqualify.
On January 4, 2022, the trial court held the prove-up hearing. Turning first to a brief discussion of the motion to disqualify, the court observed that appellants had "not demonstrated a legal or factual basis to assert any legally cognizable conflict of interest," and that, even if they had, "their delay in asserting such a claim is so unreasonable . . . that the court finds they've impliedly waived whatever the hypothetical conflict was."
Turning to the prove-up, the trial court asked Hilarita's counsel for a proffer, and then questioned its witness regarding the bases of Hilarita's title. Following the hearing, the trial court entered (1) judgment in favor of Hilarita and against appellants on the first cause of action for quiet title, and (2) default judgment in favor of Hilarita and against appellants on the second cause of action for slander of title only.
On March 4, appellants filed notices of appeal from that judgment. This is appeal No. A164707.
Meanwhile, on February 2, Hilarita filed opposition to the motion to disqualify, supported in part by a declaration of attorney Susan Bloch, who among other things testified that "[a]t no time have I or my firm, [Burke], represented Carol Van Zandt, Raymond Crouse, Barbara E. Wilson, the [HTEA], the Hilarita Residents Association ('HRA'), any individual member of the HTEA Board of Directors, or any entity affiliated with HTEA."
On February 15, the trial court filed its order denying the motion to disqualify, on two independent bases: first, the motion was moot because judgment had already been entered; and second, the motion was without legal or factual basis because (a) appellants had "not established that there has ever been an attorney-client relationship between them and counsel for Hilarita"; and (b) even if appellants "had some colorable basis for the claim"- which the court specifically found they did not-appellants have "impliedly waived any such conflict by waiting more than one year to raise the issue."
On April 8 and 11, appellants filed notices of appeal of the order denying the motion to disqualify. This is appeal No. A165413. Appellants also filed a request that this appeal be consolidated with the earlier appeal for oral argument purposes. We now consolidate the appeals for all purposes.
DISCUSSION
Introduction, and Some Observations About Appellants' Briefs
In appeal No. A164707, appellants have filed three separate, but as best we can tell identical, opening briefs. And in appeal No. A165413, they have filed a joint opening brief. We begin our discussion by noting that those briefs violate many principles of appellate review, a criticism we make against the background that appellants have chosen to represent themselves on appeal, as is their right. Doing so, however, appellants are held to the same standard as an attorney. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Self-representation is not a ground for lenient treatment and, as is the case with attorneys, a person who represents himself "must follow correct rules of procedure." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) The briefs here fall far short.
The briefs in appeal No. A164707 have a one-page table of contents that among other things lists a claimed "summary of significant facts," but those facts are essentially appellants' version-a version, of course, rejected by the court below. This is inappropriate.
California Rules of Court rule 8.204(a)(2)(C) provides that an appellant's opening brief shall "[p]rovide a summary of the significant facts ...." And the leading California appellate practice guide instructs about this: "Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law. [Citation.] [¶] Misstatements, misrepresentations, and/or material omissions of the relevant facts or law can instantly 'undo' and otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2023) ¶ 9:27, italics omitted (Eisenberg).)
The briefs in appeal No. A164707 have no argument headings. This, too, violates the rules, as also pointed out by Eisenberg who, addressing the subject of argument in the "discussion" section of an appellant's opening brief, says this:
"[9:148] Discussion: The discussion portion of the brief sets forth the applicable law, applies the law to the facts of the case, and argues for the desired disposition. Your arguments should be thoughtfully developed with sound reasons for the holding you advocate. [¶] . . .[¶]
". . . [9:150] Use of headings: [California Rules of Court, rule] 8.204(a)(1)(B) requires each 'point' in a brief to appear 'under a separate heading or subheading summarizing the point ....' Thus, each issue should be addressed independently under a separate heading in the discussion section (¶ 9:91). Failure to do so may result in a waiver of the argument. [Citation.] (Provost v. Regents of Univ. of Calif. (2011) 201 Cal.App.4th 1289, 1294 ['we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument'; Roe v. McDonald's Corp. (2005) 129 Cal.App.4th 1107, 1114 ['there is no separate argument heading or analysis of the issues. That alone is grounds to deem the argument waived'].)" (Eisenberg, supra, Civil Appeals and Writs ¶¶ 9:148 to 9:150.)
Appellants' briefs also violate other principles of appellate advocacy and Rules of Court. For example, rule 8.204(a)(1)(C) requires any reference to a matter in the record, whether factual or procedural, be supported by a citation to the volume and page number of the record where the matter appears. (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970; Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745.) To the extent that any of appellants' briefs have record references, those references are to various papers filed by appellants below, which not only violates principles of appellate review, but also disregards the admonition from Division One of this court that appellants are not to merely reargue facts or "merely reassert their position at . . . trial." (Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664, 687.)
On top of all that, appellants' briefing violates the most fundamental rule of appellate review, that the rulings of the trial court are presumed correct and appellants must demonstrate the court committed reversible error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) This, appellants have not done.
Appeal No. A164707 Has No Merit
It is probably enough to note that nowhere in appellants' briefs do they attempt to demonstrate, let alone demonstrate, that what the trial court did was error, that it abused its discretion in making its ruling following appellants' refusal to provide the discovery ordered. (Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 51; Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.)
In any event, appellants' arguments have no merit.
As noted, appellants' briefs on this appeal have no argument headings per se. But sprinkled throughout the briefs are, as best we understand them, two arguments: (1) the trial court had no jurisdiction, apparently (though this is by no means clear) on the basis that there is a pending federal administrative proceeding, possibly before HUD, and the trial court lacked jurisdiction to hear this case until appellants exhaust their administrative remedies in that forum; and (2) Hilarita lacked standing to bring the action.
The Court Had Jurisdiction
California law requires that all quiet title actions be commenced in the superior court of the county where the subject real property is located. (Code Civ. Proc., §§ 392, 760.040, 760.050; Coley v. Hecker (1928) 206 Cal. 22, 26.) The commencement of a quiet title action vests the superior court with "complete jurisdiction" over the parties and the subject property for purposes of rendering an appropriate quiet title judgment. (Code Civ. Proc., § 760.040(b); see also Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 119.) The property, Hilarita, and appellants are all located in Marin County and the notice was recorded in the official records of Marin County. So, venue was proper there.
The exhaustion of administrative remedies doctrine provides that "where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the court will act." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292.) The doctrine generally applies when an administrative agency or body has jurisdiction under a statue to make a quasi-adjudicative decision in the first instance. (Hill RHF Housing Partners, L.P. v. City of Los Angeles (2021) 12 Cal.5th 458, 477.) That doctrine does not apply in this case, where appellants have not cited any statute or legal authority that provides Hilarita an administrative remedy for challenging the notice or appellants' adverse claims against its title. (Ramos v. County of Madera (1971) 4 Cal.3d 685, 691, limited on other grounds in Caldwell v. Montoya (1995) 10 Cal.4th 972, 987, fn. 8 [exhaustion of administrative remedies doctrine does not apply where there is no available administrative remedy]; Murietta Valley Unified School District v. County of Riverside (1991) 228 Cal.App.3d 1212, 1227 ["exhaustion of administrative remedy has never applied where there is no available administrative remedy"].)
While appellants claim there is a pending administrative proceeding before HUD, they have not provided any evidence of its existence-no case number, no initiating document, no docket, no register of actions. As Hilarita puts it "as far as [it] can tell, the HUD proceeding exists only in appellants' fantasies."
Hilarita Had Standing
Appellants apparently claim that Hilarita does not have standing because it is not a "real party in interest." Although this argument is particularly unclear, the argument appears to be based on confusion regarding a verification that Hilarita attached to its complaint, the declaration of Welton Jordan. Code of Civil Procedure section 761.020 requires a complaint for quiet title to be verified. To satisfy this requirement, Hilarita had Jordan, the Chief Real Estate Development Officer of EAH Inc., the sole member of the general partner of Hilarita, verify the complaint. Officers may verify pleadings on behalf of corporations. (Code Civ. Proc., § 446.) Nothing about that verification is evidence that Hilarita is not a real party in interest to bring this lawsuit. As it was.
" 'A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.'" (Redevelopment Agency of San Diego v. San Diego Gas &Elec. Co. (2003) 111 Cal.App.4th 912, 920-921.) And in quiet title and slander of title actions, a real party is any person or entity that claims to own an interest in the property in question. (See Code Civ. Proc., § 760.020, subd. (b); Sumner Hill Homeowners' Association, Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1029.) Hilarita owns, operates, maintains, and possesses the property and filed this lawsuit to quiet its title against appellants' adverse claims. It is indisputably a real party in interest with a stake in the outcome of this case.
Appeal No. A165413 Has No Merit
As noted, appeal No. A165413 is from the order denying their motion to disqualify the Burke Law Firm. We easily reject the appeal, for reasons both procedural and substantive.
As to the procedural, appellants filed the motion to disqualify after the trial court struck their answers and entered their default for their repeated failure to comply with court orders. It is well established that a "default cuts off the defendant's right to take further affirmative steps such as filing a pleading or motion." (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301; Rios v. Singh (2021) 65 Cal.App.5th 871, 887 (Rios), citing Title Ins. &Trust Co. v. King Land &Improvement Co. (1912) 162 Cal. 44, 46.) After a default, a defendant is "out of court" and cannot take any further steps affecting the plaintiffs right of action until the default is set aside. (Rios, supra, 65 Cal.App.5th at p. 887.) In short, after the court struck appellants' answers and entered the default judgment against them, appellants were barred from filing anything in the trial court until such time as their defaults were set aside. (6 Witkin, Cal. Proc. (6th ed. 2023) § 215.) Since appellants' defaults were never set aside, the disqualification motion was a nullity.
The motion to disqualify was also properly denied based on the substantive law of attorney disqualification, law we recently set forth in Victaulic Co. v. American Home Assurance Co. (2022) 80 Cal.App.5th 485 (Victaulic):
"In People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144-1146 (SpeeDee Oil), our Supreme Court set forth the 'disqualification principles': 'A motion to disqualify a party's counsel may implicate several important interests. Consequently, judges must examine these motions carefully to ensure that literalism does not deny the parties substantial justice. [Citation.] Depending on the circumstances, a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion. [Citations.] Nevertheless, determining whether a conflict of interest requires disqualification involves more than just the interests of the parties.
" 'A trial court's authority to disqualify an attorney derives from the power inherent in every court "[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto." [Citations.] Ultimately, disqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. [Citation.] The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one's choice must yield to ethical considerations that affect the fundamental principles of our judicial process. [Citations.]'" (Victaulic, supra, 80 Cal.5th at p. 504.)
Victaulic also noted that "SpeeDee Oil also set forth the standard of review: 'Generally, a trial court's decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial court's express or implied findings supported by substantial evidence. [Citations.]' (SpeeDee Oil, supra, 20 Cal.4th at p. 1143.)" (Victaulic, supra, 80 Cal.App.5th at p. 504.)
Finally, we note that in reviewing orders on disqualification motions, "the judgment of the lower court is presumed correct and all intendments and presumptions are indulged to support it on matters as to which the record is silent." (H.F. Ahmanson &Co. v. Salomon Bros., Inc. (1991) 229 Cal.App.3d 1445, 1451 (H.F. Ahmanson).) "Conflicts in the declarations are resolved in favor of the prevailing party and the trial court's resolution of factual issues arising from competing declarations is conclusive on the reviewing courts." (Ibid.)
Here, as noted, the trial court held the motion was "without legal or factual basis." Indeed.
As best we can tell, appellants' motion was fundamentally based on a claimed "dual representation conflict of interest." "Disqualification under this principle is governed by the 'substantial relationship' test, that is, an attorney will be disqualified only when there is 'a "substantial relationship" between the subjects of the prior and current representations.' [Citation.])" (Victaulic, at p. 506.) Where the former client seeks to disqualify counsel from representing a successive client in current litigation adverse to the former client's interest, the former client must demonstrate a "substantial relationship" between the subjects of the prior and current representations. (Beachcomber Management Crystal Cove, LLC v. Superior Court (2017) 13 Cal.App.5th 1105, 1116-1117.) And such substantial relationship exists where"' "the attorney had a direct professional relationship with the former client in which the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation." '" (Ibid.) Such relationship was not present here.
Though not cited by appellants, Rules of Professional Conduct, rule 1.9(a) provides: "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed written consent." (See generally O'Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1124 [prohibition of successive representation "grounded in both [Rules] and governing case law"].)
Appellants appear to argue that the Burke firm had a conflict of interest because (1) Burke previously represented HTEA in connection with HTEA's sale of the property to Hilarita; (2) the Hilarita Residents Association (Residents Association) could appoint one member to HTEA's board of directors; and (3) appellants are members of the Residents Association. But appellants have not established any "successive representation," let alone, a "substantial relationship," because Burke (1) never represented appellants or the Residents Association in any capacity; (2) never had a direct professional relationship with any of the appellants or the Residents Association; (3) never provided appellants or the Residents Association with any legal advice on any issue whatsoever; and (4) never had access to any of appellants' or the Residents Association's confidential information.
As testified to by Ms. Bloch, Burke represented HTEA in connection with its sale of the property to Hilarita. HTEA and the Residents Association (of which appellants are allegedly members) are separate legal entities, with the Residents Association previously having had the right to appoint a representative to HTEA's board of directors. Just as Burke did not represent any of the individuals on HTEA's board of directors by representing HTEA as an entity, Burke's representation of HTEA in connection with its sale of the property to Hilarita does not mean that Burke represented the Residents Association or any of its many members.
Moreover, even if Burke had a conflict of interest-and it did not-the trial court correctly held that appellants waived any such conflict through unreasonable delay. (Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 844.) That is, appellants did not object to representation of Hilarita until the eve of the January 4, 2022 prove-up hearing-and over 14 months after this lawsuit was filed. Indeed, as the trial court noted, appellants' belated attempt to disqualify Burke was nothing more than a collateral and untimely attack on the validity of the judgment. (See H.F. Ahmanson, supra, 229 Cal.App.3d at p. 1454 ["disqualification motions . . . are commonly used for purely strategic purposes to delay the litigation, harass the opposing party or pressure for a more favorable settlement"].)
As the trial court found, the prejudice to Hilarita of an order disqualifying Burke at this stage was extreme. Burke had represented Hilarita for nearly three years, during which time Burke developed a deep familiarity with the factual and legal issues in this case. Disqualifying Burke, particularly after Burke represented Hilarita at the January 4, 2022 prove-up hearing, would deprive it of the benefit of the substantial investment it made in Burke's representation over the years. (River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1313 [finding waiver of disqualification where prejudicial delay "allowed plaintiffs' counsel to engage in" substantial litigation effort at significant cost].)
Finally, appellants seem to argue that Burke engaged in "criminal conduct" by filing a certified copy of the grant deed that conveyed the property to Hilarita. As best we understand it, the argument emanates from the fact that in connection with the January 4, 2022 prove-up hearing, Hilarita filed a brief and three declarations, and attached a copy of the grant deed by which it acquired title to the property as Exhibit 7 to the declaration of Tessa Qunitanilla. Before the hearing, Hilarita realized that the exhibit inadvertently omitted the legal description of the property, and to ensure that the grant deed was complete, Hilarita obtained a certified copy of its grant deed from the County Recorder. Appellants' accusation of "criminal conduct" appears to be based on "discrepancies" between the date a certain signature was notarized, and the date of the grant deed itself, specifically, that the notary acknowledgment of Carolyn Grey's signature is dated March 11, 2019, but the grant deed itself is dated March 22, 2019. Citing these "discrepancies," appellants accuse Burke of falsifying the certified grant deed. The argument is fatuous.
DISPOSITION
The judgment and order are affirmed. Hilarita shall recover its costs on appeal.
We concur: Stewart, P.J. Markman, J. [*]
[*]Superior Court of Alameda County, Judge Michael Markman, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.