Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Corey S. Cramin, Judge, Super. Ct. No. 06CC09361.
Hollins Schechter, Rudy Gaba, Jr., and Kathleen Mary Kushi Carter for Plaintiff and Appellant.
Day Law Group, Brian L. Day for Defendants and Respondents.
OPINION
IKOLA, J.
The issue in this appeal is whether the trial court erred in denying Hollins Schechter’s (Hollins) motion to disqualify the law office of Day Eisenberg from representing two of Hollins’s former clients. We find no error and affirm.
FACTS
Mark Eisenberg was a partner at Hollins from January 2001 to June 2005. In August 2005, Eisenberg formed the Day Eisenberg firm with attorney Brian Day. Eisenberg and Day did not share clients or legal work.
Day and Eisenberg dissolved their partnership “effective August 1, 2007” and Day formed the Day Law Group. For ease of reference, we refer to the firm as Day Eisenberg.
Hollins represented Jonathan Nissanoff, M.D., and San Diego Advanced Orthopedic Center (collectively Nissanoff) “in the case [entitled] Nissanoff v. Arruda, et al.; Arruda v. Nissanoff, et al” (the Arruda matter) from “approximately 2004 to 2006.” All we know about the Arruda matter is that “a complaint was filed on Nissanoff’s behalf on or about February 1, 2005.” Nissanoff apparently failed to pay Hollins for its services and, in August 2006, Hollins filed a complaint against Nissanoff to recover unpaid legal fees.
Nissanoff hired Day Eisenberg to defend it and Day demurred to the complaint on Nissanoff’s behalf. Shortly thereafter, Hollins moved to disqualify Day Eisenberg, alleging Eisenberg obtained confidential information relating to Hollins’s lawsuit against Nissanoff when he worked at Hollins. Hollins offered only one declaration to support its motion. In that declaration, Hollins’s managing partner, Kathleen Carter, averred Eisenberg: (1) attended meetings where attorneys discussed how to recover fees from Nissanoff; (2) had general knowledge of Hollins’s billing practices and access to unspecified “privileged and confidential work-product and business information”; and (3) was “present . . . at a meeting to discuss the confidential facts and legal issues in [the Arruda matter].”
Day Eisenberg contended disqualification was unnecessary because Eisenberg did not act as counsel for Nissanoff while he worked at Hollins and because there was no similarity between the Arruda matter and Hollins’s attempt to recover legal fees from Nissanoff. In a declaration submitted in opposition to the motion to disqualify, Eisenberg stated he: (1) did not perform any work on the Arruda matter; (2) never saw any part of the files or billing records for that case; (3) never spoke to anyone at Hollins about the Arruda matter; and (4) never heard of the Arruda matter until Day told him that Hollins had filed a motion to disqualify. Eisenberg’s declaration was in direct conflict with Carter’s.
In reply, 10 partners from Hollins submitted declarations averring all partners at Hollins have access to copies of case files, know about the firm’s billing practices, and attend monthly meetings where partners discuss outstanding accounts receivable. Each declaration carefully avoided stating Eisenberg worked on the Arruda matter. Day Eisenberg responded to Hollins’s reply. Eisenberg submitted a supplemental declaration wherein he averred he had “no idea . . . whether Dr. Nissanoff owes fees to Hollins”; or what strategies Hollins “claims to have employed to collect the fees they claim to be due and owing.”
Hollins also submitted the declaration of a woman who stated she and Eisenberg had dinner with Nissanoff in 2004 where it was her “recollection that legal issues involving Nissanoff were discussed . . . which I am informed and believe included the [Arruda] matter.”
The court denied the motion to disqualify. Relying on Adams v. Arrowjet-General Corp. (2001) 86 Cal.App.4th 1324, 1340 (Adams), the court ruled Hollins “failed to establish . . . disqualification [is] required under the substantial relationship standard . . . .” The court made the following findings: “The parties present conflicting evidence regarding the knowledge and information that [ ] Eisenberg possesses and was exposed to during his employment with [Hollins]. The court resolves these conflicts in favor of [counsel for] defendant.” The court further found “the timing of [ ] Eisenberg’s departure from [Hollins] supports the conclusion that he was not exposed to information warranting disqualification” and that the evidence Hollins presented “[was] too general” and failed to establish a “direct connection” between the two representations.
DISCUSSION
The Appeal is Not Moot
As noted above, the Day Eisenberg firm dissolved in August 2007. Day Eisenberg has moved to dismiss the appeal as moot, asserting “the law firm and attorney which were the subject of the motion to disqualify are no longer associated with the case.” Day Eisenberg cites no authority to support this argument.
“An appeal will be dismissed if, by reason of events, it has become moot and impossible for the court to render effective judgment for a party.” (La Jolla Cove Motel & Hotel Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773, 781-782.) Hollins moved to disqualify the entire Day Eisenberg firm, not just Eisenberg. Because Day has not withdrawn from representing Nissanoff, the appeal is not moot and the motion to dismiss is denied.
The Court’s Denial of the Motion to Disqualify Was Not an Abuse of Discretion
We review the trial court’s denial of the motion to disqualify for abuse of discretion. (Ochoa v. Fordel, Inc. (2007) 146 Cal.App.4th 898, 906 (Ochoa).) “‘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.” (Id. at p. 906.) Put another way, “‘[t]he resolution of factual issues arising from competing declarations is conclusive on the reviewing court, and conflicts in the declarations are resolved in favor of the prevailing party.” (Ibid; see also Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.)
Conflicts of interest between attorneys and clients fall, generally, into two categories: “concurrent” conflicts and “successive” conflicts. (See Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2007) ¶¶ 4:27 to 4:50, 4:160; Oaks Management Corporation v. Superior Court (2006) 145 Cal.App.4th 453, 463 [describing concurrent and successive conflicts of interest].) A concurrent conflict may arise when an attorney simultaneously represents two clients with adverse interests. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1147; Flatt v. Superior Court (1994) 9 Cal.4th 275, 282-284.) A successive conflict typically arises when an attorney has conflicting duties to present and former clients. (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846.)
This case does not fall within either category of conflicts. It is “a square peg which does not fit into the round holes of the rules most commonly applied in attorney disqualification cases.” (William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 1042, 1049-1050, fn. 3.) There does not appear to be a concurrent conflict because Day Eisenberg does not simultaneously represent two clients with adverse interests. Nor is there any indication that a successive conflict exists, because the record does not suggest that Day Eisenberg’s representation of Nissanoff conflicts with a duty Day Eisenberg owes to a former client. Here, the apparent conflict is between Eisenberg and his former law firm, not between Day Eisenberg and its client or clients.
Believing the situation presented a potential successive conflict of interest, the court applied the substantial relationship standard outlined in Adams, supra, 86 Cal.App.4th at page 1340. As discussed in Adams, courts consider three factors in applying the substantial relationship test: “(1) factual similarities between the two representations, (2) similarities in legal issues, and (3) the nature and extent of the attorney’s involvement with the case and whether he was in a position to learn of the client’s policy or strategy.” (Id. at p. 1332.)
The court concluded Hollins failed to establish a “direct connection” between the Arruda matter and the action to recover legal fees from Nissanoff. The lack of evidence on appeal regarding the nature of the two cases supports the court’s conclusion that there is no substantial relationship. For example, Hollins did not include a copy of the Arruda complaint in the record, and it failed to provide this court with any information about the nature of that dispute, such as the causes of action that were alleged and how the dispute was resolved. There is also virtually no information in the record about Hollins’s lawsuit against Nissanoff. Accordingly, we must conclude, as the court below did, that Hollins failed to demonstrate any factual or legal similarities between the two cases. (Adams, supra, 86 Cal.App.4th at p. 1332.)
Applying the third factor of the substantial relationship test — “the nature and extent of the attorney’s involvement with the case and whether he was in a position to learn of the client’s policy or strategy” — the court concluded Eisenberg was not in a position to obtain information relating to Hollins’s lawsuit against Nissanoff. (Adams, supra, 86 Cal.App.4th at p. 1332.) In doing so, the court resolved the factual disputes presented in the competing declarations (of Eisenberg and the Hollins partners) in favor of Day Eisenberg. In his declaration, Eisenberg averred he did not act as Nissanoff’s counsel on the Arruda matter; he had no information relating to Nissanoff’s failure to pay fees to Hollins; and he was “wholly unfamiliar with the issues in this case and [in] the underlying case [the Arruda matter].” The generalized statements in Hollins’s declarations do not demonstrate otherwise. Moreover, Eisenberg left Hollins over one year before it filed a complaint against Nissanoff. Accordingly, the court’s conclusion that Hollins failed to demonstrate Eisenberg was exposed to confidential information about the fee dispute while he worked at Hollins was supported by substantial evidence, and we will not disturb this finding on appeal. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 300-301 [general statements in moving party’s declarations provided “no evidence these attorneys had, through their former employment, acquired confidential or privileged information material to the present litigation”].)
During oral argument, Hollins suggested the court should have applied a modified version of the substantial relationship test, where imputation of confidential information is presumed. (See, e.g., Faughn v. Perez (2006) 145 Cal.App.4th 592, 603 (Faughn).) Under the modified substantial relationship test, the issue is whether confidential information was “reasonably likely” to have been imparted to the attorney while the attorney was at the former firm. (See Vapnek et al., Cal. Practice Guide: Professional Responsibility, supra, at ¶ 4:207.7; Faughn, supra, 145 Cal.App.4th at pp. 603-604.) That the attorney had access to confidential information at the former firm is, without more, not “a sufficient basis for finding or conclusively presuming that ‘confidential information material to the current representation would normally have been imparted to the attorney . . . .’” (Ochoa, supra, 146 Cal.App.4th at pp. 911-912; see also Vapnek et al., Cal. Practice Guide: Professional Responsibility, supra, at ¶ 4:207.9a.) Hollins fares no better under the modified substantial relationship test. Eisenberg demonstrated, and the trial court found, he was not exposed to confidential information when he worked at Hollins. Accordingly, the denial of Hollins’s motion to disqualify would have been proper under the modified substantial relationship test. (Ochoa, supra, 146 Cal.App.4th at pp. 908-909applying the modified substantial relationship test and affirming the trial court’s factual determination that the attorney had met his burden of proving that he was not exposed to confidential information relevant to the current action while he was a member of his former firm].)
DISPOSITION
The motion to dismiss the appeal as moot is denied. The order denying the motion to disqualify is affirmed. Day Eisenberg shall recover its costs on appeal.
WE CONCUR: ARONSON, ACTING P. J., FYBEL, J.