In Don daRoza, Inc. v. Northern Cal.etc. Hod Carriers Union, supra, 233 Cal.App.2d 96, and LeonHandbag Co. v. Local 213, supra, 276 Cal.App.2d 240, lower courts have continued to dismiss actions or grant summary judgment where (1) all issues raised are arbitrable, (2) the plaintiff has not pursued the arbitration remedy, and (3) neither party has asked for a stay in the proceedings. Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d 500 [ 42 Cal.Rptr. 908], represents the second line of authority. In Zak, a tort case involving, inter alia, the applicability of an insurance contract, not all issues raised were arbitrable.

" ( UnitedPacific Ins. Co. v. Hanover Ins. Co. (1990) 217 Cal.App.3d 925, 933, fn. 9 [ 266 Cal.Rptr. 231], italics in original. See also, Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d 500, 506 [ 42 Cal.Rptr. 908]; Kyne v. Kyne (1943) 60 Cal.App.2d 326, 332 [ 140 P.2d 886]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 262, p. 269.)

(See Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329 [48 P. 117]; 6 Witkin, Cal. Procedure (2d ed. 1971) pp. 4215-4216 and cases there cited.) Although an appellate court will not resolve evidentiary conflicts left unsettled by the trial court ( Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d 500, 506 [ 42 Cal.Rptr. 908]; Kyne v. Kyne (1943) 60 Cal.App.2d 326, 334 [ 140 P.2d 886, 141 P.2d 221]), in the case at bar all evidence material to the issue of ostensible authority is uncontroverted, and the only dispute concerns the inferences to be drawn from the undisputed record. Civil Code section 2317 defines: "Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess."

(See fn. 1, supra.) As stated in Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d 500, 506 [ 42 Cal.Rptr. 908]: "Where the record reflects that the trier of fact has not considered a theory under which the evidence is conflicting, the reviewing court cannot rely on that theory to sustain the action of the lower court." 2. Artur's demurrer

These extensive findings do not permit disqualification of a single attorney or law firm representing siblings in a dependency case — they only permit disqualification in a successive representation scenario. Given that the juvenile court never exercised its discretion on the ground an actual conflict of interest existed, I do not believe we can uphold any part of its ruling on a ground never utilized by it. ( Olvera v. Olvera (1991) 232 Cal.App.3d 32, 39 [ 283 Cal.Rptr. 271]; Cramer v. Morrison (1979) 88 Cal.App.3d 873, 887 [ 153 Cal.Rptr. 865]; Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d 500, 506 [ 42 Cal.Rptr. 908]; see Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 621 [ 236 Cal.Rptr. 605].) Regardless of the evidence concerning noncompliance with the ethical walls mandated by Castro v. Los Angeles County Bd. of Supervisors, supra, 232 Cal.App.3d at pages 1435-1445, no improper concurrent representation issue was present when the disqualification orders were entered.

Further, the juvenile court never found there was an actual conflict of interest nor ruled on that basis in issuing the disqualification orders. Given that the juvenile court never exercised its discretion on the ground an actual conflict of interest existed, I do not believe we can uphold any part of its ruling on a ground never utilized by it. (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 39 [283 Cal.Rptr. 271]; Cramer v. Morrison (1979) 88 Cal.App.3d 873, 887 [153 Cal.Rptr. 865]; Zak v. State Farm Mut. Liab. Ins. Co. (1965) 232 Cal.App.2d 500, 506 [42 Cal.Rptr. 908]; see Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 621 [236 Cal.Rptr. 605].) Regardless of the evidence concerning noncompliance with the ethical walls mandated by Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1435-1445 [284 Cal.Rptr. 154],no improper concurrent representation issue was present when the disqualification orders were entered.

These constituted conflicts in the evidence as to the estoppel contention of the Sounheins, a fact-bound determination. ( Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319 [ 24 Cal.Rptr.2d 597, 862 P.2d 158]; Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 266 [ 42 Cal.Rptr. 89, 398 P.2d 129].) Under these circumstances, remand would be appropriate because this court cannot make a factual determination concerning the statute of limitations and estoppel contentions of the parties. ( International Aerial Tramway Corp. v. Konrad, Doppelmayr Sohn (1969) 70 Cal.2d 400, 406, fn. 6 [ 74 Cal.Rptr. 908, 450 P.2d 284]; Yee v. Mobilehome Park Rental Review Bd. (1993) 17 Cal.App.4th 1097, 1109 [ 23 Cal.Rptr.2d 1]; Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d 500, 504-507 [ 42 Cal.Rptr. 908] ; see City of National City v. Wiener (1992) 3 Cal.4th 832, 850-851 [ 12 Cal.Rptr.2d 701, 838 P.2d 223] (conc. opn. of Baxter, J.); Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 779-780, fn. 6 [ 108 Cal.Rptr. 828, 511 P.2d 1180].) I would remand so as to allow the experienced and knowledgeable trial judge to resolve the section 65907, subdivision (a) statute of limitations and estoppel issues.

When the trier of fact applies a theory unsupported by substantial evidence, the fact that the same result could have been reached under a correct theory which was supported by the evidence does not permit the judgment to be affirmed. (See, e.g., Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d 500, 506 [ 42 Cal.Rptr. 908] ("Where the record reflects that the trier of fact has not considered a theory under which the evidence is conflicting, the reviewing court cannot rely on that theory to sustain the action of the lower court").) Rather it is the fact finder (here the Board) which must evaluate the evidence in light of a proper theory to determine whether it would reach the same result.

"Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. . . ." (§ 128.5, subd. (a).) In Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d 500, 506 [ 42 Cal.Rptr. 908], the court held that where the trier of fact has not considered a theory under which the evidence is conflicting, the reviewing court cannot rely on that theory to sustain the lower court's action. Zak is inapposite here, however, because the lower court did consider the imposition of sanctions under section 128.5, believing he had power to utilize that section but opting instead to utilize former section 128 under which sanctions in this case are proscribed.

(10) "Although an appellate court may affirm an order upon a theory of law other than that adopted by the trial court, it is not appropriate to do so by exercising a discretion and making factual decisions to which the trial court has never addressed itself." ( Jonson v. Weinstein, supra, 249 Cal.App.2d at p. 960, citing Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d 500, 506 [ 42 Cal.Rptr. 908].) As an application for relief from default is addressed in the first instance to the discretion of the trial court, we shall remand for further proceedings and a determination whether in the exercise of its equitable power defendants are entitled to relief from the default which preceded the judgment.