Lawzilla Additional Information: It is our understanding the tentative ruling was affirmed as a final court order and Peter Bonis was disqualified as counsel.

CIV532571 GARY CECCATO, ET AL. VS. 1893 WOODLAND EPA LLC, ET AL.

DAVID MONTGOMERY 1893 WOODLAND EPA LLC
PETER H. BONIS DAVID J. LONICH

MOTION FOR ORDER DISQUALIFYING PETER BONIS FROM REPRESENTING DAVID AND LYDIA MONTGOMERY TENTATIVE RULING:

The Motion of Gary Ceccatos and Beatrice Ceccatos (“Ceccatos”) to Disqualify Peter Bonis, Esq. (“Bonis”) as Counsel for David Montgomery and Lydia Montgomery (“Montgomerys”), is ruled on as follows:

(1) The court has reviewed Bonis’ opposition and the Ceccatos’ supplemental briefing. This motion was continued from July 18, 2019 for supplemental briefing by the Ceccatos. The Ceccatos assert that Bonis should be disqualified as counsel for the Montgomerys due to a conflict of interest based on concurrent representation and successive representation. The court requested further briefing regarding both concurrent and successive representation, as well as briefing on the issue of whether the motion was timely since both Gary Ceccato and David Montgomery had been represented by Bonis as their counsel since 2012 and this action since it was filed in 2015.

The court has now reviewed the supplemental briefing filed by the Ceccatos, as well as the opposition filed by Bonis on July 18, 2019, the same day as the prior hearing. Although the court has discretion to disregard Bonis’ very late-filed opposition, Bonis states that he was dealing with his mother’s and wife’s illnesses and therefore the court has still considered his opposition. In the future though, Bonis is cautioned to timely file his papers or seek appropriate relief prior to the hearing, or else the court may be inclined to disregard such late-filed papers.

(2) This motion appears to be timely. As to the issue raised by the court as to whether this motion is timely, the court finds that the Ceccatos have not waived the right to bring this motion to disqualify. In order for the court to find a motion to disqualify to be waived by failing to bring the motion in a timely manner, the delay has to be extreme or unreasonable. (Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 845 (“Liberty National”).) Where the opposing party has made a prima facie showing of unreasonable delay causing prejudice, disqualification should not be ordered, and the burden shifts to the moving party to justify the delay. (Ibid.)

Bonis fails to show that the Ceccatos have unreasonably delayed in bringing this motion such that the Montgomerys will be prejudiced. Further, it does not appear that the Ceccatos’ delay has been extreme or unreasonable in bringing this motion. Bonis has represented Gary Ceccato and David Montgomery since 2012, including the filing of the Complaint in this action in 2015. However, the Complaint no longer appears to be at issue since a receiver was appointed and the property was sold. The remaining issues in this action appear to be the Cross Complaint filed by Defendant/Cross-Complainant 1893 Woodland EPA, LLC (“LLC”) against the Ceccatos and the Montgomerys, and the Cross-Complaint filed by the Ceccatos (which is not brought against the Montgomerys). Bonis previously moved to set aside the defaults of the Ceccatos and the Montgomerys as to the LLC’s Cross-Complaint. Since then, it does not appear that Bonis has taken any further action with respect to the LLC’s Cross-Complaint. The Ceccatos point out that the operative pleading is now the LLC’s Fifth Amended CrossComplaint, to which the Montgomerys have not filed a response. Further, there is no trial date yet set for this action.

(3) The Ceccatos have not established a conflict of interest based on concurrent representation. In the Ceccatos’ supplemental briefing, they accept the court’s prior ruling finding that they had not established a conflict of interest based on concurrent representation.

Where the conflict of interest is alleged to be a concurrent representation, the “primary” value at issue is the attorney’s duty, and the client’s legitimate expectation of loyalty, rather than confidentiality. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 284 (Flatt).) Here, the Ceccatos are no longer represented by Bonis as a substitution of attorneys was filed in this action on April 30, 2018. (See the Ceccatos’ Request for Judicial Notice, Exh. 8.) Thus, they are not a current client of Bonis. Instead, the alleged concurrent representation that the Ceccatos appear to be arguing is that Bonis represents the Montgomerys as Cross-Defendants in the LLC’s CrossComplaint, while concurrently representing Bonis himself as Cross-Defendant to the Ceccatos’ Cross-Complaint. It is unclear whether the Ceccatos have standing to raise an alleged concurrent conflict of interest when it does not involve simultaneous or concurrent representation of them. Even if they had standing, it is also unclear how this purported conflict would violate Bonis’ duty of loyalty to the Ceccatos. Moreover, default was entered against Bonis as to the Ceccatos’ Cross-Complaint, and therefore it does not appear that Bonis ever represented himself with respect to the Ceccatos’ Cross-Complaint. (See Ceccatos’ Request for Judicial Notice, Exh. 9.)

The Ceccatos fail to establish a conflict of interest based on any concurrent representation, and therefore the motion on this ground is DENIED.

(4) The Ceccatos establish a conflict of interest based on successive representation. The court continued this motion for the Ceccatos to also address whether any confidential communications have been made to Bonis in light of such joint representation of the Ceccatos and the Montgomerys.

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 antecedent and current representation.” ((Flatt v. Sup. Ct. (1994) 9 Cal.4th 275, 283.) A 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.) In such a situation, the need to protect the first client’s confidential information requires that the attorney be disqualified from the second representation. (Ibid.) While the party seeking disqualification need not disclose the actual confidential information, there must be some showing of the nature of the communications or a statement of how they relate to the current representation. Conclusory statements are insufficient to support disqualification. (Elliott v. McFarland Unified School Dist. (1985) 165 Cal.App.3d 562, 572.) Also, disqualification may be denied where the former client could not reasonably expect the attorney would withhold the information from the present client. (Cornish v. Sup. Ct. (1989) 209 Cal.App.3d 467, 475-477.)

There appears to be a substantial relationship between the actions in which Bonis previously represented both Ceccato and Montgomery, and the LLC’s Cross-Complaint in this action in which Bonis represents Montgomery. Bonis previously filed the Complaint in this action on behalf of Ceccato and Montgomery for partition, dissolution and appointment of receiver. As a result, a receiver was appointed and the property was sold. The LLC now brings this CrossComplaint alleging claims only against Ceccato and Montgomery, alleging among other things, that Ceccato and Montgomery wrongfully represented themselves to be the managers of the LLC and attempted to sell the property. The LLC further alleges that when Ceccato became manager of the LLC, he failed to pay the debts and liabilities for the property and took all of the income from the property for his own personal benefit. Thus, Bonis’ prior representation of Ceccato is substantially related to the claims raised in the LLC’s Cross-Complaint against the Ceccatos and the Montgomerys.

Furthermore, Ceccato has now provided a supplemental declaration explaining the nature of the prior confidential communications between Ceccato and Bonis as it relates to the current litigation (the LLC’s Cross-Complaint). (See Ceccato Supplemental Decl. ¶¶ 2-7.)

Lastly, Bonis claimed that he obtained either via email or in writing a waiver of any conflict of interest. (See Bonis Decl. ¶ 15.) However, he failed to provide a copy of such written consent signed by the Ceccatos. (See Cal. Prof. Rules of Conduct Rule 3-310.) Thus, there is no evidence of any written consent by the Ceccatos regarding a conflict of interest . Moreover, Ceccato states that he never provided informed written consent to the waiver of the conflict of interest. (See Supp. Ceccato Decl. ¶ 2.)

The motion on this ground is therefore GRANTED.

Bonis is disqualified from representing the Montgomerys in this action. The Montgomerys have 60 days to retain new counsel from the date of the order. If additional time is needed, they should seek appropriate relief from the court prior to expiration of the 60 day period.

Bonis is to file and serve written notice of entry of this order on the Montgomerys.