Filed 4/3/20 Griffin v. Hunt CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ANTOIAN GRIFFIN,

Plaintiff and Appellant,

v.

GARY HUNT et al.,

Defendants and Respondents.

F077845

(Super. Ct. No. 18CECG00984)

OPINION

THE COURT*

APPEAL from judgments of the Superior Court of Fresno County. Mark W. Snauffer, Judge.

Antoian Griffin, in pro. per., for Plaintiff and Appellant.

McCormick, Barstow, Sheppard, Wayte & Carruth and Timothy J. Buchanan for Defendants and Respondents.

-ooOoo-

Plaintiff Antoian Griffin, a self-represented litigant, appeals from a judgment entered after the superior court granted defendants’ anti-SLAPP motions. Griffin contends the court should not have considered the motions and, instead, should have entered a court judgment in his favor because defendants had defaulted by not timely paying the filing fees for their anti-SLAPP motions. Griffin’s arguments raise some interesting questions about the payment, receipt and acceptance of filing fees for electronically filed motions and the documents generated by the superior court to record the completion of those steps. Ultimately, however, we conclude the questions about when the filing fees were paid are not critical to the outcome of this appeal because the record supports the court’s implied finding of fact that the anti-SLAPP motions actually were filed by the clerk of court within 30 days of service of the complaint. Even if the motions were filed without the simultaneous payment of fees, the motions would be regarded as timely under California law. In short, the actual filing date determines the timeliness of the filing even if the filing fees were not paid at that time.

Accordingly, defendants’ anti-SLAPP motions were timely filed, and the superior court (1) properly corrected the entry of default to show it was denied and (2) properly denied Griffin’s subsequent request for a court-entered default judgment. In addition, as explained below, the other claims of error raised by Griffin do not demonstrate a reversible error occurred.

We therefore affirm the judgment.

BACKGROUND

Initial Lawsuit and Appeal

In April 2012, Griffin filed a legal malpractice action in the Fresno County Superior Court against defendant Alex Berlin. The action was assigned case No. 12CECG01065. In August 2013, the attorney representing Berlin (Berlin’s Lawyer) filed a motion for summary judgment on behalf of Berlin. In October 2013, the trial court granted the motion for summary judgment. After judgment was entered, Griffin appealed, and this court assigned his appeal case No. F068780. On November 18, 2014, this court affirmed the judgment in an unpublished opinion. Our opinion summarized the matter as follows:

“Appellant Antoian Griffin, retained respondent Alex Berlin, to represent him before the Workers’ Compensation Appeals Board. Appellant claimed he was entitled to workers’ compensation benefits for a low back injury sustained during a one day job. However, based on appellant’s testimony and medical records, the Administrative Law Judge (ALJ) determined that appellant did not sustain an industrial injury.

“Appellant then filed the underlying action for damages alleging that respondent committed legal malpractice and breached his fiduciary duty. Appellant claimed that respondent did not submit all of the necessary evidence to the ALJ and permitted defense evidence to be admitted without objection. On respondent’s motion, the trial court granted summary judgment in his favor.

“Appellant contends respondent did not meet his burden of proof to show summary judgment was proper. However, appellant has failed to meet his burden to demonstrate reversible error on appeal. Accordingly, the judgment will be affirmed.”

Second Appeal

The malpractice lawsuit generated a second appeal, which this court assigned case No. F072916. Berlin’s Lawyer also represented Berlin in the second appeal. On February 8, 2017, this court filed an unpublished opinion that summarized the second appeal as follows:

“On September 2, 2015, appellant moved to set aside the judgment under Code of Civil Procedure section 473, subdivision (b). The trial court denied the motion on the ground that it was filed more than six months after judgment was entered. The court further found there was no evidence of fraud and the judgment was not void.

“Appellant challenges the trial court’s ruling on the grounds that mistakes were made and he was misled by the court. Appellant further contends that respondent “ ‘defaulted and perjured’ ” himself and that appellant “ ‘did not get a fair hearing.’ ”

“The trial court correctly denied appellant’s motion to set aside the judgment. Accordingly, the order will be affirmed.” (Footnote omitted.)

2017 Lawsuits

In June 2017, Griffin filed a lawsuit naming the law firm that represented Berlin as the defendant. The superior court assigned case No. 17CECG01970 to the lawsuit. Griffin alleged the firm falsified documents and falsified the judge’s signature. In September 2017, the trial court granted the law firm’s anti-SLAPP motion.

Next, Griffin filed a lawsuit against Berlin’s Lawyer, which the superior court assigned case No. 17CECG03599. Berlin’s Lawyer filed an anti-SLAPP motion, which the court granted in January 2018. The court concluded (1) Berlin’s Lawyer had presented evidence rebutting the allegation that a judge’s signature had been falsified; (2) the alleged wrongful conduct fell within the litigation privilege codified in Civil Code section 47, subdivision (b); and (3) the allegations of fraud also were barred by the statute of limitations.

Also in 2017, Griffin submitted a pro se civil rights action against Berlin’s Lawyer and Fresno County Superior Court Judge Jeffrey Y. Hamilton along with an application to proceed in forma pauperis to the United States District Court for the Eastern District of California. The magistrate judge assigned to screen the complaint determined Griffin’s allegations failed to state a claim under 42 U.S.C. section 1983. In February 2018, the district court adopted the magistrate judge’s findings and recommendations and dismissed Griffin’s claim without leave to amend.

The Present Lawsuit

In March 2018, after the dismissal of his federal lawsuit, Griffin filed the present action in the Fresno County Superior Court, which assigned it case No. 18CECG00984. Griffin named Berlin and Berlin’s Lawyer as defendants along with Does 1 through 7. Griffin alleged that beginning in November 2015, “and at various other times thereafter, Defendants met, joined together, planned, and conspired to intentionally cause [Griffin] to lose his court case .…” Griffin’s prayer for relief requested a declaration that the defendants engaged in a civil conspiracy, an injunction prohibiting acts in furtherance of the conspiracy, compensatory and incidental damages in an amount not less than $5 million, punitive damages, and costs and attorney fees.

Defendants responded to the complaint by submitting anti-SLAPP motions. Their notices of motions and supporting papers were stamped “E-FILED [¶] 4/26/2018 2:45 PM.” The register of actions included in the clerk’s transcript for this appeal also shows the motions were filed on April 26, 2018, and the entries include the notation, “Motion (No Fee).” The register of actions includes a “Financial” section showing the fees assessed by the court and the payments and credits for each party. The entries in the register of actions for this case show assessments of $435 were made to Berlin and Berlin’s Lawyer on May 16, 2018, and payments of those amounts were received on May 17, 2018.

Besides the register of actions, the clerk’s transcript, as augmented, includes a four-page document containing information about the submission and handling of defendants’ anti-SLAPP motions. Under an “Envelope Information” heading, the document sets forth (1) the envelope identification number as 1455674; (2) the “Submitted Date” as “4/26/2018 2:45 PM PST”; and (3) the “Submitted User Name” as “efile.eddings+1@gmail.com.” We note the “Submitted Date” is the same date and time as the e-filing date and time stamped on the first page of defendants’ anti-SLAPP motions.

Also, the first page of the document in the augmented clerk’s transcript has a “Filings” heading with entries stating the filing type as “EFile”; the filing status as “Accepted”; and the accepted date as “4/27/2018 9:24 AM PST.” In addition, it states the filing was on behalf of Berlin and Berlin’s Lawyer. The final page of the document summarizes information about the filing fees for the motions, stating the total filing fee ($870.00), the payment service fee ($0.25), and “E-File Fee” ($3.50). The filing fee of $870 represents the two $435 first appearance fees for each defendant. The “Envelope Total” is stated as $873.75. The entry for transaction response states, “Payment Complete” without specifying a date.

The Default

On May 2, 2018, Griffin filed a request for entry of default using mandatory Judicial Council form CIV-100. The version of this form attached to the declaration Griffin filed on June 8, 2018, shows the deputy clerk marked the box for “Default entered as requested on (date)” and wrote “5-2-18” in the space provided for the date. In contrast, the version of the form included as the official document in the clerk’s transcript shows (1) the mark in the first box and corresponding date have been crossed out and (2) an “X” in the second box for “Default NOT entered as requested (state reason),” which is followed by “Denied[.] Motion to strike filed 4-26-18.”

On May 9, 2018, Griffin filed a request for clerk’s judgment using mandatory Judicial Council form CIV-100. Griffin did not enter his name in the line of the form for the name of the person who filed the complaint. In item 2.a. of the form, which states the amount of the judgment to be entered based on the demand in the complaint, Griffin entered $5 million. At the bottom of the form, in the area marked for court use only, the clerk wrote: “Clerk’s judgment not enter[ed] as line #1.b. is incomplete. Also clerk is not authorized to grant judgment on type 42 cases or amounts not mentioned in complaint. Must apply for Court Judgment. (Party is required to submit new CIV-100 & JUD-100 forms when re-submitting).”

Griffin responded to the handwritten instructions from the deputy clerk by submitting a request for court judgment on Judicial Council form CIV-100 on May 16, 2018. In the area of the form marked for court use only, the clerk wrote: “No action taken[.] Default denied.”

On June 8, 2018, Griffin filed a declaration that (1) described the default he was granted on May 2, 2018, (2) explained his attempts to obtain a default judgment, and (3) addressed the possibility his request for a judgment had been denied and the default overturned because defendants had filed anti-SLAPP motions. Griffin stated: “While it is true that the defendants filed a motion they did not pay the fees that was [sic] required to file that motion which made their motion invalid. [¶] The courts are committing fraud and this is not the only time this has happened to me dealing with these defendants.” Griffin stated he was objecting to the hearing taking place on defendants’ motion and was requesting a judgment against both defendants.

Order and Appeal

On June 14, 2018, the trial court held a hearing on the anti-SLAPP motions. Berlin’s Lawyer and defense counsel appeared at the hearing. Griffin did not appear. The trial court issued a law and motion minute order stating the tentative ruling would become the order of the court. The tentative ruling was to grant the anti-SLAPP motions of defendants and to order the complaint stricken without leave to amend. The tentative ruling addressed Griffin’s argument about the validity of the default he obtained by stating:

“On May 2, 2018, [Griffin] filed a request for default against the Defendants. Although it appears the default was initially granted, it was subsequently stricken by the Clerk of the Court. In a Declaration filed by [Griffin], he contends that the default should have remained in effect since the Defendants had not paid their motion fees for the Anti-SLAPP motions, and that, therefore, the motions are invalid. [Griffin] cites to Government Code §70617, subdivision (a) for the proposition that a party must pay $60 as a filing fee for a motion. However, Government Code §70617, subdivision (b)(1) states that there will be no fee under subdivision (a) (the $60 fee) for any motion “ ‘that is the first paper filed in an action and on which a first paper filing fee is paid.’ ” According to the Court’s records, that filing fee of $435 has been paid by each of the Defendants. (Government Code §§70611,70602.5, 70602.6.) Therefore, [Griffin’s] objection to the consideration of the Anti-SLAPP filing fee is overruled.”

On June 21, 2018, separate judgments, one in favor of Berlin’s Lawyer and one in favor of Berlin, were signed and filed by the court. On July 2, 2018, the clerk of court filed and mailed a notice of striking filed documents stating the complaint had been stricken pursuant to the June 21, 2018, judgments. On July 13, 2018, Griffin filed a notice of appeal that referred to “JUDGEMENT ON A MOTION TO STRIKE,” which this court interprets as being taken from both judgments filed on June 21, 2018.

Proceedings on Appeal

After briefing of the appeal was complete, this court requested supplemental briefing of specific issues relating to the question about when a responsive pleading or motion is deemed filed in relation to the payment of filing fees. (See Gov. Code, § 68081.) The request asked defendants if they agreed the register of action accurately identified when the filing fees for the anti-SLAPP motions were paid and, if not, whether other information in the clerk’s transcript showed payment on an earlier date. The request also asked defendants whether they were able to demonstrate an earlier payment by submitting a request for judicial notice of the “confirmation of filing” issued to them pursuant to California Rules of Court, rule 2.259(a)(2). The parties were directed to provide argument and authority supporting their contention about when defendant’s anti-SLAPP motions should be deemed filed in relation to the payment of the filing fees. The letter referred to Rules 1.20, 2.258 and 2.259(a)(2), three published California opinions, and three federal decisions.

In December 2019, defendants filed a supplemental letter brief and supported it with a request for judicial notice of (1) a list of the superior court’s certified electronic service providers and (2) a confirmation of filing issued from the superior court’s vendor to Eddings Attorney Service, which showed defendant’s motions and related filing fees totaling $870 were accepted by the superior court in April 2018. Defendants argued the documents in their request for judicial notice demonstrated that they paid the filing fees when they submitted their anti-SLAPP motions for electronic filing. Alternatively, defendants argued the date the clerk filed the motions and supporting documents “is the date that the motions should be deemed ‘filed,’ regardless of when the filing fees were paid” and cited Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457 (Duran).

Griffin opposed defendants’ request for judicial notice on a variety of grounds. We agreed with Griffin’s arguments and filed an order on January 21, 2020, stating “that, while the documents appear to be relevant evidence, there is insufficient information available to support taking judicial notice of them and the asserted fact that the filing fees were paid on April 26, 2018.” Accordingly, we denied defendants’ request for judicial notice. In addition, our order directed the clerk of the superior court to augment the clerk’s transcript with any document constituting the “confirmation of filing” referred to in Rule 2.259(a)(2) or any e-filing envelope relating to defendants’ anti-SLAPP motions. In response, the clerk filed an augmented clerk’s transcript containing the four-page document described previously.

Following receipt of the augmented clerk’s transcript, we requested a second round of supplemental briefs to discuss the impact of the new document on the issue of when defendants paid the filing fees for their motions. We directed defendants to file their supplemental letter brief no later than February 24, 2020, and Griffin to file his supplemental letter brief no later than March 6, 2020. Defendants filed their letter on February 28, 2020, and Griffin filed his on March 4, 2020.

DISCUSSION

I. ENTRY OF DEFAULT JUDGMENT

A. Contentions of the Parties

Griffin contends the judgments in favor of defendants were erroneously entered because (1) defendants defaulted by failing to pay their filing fees on time; (2) the default had been properly entered against defendants on May 2, 2018; and (3) the fees were not paid until after Griffin requested a default judgment on May 16, 2018. Griffin asserts his request for court judgment on Judicial Council form CIV-100 should have been granted instead of denied.

Defendants present two main arguments opposing Griffin’s claim he was entitled to the entry of default and the subsequent entry of a default judgment. First, they disagree with Griffin’s version of the facts and assert they paid their first appearance fee when they electronically filed their anti-SLAPP motions in April. Second, defendants disagree with Griffin’s view of California law. They contend that even if there is an unresolved question of fact about when the filing fees were paid, Griffin is not entitled to a default judgment because the record clearly establishes their motions were electronically filed on April 26, 2018, and that “is the date the motions should be deemed ‘filed,’ regardless of when the filing fees were paid.”

B. Analysis

1. The Factual Dispute

As described earlier, the appellate record contains conflicting evidence about when defendants paid their filing fees. The entries in the register of actions supports Griffin’s assertion that the fees were not paid until May 17, 2018, which is after he submitted his request for a court judgment. In contrast, the document added to the clerk’s transcript as a result of this court’s augmentation order contains information supporting defendants’ assertion that they paid the fees when they electronically filed their anti-SLAPP motions in April 2018.

Confronted with conflicting evidence on an unresolved question of fact, we have at least four options. First, in certain circumstances, appellate courts can infer the trial court impliedly resolved the question. However, appellate courts accept the existence of implied factual findings only if they are supported by substantial evidence. (See People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 [appellate court accepted trial court’s implied findings that were supported by substantial evidence].) Here, the record before the trial court lacks substantial evidence contradicting the payment date listed in the register of actions. Therefore, we will not infer the trial court impliedly found the fees were paid with the filing.

Second, we could invoke our authority under section 909 and Rule 8.252(b) and (c), and resolve the disputed question of fact by making our own findings. That “authority should be exercised sparingly” when there are “exceptional circumstances.” (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Here, we conclude the circumstance are unusual, but not “exceptional” for purposes of invoking the authority of an appellate court to receive evidence and make findings to resolve disputed questions of fact.

Third, we could remand to the trial court to resolve the factual dispute. (See §§ 43, 906 [authority to remand for further proceedings].) Before remanding, however, we must determine that the unresolved factual dispute is material to the outcome of this case. If a fact is immaterial, there is no point in having the trial court address it. Therefore, we will undertake the fourth option and decide the legal question raised by defendants’ argument that this appeal can be decided without determining when the filing fees were paid. If we decide the filing fee payment date is a material fact, we will remand for the trial court to resolve the dispute in the first instance.

Defendants’ legal argument relies on the date the motions were electronically filed, not the date the fees were paid. Defendants assert the date the motions were electronically filed is clearly established by the record and Griffin has not contested that date. Defendants contend the date of filing determines whether they were in default or had timely presented their anti-SLAPP motions.

2. Applicable Rules of Law

Defendants contend the applicable rules of law are contained in Duran, supra, 114 Cal.App.4th 457, where the First Appellate District referred to the general rule “ ‘that the filing fee must be paid in full before the clerk can accept the pleading for filing.’ ” (Id. at p. 460.) The court then stated that “while it is mandatory for the court clerks to demand and receive statutorily required filing fees, it is not, as defendants maintain, a jurisdictional defect if the precise fee is not collected.” (Ibid.) Among the exceptions to the general rule that the filing fee must be paid before a pleading is filed, is the following: “[I]f a clerk does file without receiving the fee, the filing is nevertheless valid.” (Ibid.)

We conclude this exception to the general rule is a proper statement of California law and, as a result, we will not create a split of authority among the Courts of Appeal. The exception stated in Duran is consistent with the approach taken in federal cases. (E.g., Rodgers ex rel. Jones v. Bowen (11th Cir.1986) 790 F.2d 1550, 1551–1552 [holding that a complaint is deemed “filed” for statute of limitations purposes when actually or constructively received by the court clerk, despite the untimely payment of the filing fee]; Wrenn v. American Cast Iron Pipe Co. (5th Cir.1978) 575 F.2d 544, 547 [holding that the untimely payment of the filing fee does not vitiate the validity of a timely filed complaint]; Gould v. Members of New Jersey Div. of Water Policy & Supply (3d Cir.1977) 555 F.2d 340, 341 [“the filing fee requirement cannot operate to render untimely a notice of appeal that is timely received in the Clerk’s office”].)

Another principle recognized in California is that the “clerk may properly refuse to file a document until the filing fee is paid, and the document is not deemed filed until payment.” (Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th 1261, 1268.) This principle does not apply to the facts of this case because the clerk did not refuse to file defendants’ anti-SLAPP motions. Instead, the anti-SLAPP motions were stamped as “E-FILED” on “4/26/2018 2:45 PM.” This filing stamp on documents in the clerk’s transcript is sufficient evidence to support an implied finding by the trial court that the anti-SLAPP motions were timely filed. Consequently, under the principle stated in Duran, the filing of the anti-SLAPP motions on April 26, 2018, was valid even if the filing fees were not paid before or with the electronic filing.

As a result, we conclude the trial court did not err when it considered the anti-SLAPP motions rather than granting Griffin’s request for a court judgment after default. Accordingly, there is no need to remand this case so the factual dispute about when the filing fees were paid can be decided by the trial court its role as the trier of fact.

C. Correction of Errors

Griffin’s arguments suggest some trial court personnel acted improperly when they altered his request for entry of default filed on May 2, 2018. A box at the bottom of the mandatory form used to request the entry of default is “FOR COURT USE ONLY.” Initially, that box showed the default requested by Griffin was entered on May 2, 2018. Later, changes were made so the request was “Denied[.] Motion to strike filed 4-26-18.” Griffin supports this contention by referring to the law of the case doctrine and citing Hall v. City of L.A. (9th Cir. 2012) 697 F.3d 1059.

Defendants contend Griffin is under the wrong impression about the facts because Judge Hamilton ruled in case No. 12CECG01065, Griffin’s first lawsuit against Berlin and Judge Hamilton did not rule on defendants’ anti-SLAPP motion in the present matter. Defendants also contend that even if multiple assignments had been made in this case, it would not be procedural error. They argue the law of the case doctrine applies when judges make contradictory rulings in the same case, which is not relevant here because Judge Hamilton’s rulings were made in an earlier case.

Griffin’s reply supports his factual assertion that Judge “Hamilton issued the ruling on the Anti Slapp Motion and he was never assigned to the case” by referring to entries in the register of actions for June 14, 2018. The two entries list defendants’ two anti-SLAPP motions and state the hearing time was 3:27 p.m. The entries list Judge Hamilton as the Judicial Officer and have “Uncontested” listed as the result.

2. Resolution of Factual Dispute

Other information in the appellate record contradicts the register of actions’ references to Judge Hamilton. For instance, the law and motion minute order for the June 14, 2018 hearing identifies Judge Snauffer as the judge who presided over the hearing. In addition, the tentative ruling attached to the minute order was issued by Judge Snauffer and bears his initials. Faced with a conflict between the information given in the register of actions entries and the information in the minute order and attached tentative ruling, we rely on the primary documents, one of which bears the judge’s handwritten initials. Consequently, we conclude Judge Snauffer issued the tentative ruling on the anti-SLAPP motions, presided over the uncontested hearing, and then adopted his tentative ruling as the order of the court.

3. Law of the Case

“The law of the case doctrine, a judicial invention, aims to promote the efficient operation of the courts. [Citation.] It generally pre[c]ludes a court from reconsidering an issue decided previously by the same court or by a higher court in the identical case. [Citation.] The issue in question must have been decided explicitly or by necessary implication in the previous disposition.” (Hall v. City of L.A., supra, 697 F.3d at p. 1067.)

The law of the case doctrine does not apply in this action because no issue decided by one judge was reconsidered and decided differently by another judge. Here, the anti-SLAPP motions were decided by Judge Snauffer and those motions were not reconsidered by another judge.

4. Assigning Multiple Judges to One Case

Rule 3.734 provides in full: “The presiding judge may, on the noticed motion of a party or on the court’s own motion, order the assignment of any case to one judge for all or such limited purposes as will promote the efficient administration of justice.” This rule makes the assignment of a case to one judge for all purposes discretionary, not mandatory. Therefore, even if more than one judge handled matters arising in this lawsuit, it would have been allowed by California law.

B. Law Firm’s Conflict of Interest

Griffin’s opening brief contends “that Timothy J. Buchanan could not represent [Berlin’s Lawyer] because they work for the same law firm and this was clearly a conflict of interest and [Berlin’s Lawyer] cannot represent Alex Berlin because [Berlin’s Lawyer] is a defendant in the case.” Griffin supports this contention by citing California Rules of Professional Conduct, former rule 3-310 (former rule 3-310). Former rule 3-310 provided:

“(B) A member shall not accept or continue representation of a client without providing written disclosure to the client where:

“(1) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; or

“(2) The member knows or reasonably should know that: [¶] (a) the member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; and [¶] (b) the previous relationship would substantially affect the member’s representation; or

“(3) The member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially by resolution of the matter; or

“(4) The member has or had a legal, business, financial, or professional interest in the subject matter of the representation.

“(C) A member shall not, without the informed written consent of each client:

“(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or

“(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or

“(3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter.” (Italics added.)

“[I]nformed written consent” means a “written agreement to the representation following written disclosure.” (Former rule 3–310(A)(2).) “[D]isclosure” means “informing the client or former client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client.” (Former rule 3–310(A)(1).)

California courts have long recognized that “[n]ot all conflicts of interest require disqualification. In some situations, the attorney may still represent the client if the client’s consent is obtained. [Citations.] ‘Giving effect to a client’s consent to a conflicting representation might rest either on the ground of contract freedom or on the related ground of personal autonomy of a client to choose whatever champion the client feels is best suited to vindicate the client’s legal entitlements.’” (Zador Corp. v. Kwan (1995) 31 Cal.App.4th 1285, 1295; see Rest.3d Law Governing Lawyers, § 122 [client consent to conflict of interest].) Accordingly, we conclude former rule 3-310 does not bar Berlin’s Lawyer from being represented by another attorney in his law firm. To the extent a conflict of interest may have existed, Berlin’s Lawyer may have consented. This court cannot require Berlin’s Lawyer and his law firm to disclose their written agreement to the representation along with any “informed written consent” required by rule 3-310(C) because those documents are protected by attorney-client confidentiality and this court cannot interfere with that relationship. The same analysis applies to the relationship between Berlin and Berlin’s Lawyer. Accordingly, there is nothing in the record to show an actual violation of the former rule 3-310.

More importantly for purposes of this appeal, Griffin lacks standing to raise the potential conflict or failure to disclose as a ground for disqualifying opposing counsel. To have the requisite “standing,” the moving party must “be able to allege injury, that is, an invasion of a legally protected interest.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.) In this case, Griffin has not shown that he has an interest protected by former rule 3-310. Nothing in the record shows Berlin’s Lawyer or his law firm ever had an attorney-client relationship with Griffin or, alternatively, that Griffin had an expectation of confidentiality that would be compromised by the participation of Berlin’s Lawyer or his law firm in this matter. (See Burman, at p. 1356 [before disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney or must have an expectation of confidentiality].)

In In re Marriage of Murchison (2016) 245 Cal.App.4th 847, the court stated it had “found no case which permits a court to disqualify a lawyer for ethical violations when the nonmoving party wishes to continue the representation and the representation does not harm the opposing party’s interest.” (Id. at p. 853, citing City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 851 [“clients have a right to retain their chosen counsel”].) As a result, the court stated it “must respect [the client’s] choice to retain Lawyer.” (In re Marriage of Murchison, supra, at p. 853.)

Applying the foregoing principles to the facts of this case, we conclude Griffin has not demonstrated reversible error based on the alleged conflict of interest between Berlin’s Lawyer and the law firm representing Berlin’s Lawyer.

C. Fraud

Griffin contends the court committed fraud and the judges “committed fraud when they had the appellant’s complaint stricken and default denied on an Anti Slapp Motion that was not even valid.” In the sections of his appellate brief stating this argument, Griffin has not set forth the reasons why he believes the default was wrongly denied and the anti-SLAPP motion was not valid. Therefore, we presume he is making the same argument addressed earlier—specifically, that defendants were in default because their payment of filing fees occurred after the entry of default on May 2, 2018. So construed, Griffin’s fraud argument fails for the same reasons as his argument about his entitlement to the entry of a default judgment.

DISPOSITION

The judgments filed on June 21, 2018, are affirmed. Defendants shall recover their costs on appeal.

Defendant’s motion for this court to take evidence and make findings, which is the remaining part of their motion filed on December 6, 2019, is denied.