Filed 9/24/20 Marriage of Rattan & Prasad CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of KOMAL RATTAN and ABHIJIT PRASAD.

KOMAL RATTAN et al.,

Respondents,

v.

ELANA THIBAULT,

Appellant.

A157880

(Alameda County

Super. Ct. No. VF07356209)

Attorney Elena Thibault, who briefly represented Abhijit Prasad in this protracted divorce litigation, appeals from an order that disqualified her from representing Prasad and sanctioned her $5000 for filing frivolous motions. Thibault contends the trial court abused its discretion when it granted Komal Rattan’s motion to disqualify her due to her previous affiliation with a firm that was to represent Rattan in the divorce action. The contention is meritless, so we affirm her disqualification. We dismiss Thibault’s attempt to appeal the $5,000 sanctions order because it is not an appealable order.

I. Background
II.
This is one of a number of appeals filed in this court arising out of this marital dissolution action. (E.g., Prasad v. Superior Court (April 14, 2020, A147489) [nonpub. opn.].); Rattan v. Prasad (April 9, 2020, A151036) [nonpub. opn.].); Rattan v. Prasad (April 9, 2020, A149624) [nonpub. opn.].); Prasad v. Superior Court (March 17, 2016, A147654) [nonpub. opn.].); Rattan v. Prasad (June 28, 2019, A155472) [nonpub. opn.].); Rattan v. Prasad (Sept. 30, 2014, A139757) [nonpub. opn.],); Rattan v. Prasad (Sept. 30, 2014, A140470) [nonpub. opn.].) But we need not delve into the litigation’s long history to resolve Thibault’s appeal.

On May 17, 2018, ¬¬Prasad filed a substitution of attorney form naming Thibault as his new counsel. When Thibault first appeared at a hearing on May 21, Rattan objected to her representation of Prasad based on a conflict of interest created by Thibault’s employment with Rattan’s former attorney. The trial court temporarily disallowed the substitution and continued the matter so Rattan could file a formal opposition.

On May 24 Thibault filed a new Substitution of Attorney and an ex parte motion on Prasad’s behalf seeking emergency orders concerning the possession and control of the former marital home. Rattan opposed the ex parte motion and moved formally to disqualify Thibault, strike her pleadings, and find the motion lacked evidentiary support, was frivolous and brought in bad faith. Rattan also sought attorneys’ fees as sanctions under Code of Civil procedure sections 128.5 and 128.7.

Rattan’s moving papers showed that she retained Anu Peshawaria in 2008 to represent her in these dissolution proceedings and related domestic violence cases. Peshawaria represented and advised Rattan in regards to the family law proceedings for somewhere between three and six months, but ultimately Rattan became dissatisfied with her and retained new counsel. Thibault later worked as an attorney in Peshawaria’s office. In June or July of 2016 Prasad retained Thibault to represent him, but Thibault was advised of the conflict of interest and withdrew from the representation on July 13, 2016.

Rattan supported her motion with copies of her $5,000 retainer check to Peshawaria; a July 8, 2016 letter from Rattan’s counsel advising Thibault of the conflict; and Facebook and LinkedIn pages describing the “Anu Attorney Law Firm,” located at 46560 Fremont Boulevard #205 in Fremont, as “handl[ing] a wide range of legal concerns” including family law and identifying Peshawaria as “a unique Indian American lawyer who has expertise in both Indian laws as well as U.S. laws” with 34 years’ experience with California Immigration Lawyers. The motion also attached documentation showing Peshawaria was admitted to the bar in Washington State in 2011 and the California bar in 2015.

Rattan testified at the hearing. Thibault objected because she “would have [had] a way to be prepared for this testimony offered today in court and maybe perhaps brought Ms. Peshawaria with me” had she known Rattan would testify. Rattan corroborated her moving papers. She retained Peshawaria in June 2008 to represent her in the divorce action. She believed Peshawaria was a licensed attorney because Peshawaria advertised herself in a Silicon Valley magazine as a lawyer, her email address was AnuPeshawariaattorney@yahoo.com, and, although Rattan told Peshawaria she was looking for a divorce lawyer, Peshawaria never disclosed that she was not licensed to practice law in California.

Over the following months Rattan met frequently with Peshawaria at Peshawaria’s office and shared information about custody, property division, child and spousal support issues. “So everything that we are talking about in this proceeding, this particular file was—she represented me about that and I shared the information relating to this and my thought process. My separate—my understand[ing] being of issues and everything else she made me write a story of what I had gone through in this situation. What I wanted from the divorce and she also explained to me and presented to me how I should go about doing this divorce.” Peshawaria showed Rattan court documents she said she was going to file, but she never filed anything with the court and, about three months into the representation, told Rattan she needed another $5,000. Dissatisfied with Peshawaria’s representation, Rattan discharged her and started looking for new counsel.

Thibault later worked in Peshawaria’s firm. In 2016 she was retained by Prasad, but she promptly substituted out of the case when she was informed of Peshawaria’s prior representation of Rattan. After she noticed a similarity between Thibault’s email address on a court document and Peshawaria’s, Rattan conducted some research, and discovered that Peshawaria had not been licensed to practice law in 2008. Rattan also discovered that Thibault had the same work address as Peshawaria.

Thibault began to cross-examine Rattan on the first day of the hearing and continued into the second. On the second day, Thibault started to question Rattan about the contents of a written narrative she had provided to Peshawaria in 2008. The following colloquy ensued when Thibault offered to present the actual document to Rattan in court. “The Court: Hold on. So you’re just—let me. I’m asking you a question very directly, Ms. Thibault. You’re offering to show to petitioner documentation regarding consultation with Ms. Peshawaria, what, back in 2008? [¶] Ms. Thibault: That’s correct. [¶] The Court; Okay. Alright. This examination is done. I’m not going to hear any further testimony at this point from Ms. Rattan. Do you have any further information you want to represent to the Court today?”

Thibault then offered two documents she said she obtained from Peshawaria’s “database.” They were Rattan’s written narrative and an unsigned retainer agreement. The court sustained Rattan’s objection to the proffer and observed: “Ms. Thibault, the fact that you brought to court today a document which you called up from a database which purports to be the, quote, unquote, story which Ms. Rattan provided to Ms. Peshawaria in 2008[,] I don’ think I need to hear anything else at this point. Alright.” During the discussion that followed, Thibault represented that she worked for Peshawaria for two years, that Peshawaria had a practice of forwarding cases to California lawyers “whenever issues arise in connection with California law,” and that she had intended to do so with Rattan’s case.

The court granted the motion to disqualify. “Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th, 1324, controls and the Rule of Professional Conduct 3-310 applies. The Court finds there is a substantial relationship between [Peshawaria’s] representation of [Rattan] in 2008 and Ms. Thibault’s current representation of [Prasad]. Ms. Thibault acquired confidential information from [Rattan] that is material to [Prasad]’s representation. There are factual similarities between the two representations, there are similarities in legal issues, and the nature and extent of Thibault’s involvement in the case is such that she is in a position to learn [Rattan]’s policy and strategy. Ms. Thibault failed to carry her burden to prove she had no exposure to confidential information relevant to the current action while she was a member of [Peshawaria’s] firm.”

The Court found Thibault’s motions were frivolous and filed without conducting a reasonable inquiry under the circumstances, that she failed to certify the claim, and that the claim was not warranted. The court granted Rattan’s request for sanctions and awarded $5,000 in attorneys’ fees to be paid as sanctions to Rattan’s counsel. Thibault filed a timely appeal. (Cal. Rules of Court, rule 8.104(c)(2).)

III. DISCUSSION
IV.
A. Disqualification
B.
Procedurally, Thibault asserts her disqualification was an abuse of the court’s discretion because (1) Rattan’s evidence was introduced through her live testimony rather than by declaration filed with her moving papers; and (2) the trial court unfairly limited her opportunity to cross-examine Rattan, particularly about the “story” Rattan provided to Peshawaria in 2008. Substantively, but also in support of her procedural claims, she asserts Peshawaria’s 2008 work with Rattan did not give rise to a vicarious conflict of interest because Peshawaria, as a non-attorney, could not have an attorney-client relationship with Rattan. None of her contentions have merit.

1. Legal principles
2.
“ ‘[A] former client may seek to disqualify a former attorney from representing an adverse party by showing that the former attorney possesses confidential information adverse to the former client [Citation.]’ [Citation] . . . Under the ‘substantial relationship’ test, subsequent representation is proscribed on the theory that its substantial relationship to the former representation ‘places the attorney in a situation where he or she could breach the duty of confidentiality to the former client.’ [Citation.] Possession of confidential information is presumed where ‘ “ ‘a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation or the relationship of the attorney to his former client confidential information material to the current dispute would normally have been imparted to the attorney . . . .” ’ ’’ [Citations.] If the substantial relationship test is satisfied by the former client, ‘ “. . . the discussion should ordinarily end. The rights and interests of the former client will prevail. Conflict would be presumed; disqualification will be ordered. . . .” ’ ” (In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 563.)

“ ‘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.] When substantial evidence supports the trial court’s factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. [Citation.] However, the trial court’s discretion is limited by the applicable legal principles. [Citation.] Thus, where there are no material disputed factual issues, the appellate court reviews the trial court’s determination as a question of law. [Citation.] In any event, a disqualification motion involves concerns that justify careful review of the trial court’s exercise of discretion. [Citation.]’ ” (Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1330-1331 (Aerojet-General).)

3. Analysis
4.
Thibault’s strictly procedural claims merit only brief discussion. Neither of the authorities she cites supports her claim that the court should not have allowed Rattan to support her factual assertions through her testimony rather than by written declaration. Rule 5.111 of the California Rules of Court, on which Thibault seems to place principal reliance, sets out procedural requirements for declarations supporting or responding to family law motions. Elliot v. McFarland United School District (1985) 165 Cal.App.3d 562 simply holds that a declaration containing only conclusory statements is inadequate to establish a conflict of interest. None of this supports Thibault’s odd assertion that a lawyer’s conflict of interest must be proven by declaration and may not be shown through live testimony.

Nor did the court err when it refused to let Thibault cross-examine Rattan about her 2008 written statement for Peshawaria containing her thoughts on issues of marital property, child custody, child and marital support, and litigation strategy in her divorce from Prasad. That statement was unquestionably confidential client information that Thibault had no right to access or use. (See generally Evid.Code §952; In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 592, fn. 8.) Any minimally ethical, competent California attorney should recognize such a basic principle of professional responsibility. Thibault, apparently, does not.

Thibault’s more substantive argument that no vicarious conflict of interest could arise from Peshawaria’s representation of Rattan because Peshawaria was not an attorney in 2008 is also meritless. Whether or not she was duly licensed to practice law, Peshawaria held herself out as an attorney and Rattan reasonably believed her to be so. As it turned out, Peshawaria was either practicing law without a license or had no intention of personally providing Rattan legal representation. But neither circumstance can allow an attorney later associated with Peshawaria’s firm to use Rattan’s confidential client information to confront and cross-examine her in the same matter for which she retained Peshawaria. “Where the potential conflict is one that arises from the successive representation of clients with potentially adverse interests, the courts have recognized that the chief fiduciary value jeopardized is that of client confidentiality. [¶] . . . Where the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed and disqualification of the attorney’s representation of the second client is mandatory; indeed, the disqualification extends vicariously to the entire firm.” (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283, italics omitted; see Henricksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 117 [“[W]here an attorney is disqualified because he formerly represented and therefore possesses confidential information regarding the adverse party in the current litigation, vicarious disqualification of the entire firm is compelled as a matter of law”].)

Thibault’s authorities fail to support her seeming position that confidential information obtained by a person falsely impersonating an attorney is exempt or different from the protection afforded confidential client information provided to duly licensed counsel. (See, e.g., O’Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115 (O’Gara) [information knowingly provided before the recipient was admitted to the bar did not give rise to attorney-client relationship precluding recipient’s subsequent representation of adverse party]; Allen v. Academic Games Leagues of America, Inc. (C.D. Cal. 1993) 831 F.Supp. 785, 787 [same].) In any event, disqualification is proper even without successive representation “ ‘where, as a result of a prior representation or through improper means, there is a reasonable probability counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation.’ ” (O’Gara, supra, 30 Cal.App.5th at p. 1127, quoting Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 309, italics added; Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 219 [disqualification warranted in such cases because situation implicates attorney’s ethical duty to maintain the integrity of the judicial process].)

This is such a case. Thibault’s distorted view of the law would work a fundamental injustice against clients who unknowingly reveal confidential information in the reasonable belief that the recipient is an attorney, not a charlatan. “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.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145). The trial court properly exercised its authority here.

Thibault’s further claim that the court failed to consider whether the information Rattan disclosed to Peshawaria was material to the pending issues or to weigh the parties’ competing interests is unsupported by the hearing transcript or any other indication in the record that the trial court gave those issues less consideration than they were due. “ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.). Her remaining contentions directly or obliquely challenge the sufficiency of the evidence. In light of the record as described in our factual discussion, infra, they withstand neither review for substantial evidence nor abuse of discretion. (See Aerojet-General, supra, 86 Cal.App.4th at pp. 1330-1331.)

B. Sanctions Order

As noted, the trial court found the motions Thibault filed on Prasad’s behalf were “frivolous” and “ filed without conducting a reasonable inquiry under the circumstances” and that Thibault “failed to certify the claim and the claim was not warranted under existing law and factual contentions.” The court sanctioned Thibault $5,000 in attorneys’ fees to be paid directly to Rattan’s counsel. Thibault maintains this was error because, among other things, Rattan’s sanctions motion was procedurally defective, the court failed to comply with various procedural requirements for imposing sanctions under sections 128.5 and 128.7, Thibault’s papers were meritorious, and the amount of sanctions was excessive. We will not address these assertions because the sanctions order is not appealable.

Section 904.1, subdivision (a)(12) provides that an appeal may be taken “[f]rom an order directing the payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).” (Italics added). The trial court ordered Thibault to pay $5,000 in sanctions, so her purported appeal from the order is not authorized by subdivision (a)(12). Thibault asserts the order is made appealable by section 904.1, subdivision (b), but she is mistaken. Subdivision (b) of section 904.1 provides that “[s]anction orders or judgments of five thousand dollars ($5,000) or less against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ.” (Italics added.) But this an appeal by an attorney, not a party. Accordingly, it is authorized by neither provision and must be dismissed.

DISPOSITION

The appeal from the sanctions order is dismissed. The order is otherwise affirmed.

 

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Fujisaki, J.

_________________________

Jackson, J.

Rattan v. Prasad, A157880