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 unopposed Motion of Gary Ceccatos and Beatrice Ceccatos (“Ceccatos”) to Disqualify Peter Bonis, Esq. (“Bonis”) as Counsel for David Montgomery and Lydia Montgomery (“Montgomerys”), is CONTINUED to 9:00 a.m. on August 18, 2019 in the Law and Motion Department.

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.

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 Cross-Complaint brought by 1893 Woodland EPA, LLC (“Woodland LLC”), while concurrently representing Bonis himself as CrossDefendant 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.)

Additionally, as to the claimed conflict of interest based on successive representation 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, supra, 9 Cal.4th at 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.) The conflict identified by the Ceccatos appears to be that the interests of Bonis, the Montgomerys and the Ceccatos are adverse since they are all named as Cross-Defendants in Woodland LLC’s CrossComplaint. The Ceccatos claim that they seek to hold Bonis responsible for Woodland LLC’s claims against the Ceccatos and the Montgomerys, and also seek apportionment of liability, if any is found, between the Montgomerys, Bonis and the Ceccatos. The Ceccatos claim that Bonis and the Ceccatos had a direct attorney-client relationship, which establishes the presumption of confidential information passed to Bonis.

However, 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, 475477.)

Here, the Ceccatos fail to offer any evidence as to the nature of the purported confidential information or a statement of how such information relates to Bonis’ current representation of the Montgomerys. The declaration of Gary Ceccatos does not address these issues. Furthermore, Bonis has been jointly representing both Gary Ceccatos and David Montgomery with respect to litigation over the trailer park since at least 2012, and as to Woodland LLC’s Cross-Complaint in this action that was filed on December 19, 2016, until the Ceccatos filed a substitution of attorneys on April 30, 2018. Thus, it is unclear whether any confidential communications have been made to Bonis in light of such joint representation.

Moreover, the court questions whether this motion is timely in light of the joint representation of Gary Ceccatos and David Montgomery by Bonis as their counsel since 2012 and in this action since it was filed in 2015. The Ceccatos claim that the interests of Bonis, the Ceccatos and the Montgomerys are adverse with respect to Woodland LLC’s Cross-Complaint in this action, which was filed over two and a half years ago. The Ceccatos also substituted in their current counsel on April 30, 2018, over a year ago. A motion to disqualify counsel may be impliedly waived by failing to bring the motion in a timely manner. (Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839.) As such, the Ceccatos are given an opportunity to address this issue.

Accordingly, the Ceccatos are to provide supplemental briefing of no more than ten pages, addressing these issues along with any authority they have in support. Their supplemental briefing is to be filed and served by no later than July 31, 2019.