34-2013-00152592
Nicholas Blasgen vs. Refractive Dialer LLC
Nature of Proceeding:
Filed By:
Motion to Disqualify Counsel
Pokala, Kalyan

Plaintiff Nicholas Blasgen’s (“Blasgen” or “Plaintiff”)) motion to disqualify Defendant’s
counsel Roger Brothers and Dominic Signorotti of Buchman Provine Brothers Smith
(“BPBS”) from: (1) dual representation of Refractive Dialer LLC (“RD”) and Joshua
Tillman (“Tillman”), and (2) representing RDL on grounds of conflict of interest is ruled
upon as follows.

“A judge’s authority to disqualify an attorney has its origins in the inherent power of
every court in the furtherance of justice to control the conduct of ministerial officers and
other persons in pending judicial proceedings.” (Oaks Management Corp. v. Superior
Court (2006) 145 Cal.App.4th 453, 462-463.) “The power is frequently exercised on a
showing that disqualification is required under professional standards governing
avoidance of conflicts of interest or potential adverse use of confidential information.” (
Id.) “Motions to disqualify counsel present competing policy considerations.” (Id.) “On
the one hand, a court must not hesitate to disqualify an attorney when it is satisfactorily
established that he or she wrongfully acquired an unfair advantage that undermines
the integrity of the judicial process and will have a continuing effect on the proceedings
before the court. [Citations.] On the other hand, it must be kept in mind that
disqualification usually imposes a substantial hardship on the disqualified attorney’s
innocent client, who must bear the monetary and other costs of finding a replacement. A client deprived of the attorney of his [or her] choice suffers a particularly heavy
penalty where … his [or her] attorney is highly skilled in the relevant area of the law.” (
Id. (citations omitted).)

Plaintiff filed this action on March 28, 2013, seeking the dissolution of RD. Tillman is
alleged to be a partial owner of RD. On November 25, 2013, RD filed an answer to
complaint along with across-complaint alleging that Plaintiff is liable for breaches of
fiduciary duties, conversion, intentional interference with business/economic relations
and intentional interference with contract. On December 11, 2013, RD filed an
amended cross-complaint, which added a claim for declaratory relief.

Plaintiff argues that, because his dissolution action against RD includes claim for
“Involuntary Dissolution due to Fraud” allegedly by Tillman and “at the company’s
expense,” BPBS should be disqualified. Plaintiff argues that while BPBS supposedly
represents RD in this action, Tillman hired BPBS on RD’s behalf without obtaining
Plaintiff’s consent as a member of RD, such that BPBS cannot properly represent RD.
(Pl.’s Ps & As at 7.) Plaintiff represents that, when he contacted BPBS to inform them
that they were “not authorized to work on behalf of” RD because they lacked “the
approval of a majority of the membership interest.” (Id. at 8.) Plaintiff represents that
BPBS responded that Plaintiff “could not direct them” and essentially that Plaintiff
“could not choose RD’s representation or direct [BPBS] . . . because [Plaintiff] had a
conflict of interest.” (Id.) Plaintiff argues that, given that RD’s two primary members
are Plaintiff and Tillman, BPBS is also effectively representing Tillman individually
while it simultaneously represents RD in this action, and that such “dual
representation” gives rise to a conflict of interest for BPBS and constitutes grounds for
qualification. (Id. at 9-13.) Plaintiff argues that although BPBS presents itself as
counsel for RD, its actions suggest a loyalty to Tillman: RD’s Answer contained
references to pronouns like “he” and “him,” which Plaintiff argues suggests BPBS is
also representing Tillman. (Id. at 11.) Plaintiff argues, BPBS “is representing
[Tillman’s] interests, not RD’s.” (Id.)

RD argues that Tillman hired BPBS on RD’s behalf after Plaintiff “resigned from active
management of” RD, and that Tillman is “the managing member of” RD such that he is
“primarily responsible for deciding how [RD] responds to [Plaintiff’s] complaint.” (Def.’s
Oppo. at 3-4; Declaration of D. Signorotti (“Signorotti Decl.”) ¶¶ 4-5.) RD argues that
“BPBS has never represented [Plaintiff.] BPBS has never represented Tillman.
Tillman is not named as a party in the instant litigation. BPBS represents [RD] alone. .
. “ (Def.’s Oppo. at 3.)

Plaintiff’s motion is DENIED WITHOUT PREJUDICE.

Plaintiff’s cited authorities do not compel disqualification of BPBS at this time. All of
Plaintiff’s cited authorities involve situations where an attorney or law firm undisputedly
represented two or more clients in one case, and here, BPBS only represents one
client: RD. Plaintiff has not shown that BPBS secretly represents Tillman in his
individual capacity, nor has Plaintiff cited authorities allowing such a finding on the
facts and evidence presented.

Plaintiff largely relies on California Rule of Professional Conduct 3-600(E) as grounds
for the requested disqualification. Rule 3-600(E) provides: ”A member representing an
organization may also represent any of its directors, officers, employees, members,
shareholders, or other constituents, subject to the provisions of rule 3-310 . . . .” Here, however, Plaintiff has not shown that BPBS “also represent[s]” Tillman individually – or
any other client – in connection with this case. Contrary to Plaintiff’s argument, that
RD’s Answer included references to “he” and “him” does not prove that BPBS is
actually secretly representing Tillman in this action, and the Court declines to assume
as much. Moreover, BPBS argues that such references were typographical errors,
although counsel’s supporting declaration is silent on this issue. (Def.’s Oppo. at 4
n.2.) Nevertheless, BPBS’s counsel has represented that BPBS does not represent
Tillman, and the Court is inclined to accept such representation by an officer of the
court. (Def.’s Oppo. at 3-4; Signorotti Decl. ¶¶ 4-5.)

Similarly, California Rule of Professional Conduct 3-310(C) provides: “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.” (emphasis added). Again,
however, Plaintiff has not shown that BPBS currently represents “more than one client”
in this matter. Accordingly, Plaintiff’s motion for disqualification is denied.

Plaintiff’s cited authorities all involved undisputed dual representations; none involved
circumstances where an attorney or law firm declares that it represents solely the
defendant business entity, not any of that entity’s principals in their individual
capacities. For instance, the Gong case involved a principal’s involuntary dissolution
action and a law firm’s dual representation of both the closely-held corporation and the
other principal of that corporation (David), who was alleged to have taken corporate
funds for personal uses. (Gong v. RFG Oil, Inc. (2008) 166 Cal.App.4th 209, 215.) It
was undisputed that the firm “simultaneously represent[ed]” both the corporation and
David: “two clients with conflicting interests.” (Id.) While there are similarities between
the facts of Gong and the facts of the instant case, i.e., that RD “can only speak
through” Tillman and that RD filed a cross-complaint against Plaintiff giving rise to
concerns that Tillman “is using [RD] as a pawn in his dispute with” Plaintiff (see id. at
216), there is a significant difference: BPBS does not currently represent Tillman
individually, such that Plaintiff has not shown that BPBS currently has “two clients with
conflicting interests.”

Similarly, Plaintiff relies on the Forrest case, which involved a shareholder derivative
suit and one attorney, McKim, who “simultaneously represent[ed]” two corporations
and two directors who allegedly embezzled corporate funds. (Forrest v. Baeza (1997)
58 Cal.App.4th 72-82.) As in Gong, however, the corporations and the allegedly
embezzling directors were both undisputedly the current clients of McKim. (Id.) The
court granted the requested disqualification, holding that McKim could not
simultaneously represent the directors and the corporations given their conflict of
interest under Rule 3-310 of the Rules of Professional Conduct. (Id. at 73-75.) Here,
Plaintiff has not shown that BPBS “simultaneously represents” any person or entity
other than RD, or has some other relationship giving rise to a conflict of interest for
BPBS.

To the extent Plaintiff argues that BPBS’s representation of RD is allegedly “not
authorized” because RD’s internal procedures were not followed when BPBS was
retained, Plaintiff did not cite authorities on this point. (Pl.’s Ps & As at 10.) Moreover,
such argument is outside the call of Plaintiff’s Notice of Motion, which stated only “dual representation” and “conflict of interest” as the potential bases for disqualification.

(Pl.’s Ps & As at 1-2.) To the extent Plaintiff makes similar arguments, such as those
pertaining to his allegedly being denied access to RD’s general ledger, those issues
are outside the scope of this motion. (Id. at 11.) The Court declines to make “merits”
determinations, as these “should not be determined in the context of a motion to
disqualify counsel.” (Forrest, supra, 58 Cal.App.4th at 75.)

Plaintiff did not name Tillman as a defendant when he filed this lawsuit; the only
current parties to this action are Plaintiff and RD. It remains possible that BPBS could
undertake to represent Tillman as an individual client. However, at present, the Court
takes BPBS at its word that Tillman is not formally or informally a “client” of BPBS. At
present, then, BPBS represents only one client in connection with this case: RD. If this
changes, Plaintiff is free to file an updated request for disqualification. Until then,
however, the Court declines to order disqualification on “a mere hypothetical
conflict.” (See Havasu Lakeshore Investments, LLC v. Fleming (2013) 217
Cal.App.4th 770, 776, 778-9 (“a mere hypothetical conflict is insufficient” for
disqualification).)

Defendant’s request for attorneys’ fees incurred in connection with this motion
pursuant to Code of Civil Procedure §§ 1008 and 128.7 is DENIED, as the Court does
not find that Plaintiff’s Motion to Disqualify is actually a surreptitious Motion for
Reconsideration of Plaintiff’s previously-denied Motion to Strike. Plaintiff’s Motion to
Strike was denied on February 13, 2014, on grounds that it was untimely, not on
grounds necessarily pertaining to disqualification.

The minute order is effective immediately. No formal order pursuant to California Rule
of Court 3.1312 or further notice is required.