Opinion
B304072
05-16-2022
ESTATE OF WLLIAM JOSEPH HELDMAN, Deceased. v. WILLIAM HELDMAN, Objector and Appellant. JOHN HELDMAN, Petitioner and Respondent,
Meir J. Westreich for Objector and Appellant. Gostanian Law Group, Amy L. Gostanian, and Michelle C. Bartolic; Law Office of Jeffrey A. Coleman and Jeffrey A. Coleman for Petitioner and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. BP169099 David J. Cowan, Paul T. Suzuki and Ana Maria Luna, Judges. Affirmed.
Meir J. Westreich for Objector and Appellant.
Gostanian Law Group, Amy L. Gostanian, and Michelle C. Bartolic; Law Office of Jeffrey A. Coleman and Jeffrey A. Coleman for Petitioner and Respondent. 1
FEUER, J.
William and John Heldman are the sons of William Joseph Heldman, who died in 2014. William appeals from probate court orders (1) overruling William's demurrer to John's third amended Probate Code section 850 petition; (2) denying William's motion for a permanent injunction and order to show cause regarding contempt to enforce a partial settlement agreement between William and John; and (3) granting John's motion to disqualify William's counsel, Meir J. Westreich. We conclude the first two orders are nonappealable and dismiss the appeal as to those orders.
We refer to family members by their first names to avoid confusion.
Further undesignated statutory references are to the Probate Code.
The probate court stayed its order disqualifying Westreich for 18 days to allow the parties to stipulate to Westreich's representation of William on appeal.
As to John's disqualification motion, William contends on appeal substantial evidence does not support the probate court's finding there was a substantial relationship between Westreich's representation of John in a 1983 deposition involving real property William Joseph transferred to John and John's allegation in this case that William Joseph transferred property to William. William also contends that although Westreich may be called as a witness in this case about William Joseph's prior property transactions (as William Joseph's longtime lawyer) and Westreich's debt on a promissory note allegedly owed to the estate, disqualification is not supported because William waived any conflict and John failed to show Westreich's dual role would 2 cause detriment to John or the integrity of the judicial process. We agree with both contentions and reverse the probate court's order disqualifying Westreich.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Estate
William Joseph died intestate on September 15, 2014. He had four surviving children: William, John, Diane Waldorf, and Edward (Ed) Heldman. On December 9, 2015 William filed a petition for probate requesting to be appointed administrator of William Joseph's estate. On February 9, 2017 John filed a competing petition for probate to be appointed administrator of the estate.
B. The Partial Settlement Agreement
At the February 28, 2018 hearing on the competing petitions for probate, William and John reached a partial settlement agreement, enforceable under Code of Civil Procedure section 664.6. The probate court recited the terms into the 3 record. William and John agreed John would be appointed special administrator to sell gold coins that belonged to the estate through a designated broker. The broker would distribute the sales proceeds directly to a blocked account. In addition, John, as special administrator, would have authority to enter into an agreement with Yvonne Hines on behalf of the estate. The parties also agreed John "may pursue a petition under Probate Code section 850 against William . . . as an interested person, without objection by William Heldman, to pursue claims on behalf of the estate for recovery of property." At the hearing Westreich informed the court the parties "agreed we would reduce this to a written order."
Code of Civil Procedure section 664.6, subdivision (a), provides, "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement."
Judge David J. Cowan.
Hines was William Joseph's longtime girlfriend. The parties agreed to offer Hines $100,000 from the coin sale proceeds in exchange for her waiver of any claims against the estate.
At an April 19, 2018 hearing, William and John, through their counsel, agreed to entry of an order based on the February 28, 2018 stipulation. Westreich drafted the order, and John's attorney (Amy Gostanian) made interlineations. The probate court signed the order at the hearing (the April 19 order). The order memorialized the partial settlement agreement terms from the February 28, 2018 hearing. Paragraph 5 of the April 19 order states, "On or before April 2, 2018, Petitioner John Heldman in his capacity as an interested party may file a Petition pursuant to Probate Code § 850 against Objector William Heldman without objections as to his standing to file that Petition." 4
Judge Cowan.
On June 5, 2018, the probate court signed and entered a second order after a hearing confirming the stipulation on the record (the June 5 order). The order again recited the terms of the February 29, 2018 partial settlement agreement, including language in paragraph 5 that was almost identical to that in the April 19 order.
Judge Elizabeth A. Lippitt.
C. William's Demurrer to John's Section 850 Petition
On March 29, 2018 John filed his section 850 petition. On September 13, 2019 John filed a third amended petition (following two demurrers and a stipulation for dismissal with leave to amend), naming as respondents William, Adam Heldman (William's son), and Westreich.
The petition alleged that in 1987 William Joseph, who owned a night club, was shot "by an infamous crime family," leaving him "completely blind . . . and completely dependent upon those around him to manage his finances." William Joseph's "checkered past made him wary of holding title to assets in his own name." William Joseph transferred real and personal property to William "with the intent that [William] would constructively hold and manage the property for Decedent and either return it to Decedent at this request or distribute it to Decedent's heirs upon his death, and that [William] was aware of Decedent's intent and consented to carry out his wishes."
The petition alleged William sold an expensive vehicle and house in Long Beach that belonged to William Joseph, but William refused to turn over the sale proceeds to the estate. In 5 addition, bank accounts in the name of William Joseph, William, and other unnamed individuals belonged to the estate, and William failed to turn over to the estate all the valuable coins he held that belonged to William Joseph. Further, William Joseph made a $130,000 loan to Westreich secured by the June 28, 2007 and July 23, 2013 deeds of trust. The petition also alleged the estate had claims to a Las Vegas, Nevada property on which the deed of trust secured a $120,000 note; an oceanfront property in Rosarito, Mexico; two vacant lots in Riverside; a Yorba Linda house in which William resided; and a Las Vegas house in which Diane resided.
As we discuss below, the 2013 deed of trust was for $192,543, which reflected an increase in the amount Westreich owed on the loan.
The petition asserted causes of action against William and Adam for return of estate assets, an accounting, a declaration the described property was held in a resulting trust owned by the estate, and for money had and received. The petition also asserted a cause of action for declaratory relief, which sought "a judicial determination and declaration as to the balance due on the loan memorialized by the 2007 Deed of Trust and the 2013 Deed of Trust, respectively, due to the Decedent."
On November 26, 2019 William and Adam filed a demurrer to the third amended section 850 petition. At the January 9, 2020 hearing on the demurrer, the probate court dismissed Adam with prejudice from the petition pursuant to the parties' stipulation. The court overruled William's demurrer, finding 6 John had sufficiently pleaded facts to support his causes of action.
Judge Paul T. Suzuki presided over the hearings and ruled on William's demurrer and John's motion to disqualify Westreich.
D. John's Motion To Disqualify William's Counsel
On June 27, 2019 John moved to disqualify Westreich as William's attorney. John argued Westreich, as William Joseph's longtime attorney, was "intimately involved in the inner-workings of the Heldman family for approximately 30 years." Further, Westreich previously represented John, Diane, and Ed, thereby obtaining private and privileged information about them. Westreich failed to obtain written consent from the three heirs for his adverse representation of William. In addition, William Joseph loaned $130,000 to Westreich in 2007, and by July 23, 2013 Westreich's debt had increased to $192,543; a deed of trust securing an amended promissory note was recorded on Westreich's house. John argued Westreich violated the State Bar Rules of Professional Conduct by concealing his personal debt to the estate. Further, State Bar Rules of Professional Conduct, rule 3.7 (rule 3.7) required disqualification because Westreich was likely to be a witness based on his knowledge of William Joseph's business transactions as his longtime attorney.
John's attorney, Michelle Bartolic, submitted a supporting declaration in which she declared her office first became aware in May 2019 of Westreich's debt to William Joseph and the deed of trust recorded on Westreich's house. She added that "[a]s of June 26, 2019, a title search of Westreich's home . . . showed no reconveyance had been recorded." She stated on information and belief that Westreich had not made any payments of interest or principal to the estate. 7
John stated in his declaration, "Meir Westreich previously represented me in or about 1983 in relation to a piece of property that my father . . . had purchased then transferred into my name. I believe that he did this in order to hide the asset from potential creditors." John was deposed in connection with the bank loan on the property, and Westreich represented John at the deposition and "held himself out as [John's] attorney in communications with the other parties involved in the dispute." Further, Westreich received confidential information from John during Westreich's representation of him. John never signed a conflict waiver or gave written consent to Westreich's representation of William. John concluded, "[T]he instant action also involves my father transferring certain pieces of real and personal property into the names of others, namely Objector William Heldman, and is substantially similar to the action Meir represented me in."
Diane and Ed also submitted declarations in support of the motion. Diane stated that in December 2014 she met with Westreich and William to discuss her possible appointment as administrator of the estate. Westreich also sent Diane an email on February 27, 2015 advising her of the process for being appointed administrator. Diane declared Westreich "received confidential information from [her] during this time when he was attempting to convince [her] to be administrator." Ed stated Westreich previously represented him in 2005 with respect to a labor claim before the Santa Ana Labor Relations Board. Neither Diane nor Ed signed a conflict waiver or gave written consent to Westreich's representation of William.
On August 2, 2019 William filed a partial response to John's disqualification motion. William argued there was "no apparent showing of any prior confidences at risk in the allege[d] 8 successive representations which outweighs the substantial right to counsel of choice." William averred in his supporting declaration, "On multiple occasions in the past several years, John Heldman has told me that Meir Westreich was paying off a debt via providing legal representation in these legal proceedings, clearly referencing a perceived debt going back to before the passing of Decedent, with a corrupt intent to protract these proceedings against me." William and Westreich each stated in their declarations, "The Secured Westreich Note as Amended . . . has not been altered one iota since the passing of Decedent. Nothing has been paid on it; it bears a ten percent [10%] interest rate; no issue is being asserted as to its authenticity or validity." William stated he was "willing to stipulate in any lawful form that the Westreich Note be part of the Heldman Estate."
William declared, "[T]here is no actual or even potential conflict of interest between myself and Meir J. Westreich, arising from the Note. And even if any were to exist, I waive them and consent to the representation." He added, "There are countless ways in which [Westreich's] longtime familiarity with me and my family, and his decades of loyalty to my father and our family, make him my easy choice as my desired counsel in this situation."
On August 13, 2019 William filed a request for an evidentiary hearing on John's disqualification motion. William argued John failed to prove Westreich represented John at a deposition or represented Edward in a Labor Board proceeding. Further, there were factual issues as to whether representation of Diane and Ed by John's counsel and other issues created a conflict of interest. At an August 15, 2019 hearing, the probate court denied William's request, explaining it did not want to have 9 a mini trial, but instead would decide the motion on the declarations. The court continued the hearing on the disqualification motion to give John an opportunity to file a supplemental declaration with additional facts in response to Westreich's recently-filed declaration.
At the January 9, 2020 hearing on the disqualification motion, the probate court granted the disqualification motion, finding Westreich "might be a witness" because he "might have been involved in these transactions" as William Joseph's attorney. Further, John alleged in his section 850 petition that Westreich owed money to the estate. The court observed, "And there's going to be some further testimony about how much is owed, what was that note about and how much interest. [¶] And I think I just heard Mr. Westreich say there was some allegation that some of the attorney's fees were going to be deducted from the money that [is] owed on the note. [¶] I'm not going to make any judgment on the merits of the case, but there's a lot of allegations that, seem to me, are going to require Mr. Westreich to take the stand and testify on these issues. [¶] And because of that, the court feels that there's a significant conflict of interest of Mr. Westreich to continue to represent-or to be an attorney in this case due to that conflict."
In its written ruling, the court relied on John's declaration in which he stated Westreich represented him in 1983 at a deposition in connection with real property that William Joseph had purchased and transferred to John. Further, John averred that the transfer was designed to hide assets from potential creditors, which was "substantially similar" to the transfers alleged by John in his section 850 petition. The court rejected Westreich's argument there was no evidence to support John's 10 statements, explaining "[i]t is Westreich who has not provided any evidence, such as a declaration to support his argument that he never represented John."
The probate court concluded, "[T]here is a substantial relationship between Westreich's present representation of William and Adam and Westreich's former representation of John in 1983. Access to confidential information is, therefore, presumed and disqualification is mandatory." The court also found rule 3.7 (requiring disqualification of an attorney who serves as both an advocate and witness under specified circumstances) supported disqualification because Westreich could be a witness based on the balance due on William Joseph's loan to Westreich as memorialized in the deeds of trust. In addition, Westreich's testimony as to the 1983 transfer would be probative as to John's claims that Westreich was involved in transactions involving William Joseph and William to avoid creditors. The court explained, "Although John's transaction is fairly old, it is relevant to show decedent's intent, plan, modus operandi, custom, etc. in structuring transactions between decedent and his sons."
E. William's Motion To Enforce the Partial Settlement Agreement
On April 6, 2020 William filed an amended motion for injunctions and/or order to show cause regarding contempt to enforce the February 28, 2018 partial settlement agreement. William argued John's filing of the section 850 petition violated the partial settlement agreement. He sought an injunction requiring John to dismiss his section 850 petition or each claim to property for which title was in the name of someone other than 11 William Joseph, and enjoining John from conducting discovery. William also sought an order to show cause why John should not be in contempt for failing to comply with the partial settlement agreement and the April 19 and June 5 orders. Specifically, William sought an order to show cause "to compel, by mandatory and prohibitory permanent injunctions and civil contempt, Petitioner John Heldman to cease proceedings stayed or deferred under the Partial Settlement Agreement unless and until . . . (a) John Heldman has filed [a section] 850 Petition that survives as complying with all pleading rules and pleading orders and stipulations previously filed herein and (b) the John Heldman 850 Petition has been scrutinized under applicable statutes of limitations . . . ."
Westreich argued at the August 10, 2020 hearing that the partial settlement agreement was what was placed on the record by the parties on February 28, 2018, not by the April 19 order, and under the partial settlement agreement, William gave up his claim to some of the gold coins for a "chance to have the statute of limitations addressed on each individual allegation and claim." In response to William's objection to litigation of 30-year-old claims, the probate court stated the case management order would limit discovery "to those assets acquired or obligations incurred by the decedent for the period September 15, 2009, through and including September 15, 2014." The court denied William's motion, finding "the prior orders of the court regarding demurrers and motions to strike have allowed John Heldman to pursue paragraph 5 of the order on stipulation signed by Judge 12 Cowan. That was the order that was filed." On October 26, 2020 the court signed an order denying the motion.
Judge Ana Maria Luna.
DISCUSSION
A. The Order Overruling the Demurrer Is Not Appealable
John contends William's appeal from the probate court's order overruling the demurrer is not appealable. John is correct.
"'The existence of an appealable judgment is a jurisdictional prerequisite to an appeal.'" (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 21; accord, Jennings v. Maralle (1994) 8 Cal.4th 121, 126.) "'California is governed by the "one final judgment" rule which provides "interlocutory or interim orders are not appealable, but are only 'reviewable on appeal' from the final judgment." [Citation.] The rule was designed to prevent piecemeal dispositions and costly multiple appeals which burden the court and impede the judicial process. [Citation.] In keeping with this rule, [Code of Civil Procedure] section 904.1 generally authorizes appeals from superior court judgments, except those which are interlocutory.' [Citation.] Interlocutory rulings '"within the statutory classes of appealable interlocutory judgments"' remain appealable; however, the appellant bears the burden of establishing the appealability of such a ruling." (Brown v. Upside Gading, LP (2019) 42 Cal.App.5th 140, 144; accord, Wilson v. County of San Joaquin (2019) 38 Cal.App.5th 1, 7.)
An appeal may be taken "[f]rom an order made appealable by the Probate Code." (Code Civ. Pro., § 904.1(a)(10).) Under Probate Code section 1300, subdivision (k), "an appeal may be taken from the making of, or the refusal to make," an order 13 "[a]djudicating the merits of a claim" made under section 850. However, "'[a]n order overruling a demurrer is not directly appealable, but may be reviewed on appeal from the final judgment.'" (Apple Inc v. Superior Court (2017) 18 Cal.App.5th 222, 238-239; accord, Crenshaw Subway Coalition v. City of Los Angeles (2022) 75 Cal.App.5th 917, 927; Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182.) Because the probate court in overruling William's demurer did not adjudicate the merits of John's section 850 petition and there is no final judgment, the order overruling the demurrer is not appealable.
B. The Order Denying William's Motion for an Injunction and Order To Show Cause for Contempt To Enforce the Partial Settlement Agreement Is Not Appealable
John contends the probate court's order denying William's motion for mandatory and prohibitory permanent injunctions and civil contempt to enforce the partial settlement agreement is not appealable. John is again correct.
The order denying William's motion to enforce the partial settlement agreement is not appealable because the probate court has not entered a final judgment. (Walton v. Mueller (2009) 180 Cal.App.4th 161, 167 ["Ordinarily, an order denying a motion to enforce a settlement in pending litigation under [Code of Civil Procedure] section 664.6 is not appealable, as judgment has not yet been entered and there are accordingly issues left in the trial court for consideration."]; see Doran v. Magan (1999) 76 Cal.App.4th 1287, 1294 ["order denying [appellant's] motion for judgment under [Code of Civil Procedure] section 664.6 is nonappealable"].) 14
To the extent John sought to enforce the settlement agreement by issuance of a permanent injunction, the order denying relief is likewise not appealable because a final judgment was not entered. "An order refusing to grant a permanent injunction is not appealable unless and until it is embodied in a final judgment." (Bishop Creek Lodge v. Scira (2000) 82 Cal.App.4th 631, 633; accord, Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 650 ["order denying appellants permanent injunctive relief is not properly reviewable" because the merits of the litigation have not been determined].) As the Bishop Creek court explained, "The appropriate rationale is that a trial court may revisit its decision to deny a permanent injunction at any time until final judgment." (Bishop Creek, at p. 634.) "Thus, the interlocutory denial of a permanent injunction is not a sufficiently definitive 'order refusing to grant an injunction' within the meaning of Code of Civil Procedure section 904.1, subdivision (a)(6)." (Ibid.)
Likewise, the probate court's denial of William's request for an order to show cause regarding contempt is not appealable. "It is well settled that orders and judgments made in cases of contempt are not appealable, and this rule has been held applicable both where the trial court imposed punishment for contempt and where the alleged contemner was discharged." (John Breuner Co. v. Bryant (1951) 36 Cal.2d 877, 878; accord, In re Buckley (1973) 10 Cal.3d 237, 259 ["an order made in a contempt proceeding is not appealable"]; Wanke, Industrial, Commercial, Residential, Inc. v. Keck (2012) 209 Cal.App.4th 1151, 1162, fn. 11 ["An order discharging an OSC for contempt is not appealable."]; see Code Civ. Pro., § 1222 ["The judgment and 15 orders of the court or judge, made in cases of contempt, are final and conclusive."].)
C. The Probate Court Abused Its Discretion in Granting John's Attorney Disqualification Motion
William contends John impliedly waived his right to seek disqualification of Westreich because John did not make his motion until 28 months after Westreich made his first appearance as William's attorney. "'[A]ttorney disqualification can be impliedly waived by failing to bring the motion in a timely manner.'" (Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465, 490; accord, Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 845.) William forfeited this issue by failing to raise it in the probate court. (People v. Flinner (2020) 10 Cal.5th 686, 708 [defendant forfeited claim of prosecutorial bias by failing to move to disqualify prosecutor in trial court]; Family Health Centers of San Diego v. State Dept. of Health Care Services (2021) 71 Cal.App.5th 88, 98 ["'"'[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.'"'"]; Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 357 ["To the extent [appellant] suggests the subpoena was overbroad, he has forfeited this argument by failing to raise it below."].) However, as we discuss below, John's failure to move to disqualify Westreich for 28 months after Westreich made his first appearance is relevant to show whether the motion was filed to gain a tactical advantage, instead of to protect against the disclosure of confidential information.
1. Attorney disqualification principles
"The authority of a trial court 'to disqualify an attorney derives from the power inherent in every court "[t]o control in 16 furtherance of justice, the conduct of its ministerial officers."'" (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846 (Cobra Solutions); accord, People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) "[A] disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion." (SpeeDee Oil, at p. 1145; accord, Jarvis v. Jarvis (2019) 33 Cal.App.5th 113, 140.) "'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.] As we have explained, however, '[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.'" (Cobra Solutions, at p. 846; accord, SpeeDee Oil, at p. 1145.)
2. Standard of review
"Generally, a trial court's decision to disqualify an attorney is subject to review for an abuse of discretion." (People v. Suff (2014) 58 Cal.4th 1013, 1038; accord, In re Charlisse C. (2008) 45 Cal.4th 145, 159 (Charlisse C.).) "As to disputed factual issues, a reviewing court's role is simply to determine whether substantial evidence supports the trial court's findings of fact; 'the reviewing court should not substitute its judgment for . . . express or implied [factual] findings [that are] supported by substantial evidence.'" (Charlisse C., at p. 159; accord, Capra v. Capra (2020) 58 Cal.App.5th 1072, 1092 ["Credibility, even when based upon conflicting declarations, is determined by the 17 trial court."].) "As to the trial court's conclusions of law, however, review is de novo; a disposition that rests on an error of law constitutes an abuse of discretion." (Charlisse C., at p. 159; accord, O'Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1124.) "The trial court's 'application of the law to the facts is reversible only if arbitrary and capricious.'" (Charlisse C., at p. 159; accord, Doe v. Yim (2020) 55 Cal.App.5th 573, 581 (Yim).)
3. The probate court's finding of disqualification based on Westreich's successive representation of John and William was not supported by substantial evidence
Rule 1.9(a) of the State Bar Rules of Professional Conduct provides, "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed written consent." William contends the probate court abused its discretion because Westreich's representation of John in 1983 did not involve matters that were substantially related to Westreich's representation of William in this matter. We agree John failed to show the two matters are substantially related.
"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. Thus, where a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client, the governing test requires that the client demonstrate a 'substantial relationship' between the 18 subjects of the antecedent and current representations." (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283 (Flatt); accord, Charlisse C., supra, 45 Cal.4th at p. 161.) "The 'substantial relationship' test mediates between two interests that are in tension in such a context-the freedom of the subsequent client to counsel of choice, on the one hand, and the interest of the former client in ensuring the permanent confidentiality of matters disclosed to the attorney in the course of the prior representation, on the other." (Flatt, at p. 283; accord, Cobra Solutions, supra, 38 Cal.4th at p. 846.)
"To determine whether there is a substantial relationship between successive representations, a court must first determine whether 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. [Citation.] If the former representation involved such a direct relationship with the client, the former client need not prove that the attorney possesses actual confidential information." (Cobra Solutions, supra, 38 Cal.4th at p. 847; accord, Flatt, supra, 9 Cal.4th at p. 283; see Fiduciary Trust Internat. of California v. Superior Court, supra, 218 Cal.App.4th 465, 480 ["'[S]uccessive representations will be "substantially related" when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.'"].) 19
The probate court relied on John's declaration in which he stated that in 1983 Westreich represented him "in relation to a piece of real property that [William Joseph] had purchased then transferred into [John's] name," and further, John believed William Joseph "did this in order to hide the asset from potential creditors." John averred Westreich represented him at a deposition that was taken due to problems with the bank loan for the property. John never signed a conflict waiver or give written consent to Westreich's representation of William.
Contrary to the probate court's finding, John's declaration does not provide substantial evidence of "a 'substantial relationship' between the subjects of the antecedent and current representations." (Flatt, supra, 9 Cal.4th at p. 283; see Charlisse C., supra, 45 Cal.4th at p. 161.) In his declaration, John does not provide details about the 1983 litigation other than stating it related to real property purchased by William Joseph. John does not describe the circumstances of the transfer of property, the nature of the legal issues involved in the litigation, or whether John was a named party. It appears Westreich at most represented John at his deposition, which John described as involving a bank loan on the property. At the hearing on the motion, Bartolic explained John "has a belief or a memory that Mr. Westreich showed up and defended him in a deposition, to which he was not a party to the lawsuit." 20
At the hearing Westreich adamantly denied ever representing John in the litigation, stating John and the bank sued William Joseph; Westreich represented William Joseph; and John and the bank had their own counsel.
Even assuming William Joseph sometime before 1983 transferred real property to John to hide assets from potential creditors (as to which Westreich represented John at a deposition), and William Joseph subsequently transferred other property to William, as alleged by John in his section 850 petition, this is not sufficient to show there is a substantial relationship between the prior and current representations. Therefore, substantial evidence does not support the probate court's finding that Westreich obtained confidential information from John "'material to the evaluation, prosecution, settlement or accomplishment of the current representation.'" (Fiduciary Trust Internat. of California v. Superior Court, supra, 218 Cal.App.4th at p. 480; see Jensen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 713.)
It may well be that in the course of discovery John will obtain additional information showing that Westreich represented John or other family members on matters with a substantial relationship to the subject of Westreich's current representation of William that could form the basis of a subsequent motion to disqualify Westreich as counsel. But John has not presented sufficient evidence of a substantial relationship in this motion.
4. The probate court's finding of disqualification based on the advocate-witness rule was not supported by substantial evidence
"'The "advocate-witness rule," which prohibits an attorney from acting both as an advocate and a witness in the same proceeding, has long been a tenet of ethics in the American legal system, and traces its roots back to Roman Law.'" (Yim, supra, 21 55 Cal.App.5th at p. 581; accord, Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1208.) Rule 3.7(a) provides, "A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: [¶] (1) the lawyer's testimony relates to an uncontested issue or matter; [¶] (2) the lawyer's testimony relates to the nature and value of legal services rendered in the case; or [¶] (3) the lawyer has obtained informed written consent from the client." (Asterisk omitted; see Maxwell v. Superior Court (1982) 30 Cal.3d 606, 619, fn. 9 (italics omitted) ["the State Bar has concluded that a fully informed client's right to chosen counsel outweighs potential conflict or threat to trial integrity posed by counsel's appearance as witness"], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
It is undisputed that William provided written consent for Westreich to serve as his attorney, stating as to any conflicts of interest, "I waive them and consent to the representation." But there is an exception to the informed-consent exception. As the Yim court observed, "A comment to the rule clarifies that the informed-consent exception is not absolute: 'Notwithstanding a client's informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or the opposing party from being 22 prejudiced.'" (Yim, supra, 55 Cal.App.5th at pp. 581-582; see Lyle v. Superior Court (1981) 122 Cal.App.3d 470, 482.) "In other words, a court retains discretion to disqualify a likely advocate-witness as counsel, notwithstanding client consent, where there is 'a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.'" (Yim, at p. 582; accord, Wu v. O'Gara Coach Co., LLC (2019) 38 Cal.App.5th 1069, 1085; Lyle, at p. 482 ["if a party is willing to accept less effective counsel because of the attorney's testifying, neither his opponent nor the trial court should be able to deny this choice to the party without a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process"].)
The Yim court explained as to the concern the trier of fact would be misled, "California courts have agreed that one purpose of the advocate-witness rule is to prevent fact finder confusion regarding whether an advocate-witness's statement is to be considered proof or argument. [Citations.] They have identified another, related purpose of avoiding the risk of 'the juror's tying [counsel's] persuasiveness as an advocate to his credibility as a witness.'" (Yim, supra, 55 Cal.App.5th at p. 582.) Here, factfinder confusion is not a concern because John's section 850 petition will be tried by the probate court, which is not likely to be confused by Westreich's dual roles. (See Estate of Beach (1975) 15 Cal.3d 623, 642 ["There is no right to a jury in probate proceedings unless that right is granted by statute."]; Estate of Phelps (1990) 223 Cal.App.3d 332, 336 [same]; see § 825 ["Except as otherwise expressly provided in this code, there is no right to a jury trial in proceedings under this code."].)
John argued in his motion and the probate court found Westreich was a material witness concerning Westreich's debt to William Joseph based on the promissory note. Further, Westreich was likely to testify at trial about William Joseph's transfer of property and his business interests to John, William, and others because Westreich was involved in those transactions as William Joseph's longtime attorney. Substantial evidence 23 supports the probate court's findings because, as Westreich acknowledged at the hearing, there was a dispute whether the promissory note had been paid off. And as to William Joseph's business dealings, John alleged in his section 850 petition that William Joseph had a practice of transferring his property to his children, and it is undisputed that Westreich was William Joseph's attorney during this period.
However, John did not argue or present evidence in his motion that he would be prejudiced or the integrity of the judicial process would be harmed by Westreich acting as both an advocate and a witness. Likewise, the probate court did not make any findings at the hearing or in its written order as to whether John had shown detriment to himself or the integrity of the judicial process. To the contrary, the court impliedly found 24 that once John showed that Westreich would be a witness in the probate proceedings, that was sufficient to disqualify Westreich based on the advocate-witness rule. It was not. John therefore did not meet his burden to make a "'convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.'" (Yim, supra, 55 Cal.App.5th at p. 582.) Accordingly, the exception for client consent under rule 3.7(a)(3) applies, and the probate court abused its discretion in granting John's attorney disqualification motion based on the advocate-witness rule. 25
We note as to the loan to Westreich, John and William were entitled to an equal share of the proceeds of any debt payment by Westreich to the estate. Thus, John would not be able to show he would suffer detriment from Westreich favoring William. With respect to properties and business interests, the section 850 petition alleged the estate had a claim to William's residence, but most properties and businesses were held by others, including Diane, and as to these properties, John and William had the same interest. John did not provide sufficient evidence to evaluate whether he would suffer detriment from Westreich testifying on this issue. The probate court also failed to make findings on the record regarding "'the possibility [opposing] counsel is using the motion to disqualify for purely tactical reasons'" and "'the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.'" (Yim, supra, 55 Cal.App.5th at pp. 583-584; accord, Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 580-581.) Westreich argued at the hearing on the disqualification motion that the motion was filed "as a way to derail" William's repeated demurrers to the section 850 petition. Westreich also asserted it would be expensive for William to hire a new attorney who would have to become familiar with the history of the case, whereas Westreich was up to speed with a long history with William Joseph. The court never addressed these arguments in its findings.
DISPOSITION
The attorney disqualification order is reversed. William's appeal from the orders overruling his demurrer and for an injunction and order to show cause for contempt are dismissed. The parties are to bear their own costs.
We concur: PERLUSS, P. J., SEGAL, J. 26