Opinion
F078887
02-19-2020
In re the Marriage of GREGORY J. and LORI SMITH. GREGORY J. SMITH, Appellant, v. LORI SMITH, Respondent.
McCormick, Barstow, Sheppard, Wayte & Carruth, Scott M. Reddie and Daniel L. Wainwright for Appellant. Moskovitz Appellate Team and Myron Moskovitz for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CEFL04963)
OPINION
APPEAL from an order of the Superior Court of Fresno County. D. Tyler Tharpe, Judge. McCormick, Barstow, Sheppard, Wayte & Carruth, Scott M. Reddie and Daniel L. Wainwright for Appellant. Moskovitz Appellate Team and Myron Moskovitz for Respondent.
-ooOoo-
In this marital dissolution proceeding, the wife moved to disqualify the husband's attorney based on wife's one-hour preliminary consultation with the attorney in 2005 and wife's submission of a confidential intake form to the attorney's administrative personnel in 2017, shortly before wife was told the attorney was representing her husband. The trial court determined (1) wife and attorney had a direct, personal relationship in which confidential information was exchanged and (2) a substantial relationship existed between the attorney's prior representation of wife in connection with husband's threats of divorce and the attorney's current representation of husband in the marital dissolution proceeding. Based on these determinations, the court granted the disqualification motion.
Initially, we conclude the trial court's written decision correctly set forth the principles of law applicable to the disqualification of an attorney involved in successive representations where the prior representation was personal and direct. We reject husband's contention that the proper test in this context is whether any confidential information provided to the attorney will have a "genuine likelihood" of affecting the outcome of the current proceeding.
Husband's arguments focus on the trial court's application of the substantial relationship test, which gave rise to a presumption that material confidential information was acquired. Husband does not address the court's more fundamental finding that the attorney actually acquired material confidential information and this acquisition justified disqualification. We conclude the trial court's implied finding that the confidential information actually acquired was material to the attorney's representation of husband is supported by substantial evidence and, thus, provides one ground for affirming the disqualification order.
Alternatively, we conclude the trial court followed the correct principles of law in analyzing whether a substantial relationship existed between the attorney's prior representation of wife and the attorney's current representation of husband in this divorce proceeding. In concluding a substantial relationship existed between the two representations, the court weighed many, sometimes conflicting, factors. Although the trial court could have exercised its discretionary authority differently, its conclusion to disqualify the attorney was not arbitrary or capricious—that is, the decision did not exceed the bounds of reason.
We therefore affirm the order disqualifying the attorney.
FACTS
Appellant Gregory J. Smith and respondent Lori Smith were married on June 28, 2001, and separated on March 8, 2016. Gregory and Lori have one child, a son born in 2002. By the time remittitur is issued in this appeal, their son will be 18 years old.
Gregory was born in 1960, graduated from the McGeorge School of Law in 1986, and was admitted to the California bar in 1986. Since 1988, his practice of law has focused on employment law. Lori was licensed by the state Board of Barbering and Cosmetology as an esthetician. Prior to and during the marriage, Lori has run a business, Visual Changes Skin Care International, Inc. Lori also home schooled their son.
Lori's Contact with Donovan
In 2005, Lori met with Katherine E. Donovan, a certified family law attorney who has been practicing in the Fresno area since 1989, to seek advice relating to Gregory's threats to divorce her. Donovan took notes of the meeting. In initial face-to-face meetings with a prospective client, it was Donovan's custom at the time to provide a general description of the dissolution process and the subject matter pertinent to a dissolution proceeding (property division, child support, spousal support, child custody and visitation, and attorney fees), give out and describe blank forms, and set forth an overview of relevant law. Donovan states she has absolutely no recollection of what might have been communicated during the meeting, but does not dispute that Lori may have disclosed a great deal of information to her and that she may have provided Lori advice.
The trial court's decision states the "notes have been secluded and not reviewed by the court." The court cited DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653, 666 for the principle that "materials protected by the attorney-client privilege may not be ordered for in camera review."
The trial court found Lori paid Donovan for the services Donovan provided at the 2005 meeting, "which included advice relative to the issues regarding her marriage to Greg which issues are not before this court. Lori acted on that advice." Donovan told Lori that if Gregory filed for a divorce or if Lori needed her for something else, Donovan would represent her.
In early March 2017, after Gregory made a renewed threat of divorce, Lori telephoned Donovan's office to schedule another appointment relative to her marriage to Gregory. Lori told Donovan's staff that she had previously met with Donovan regarding her marriage to Gregory and that Donovan's advice had been helpful. Lori also said her file might be under the name "Lori Pope-Smith" or "Lori Smith."
On March 15, 2017, Rhea Arbogast, Donovan's office manager, sent Lori an email about "Potential New Client Intake Form." The first paragraph of the email stated in part: "This form is completely confidential and will not be shared, copied, displayed or otherwise made available for viewing to anyone other than those employed with this office. Once our office receives the completed form, it will be submitted to Ms. Donovan for review and we will contact you to inform you whether or not Ms. Donovan will be available to meet with you for a consultation." The form sought basic information about names, addresses, phone numbers, occupations, monthly or annual income, former spouses, whether proceedings had been started, children, property, businesses, and homes. The last question on the form stated: "Please describe the present situation with your spouse in five to ten sentences."
Lori completed the form and emailed it to Arbogast. A redacted copy of Lori's email, with some of her answers to the form's questions blacked out, is part of the appellate record as an exhibit to one of Lori's declarations. The form asked for a five to ten sentence description of the present situation. Lori's emailed response provided 14 lines of information. In addition, Lori's responses stated Lori had met with Donovan "a few years ago" regarding her marriage to Gregory and the advice previously received from Donovan was meaningful. Arbogast ran a conflict check of the firm's emails, Outlook calendar, timeslips, and receipt books and found no record of a previous consultation with Lori. Due to a change in the firm's computer systems, its Outlook records went back to February 1, 2009, and, consequently, Arbogast's review of those records did not find the 2005 consultation.
The reference to a "few" years to describe a meeting 12 years earlier was not particularly accurate. The adjective "few" means "[a]mounting to or consisting of a small number" or "more than one but indefinitely small in number." (American Heritage Dict. (4th ed. 2006) 654.) In comparison, "several" is defined as "[b]eing of a number more than two or three but not many." (Id. at p. 1594.)
Arbogast's declaration did not describe how the conflict of interest check conducted for Lori failed to reveal Donovan's existing relationship with Gregory. As to the conflict of interest check that would have been conducted when Gregory contacted Donovan, it can be inferred that inquiry did not identify the prior contact with his spouse because that check did not include a review of the paper records from 2005, which were stored in a warehouse.
On March 16, 2017, Arbogast emailed Lori to confirm receipt and stated she "printed it for Ms. Donovan's review. Please be advised that she is currently on vacation until next week, and once she returns it will take 1-2 days for her to get back to me regarding the form."
Donovan's staff scheduled Lori for an appointment on April 4, 2017. On that day, Lori arrived for her appointment and waited in the lobby. Donovan and Gregory had a meeting the same day, and when Donovan was walking Gregory out to the lobby, they saw Lori.
Gregory's Initial Contact with Donovan
In July 2016, Gregory first met with Donovan. Gregory and Donovan agreed that when Gregory was ready to file for divorce against Lori, all he had to do was call Donovan's office and a petition would be prepared. Gregory contacted Donovan's office on March 8, 2017, and asked that divorce proceedings be initiated. A meeting was initially scheduled for March 22, 2017, but later was rescheduled for April 4, 2017, the same day Lori was scheduled to meet with Donovan. During the meeting, Gregory asked Donovan to proceed with filing the petition for divorce and Donovan agreed to proceed.
When Donovan and Gregory saw Lori waiting in the lobby, Donovan learned Lori was Gregory's spouse and had been scheduled for an appointment; Donovan was apologetic and embarrassed. During the exchange in the lobby, Lori told Donovan they had met previously and had discussed Lori's marriage to Gregory. Donovan apologized for the mistake in scheduling and told Lori she did not recognize Lori, had no recollection of having met her, and could not represent Lori because she already represented Gregory. Later that day, Donovan and Gregory spoke, and Donovan expressed her belief that no conflict existed if she continued to represent Gregory, but it might be best to avoid starting the divorce proceeding with a dispute over an attorney conflict of interest. Donovan and Gregory agreed he would look for other representation.
Gregory's Subsequent Representation
Gregory contacted many attorneys. The record contains declarations addressing whether Lori went "attorney shopping" in an attempt to hinder Gregory's ability to retain experienced counsel. Ultimately, Gregory retained Jerry Casheros, a certified family law specialist. In March 2018, Gregory and Casheros parted ways. Activity in the case gave Gregory a sense of urgency and he gravitated back to Donovan. Once Donovan substituted into the case, the attorney representing Lori raised the issue of a conflict of interest between Donovan's representation of Gregory and her prior involvement with Lori.
PROCEEDINGS
On August 22, 2017, Casheros filed a petition for nullity of marriage on behalf of Gregory. The petition alleged the marriage was voidable on grounds of fraud and requested legal and physical custody of their son.
In March 2018, Gregory filed a substitution of attorney form stating Donovan was replacing Casheros as Gregory's attorney in the proceeding. In April 2018, after an exchange of letters between counsel for Lori and Donovan about Donovan's potential conflict of interest, Lori filed a motion to disqualify Donovan from acting as Gregory's attorney. Later, Lori filed a declaration of an attorney certified as a legal malpractice specialist who stated the opinion that Donovan had a disqualifying conflict of interest.
In July 2018, Gregory filed an opposition to Lori's request to disqualify Donovan. Gregory supported his opposition with (1) his own declaration, (2) a declaration from William T. Thornhill, an attorney who stated Lori called his office in April 2018 asking for an appointment for a consultation, (3) a declaration from Donovan, and (4) a declaration from Arbogast, Donovan's office manager.
In August 2018, Lori filed reply declarations, an objection to Gregory's request to present live testimony, and objections to evidence submitted with Gregory's opposition. Lori submitted four declarations by her responding to the four declarations submitted with Gregory's opposition. However, her declarations responding to Gregory's and Donovan's declarations were not signed under penalty of perjury. (See Code Civ. Proc., § 2015.5 [declaration under penalty of perjury].) Lori also submitted a supplemental declaration from her expert, an attorney certified as a legal malpractice specialist.
Later in August, two hearings were held to address scheduling and Lori's objection to the presentation of live testimony. The trial court granted Gregory's request for an evidentiary hearing. Estimates of the length of the evidentiary hearing and argument on the motion to disqualify were from two to four days.
In October 2018, the parties filed trial briefs. Gregory filed a motion in limine requesting the court to exclude the testimony of Lori's expert witness. Lori filed motions in limine (1) to prevent Donovan from calling Lori as a witness and asking her questions and (2) to exclude declarations of Donovan and her employees.
On February 5, 2019, the trial court held a hearing on the motion to disqualify Donovan. The court began by ruling on the motions in limine. The court granted Lori's motion to prevent Donovan and her employees from testifying at the hearing and denied Lori's motion to exclude the declarations filed by Donovan and her employees. The court granted Lori's motion to prevent Donovan from examining her and Lori's motion to prevent the use of information disclosed to Donovan in 2005. The court also denied Gregory's motion regarding the testimony of the legal malpractice specialist.
The trial court also ruled on the written evidentiary objections submitted by the parties. The court overruled Gregory's objections, which were not in proper format. The court went through the 53 numbered objections submitted by Lori, sustaining some and overruling others. The court bifurcated the issue of attorney fees from the disqualification motion and denied Donovan's request for a directed verdict on the question of her disqualification. Gregory was the only witness who testified at the hearing.
On February 8, 2019, the trial court filed its written ruling granting the request to disqualify Donovan. The court addressed the nature of Donovan's involvement with Lori by finding there was an attorney-client relationship between Lori and Donovan dating back to approximately 2005. In addition, the court found Donovan was personally involved in providing legal advice to Lori and the involvement, though brief, was direct and personal rather than peripheral or attenuated. Based on Donovan's relationship with Lori and Donovan's current representation of Gregory, the court determined the case involved successive representation of clients (Lori then Gregory) whose interests were patently adverse. The court then quoted the following principle from a decision published by this court:
"'In successive representation cases, a party may obtain the disqualification of an attorney by establishing that the targeted attorney (1) has actual knowledge of material confidential information or (2) is presumed to have acquired confidential information because of the relationship between the
prior representation and the current representation.' (Faughn v. Perez (2006) 145 Cal.App.4th 592, 603, italics added, ('Faughn').)"
The trial court then found "Donovan received confidential information from Lori during the course of their first meeting [in 2005] as well as during the course of their more recent follow up interaction when Lori filled out and returned to Donovan's office a form which included a somewhat lengthy description by Lori of her present situation with Gregory. Disqualification is warranted under the first prong of Faughn."
As a separate and alternative basis for granting Lori's motion to disqualify Donovan, the trial court addressed the second prong of Faughn, which uses the "substantial relationship" test to determine if the acquisition of confidential information is presumed. The court set forth quotes from many cases discussing the application of the substantial relationship test and then determined the legal and factual issues related to Donovan's prior involvement with Lori and Donovan's representation of Gregory in the divorce proceeding, "though not precisely the same, are substantially related." Based on these determinations, the trial court granted Lori's motion to disqualify Donovan and directed Donovan not to divulge any information she obtained from Lori to any person, including Gregory and any attorney subsequently representing Gregory.
Gregory timely filed this appeal. An order granting a motion to disqualify counsel is appealable. (Faughn, supra, 145 Cal.App.4th at p. 600.)
Lori's Lawsuit Against Donovan
On March 19, 2019, after this appeal was filed, Lori filed a complaint for damages against Donovan in Fresno Superior Court, which assigned the matter case No. 19CECG00987. Lori alleged an attorney-client relationship had been formed between herself and Donovan and, as a result of that relationship, Donovan owed her "a fiduciary duty of the highest order." Lori alleged Donovan breached that fiduciary duty when, without Lori's consent, Donovan began representing Gregory in the divorce proceeding.
On April 16, 2019, Lori submitted to the superior court a request for dismissal of the complaint against Donovan. The request stated the action was subject to a tolling agreement and the dismissal was without prejudice. A deputy clerk of the court entered the dismissal the day it was submitted. This court granted Gregory's request for judicial notice of the complaint and the request for dismissal.
DISCUSSION
I. Basic Legal Principles
A. Standard of Review
Generally, a trial court's decision on a motion to disqualify an attorney is reviewed for abuse of discretion. (In re Charlisse C. (2008) 45 Cal.4th 145, 159 (Charlisse); People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 (SpeeDee Oil).) "The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711 (Haraguchi).)
First, with respect to questions of fact, the abuse of discretion standard does not allow trial courts to make express or implied factual findings without sufficient evidentiary support. (County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 316 (T.C.E.F.).) When an appellant challenges the trial court's resolution of "disputed factual issues, a reviewing court's role is simply to determine whether substantial evidence supports the trial court's findings of fact." (Charlisse, supra, 45 Cal.4th at p. 159.) In other words, "the reviewing court should not substitute its judgment for the trial court's express or implied findings supported by substantial evidence." (SpeeDee Oil, supra, 20 Cal.4th at p. 1143.) Under the doctrine of implied findings, an appellate court must presume that, where the record is silent, the trial court considered all of the relevant factors and made all of the factual findings necessary to support its decision for which there is substantial evidence. (Brewer v. Carter (2013) 218 Cal.App.4th 1312, 1320.)
Second, with respect to legal questions, the reviewing court conducts an independent review, without deference to the trial court's conclusion. (Charlisse, supra, 45 Cal.4th at p. 159 [de novo review of conclusions of law].) Thus, "the trial court's discretion is limited by the applicable legal principles." (SpeeDee Oil, supra, 20 Cal.4th at p. 1144.) For instance, a trial court commits legal error and thus abuses its discretion when it selects and applies the wrong rule of law to the circumstances presented. (T.C.E.F., supra, 246 Cal.App.4th at p. 316; see Rosenfeld Construction Co. v. Superior Court (1991) 235 Cal.App.3d 566, 576-577 [order denying motion for disqualification vacated; on remand, trial court directed to apply the appropriate standard to determine if there existed a substantial relationship between the prior representation and the current representation].)
Third, when the applicable rule of law grants the trial court discretion and requires it to weigh various factors in making a determination, "[t]he trial court's 'application of the law to the facts is reversible only if arbitrary and capricious.'" (Charlisse, supra, 45 Cal.4th at p. 159.) Stated another way, the results of the trial court's "weighing process generally will be upheld on appeal so long as the trial court did not exceed the bounds of reason." (T.C.E.F., supra, 246 Cal.App.4th at p. 316; see Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1089 [abuse of discretion standard measures whether, given the established evidence, the trial court's decision falls within the permissible range of options set forth by the applicable legal criteria].)
B. Overview of Attorney Disqualification Motions
1. General Principles
As a general ethical principle, attorneys are prohibited from representing clients with adverse interests. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 282 (Flatt).) When attorney-client conflicts of interest arise in civil litigation, the affected litigant may move to disqualify the attorney from representing the other party.
A motion to disqualify the opposing party's attorney for an alleged conflict of interest implicates several important interests. (SpeeDee Oil, supra, 20 Cal.4th at p. 1144.) Trial courts must examine disqualification motions "carefully to ensure that literalism does not deny the parties substantial justice." (Ibid.) Depending on the circumstance, the trial court's examination might "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." (Id. at p. 1145.) Furthermore, "determining whether a conflict of interest requires disqualification involves more than just the interests of the parties." (Ibid.)
"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.' (Code Civ. Proc., § 128, subd. (a)(5); [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." (SpeeDee Oil, supra, at p. 1145.)
The restrictions on an attorney's ability to represent clients with interests that are potentially or actually adverse are designed to protect two distinct values: to assure the attorney represents his or her client with undivided loyalty, and to assure the attorney will preserve confidential information conveyed by the client to the attorney. (Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 427; accord, Flatt, supra, 9 Cal.4th at pp. 282-284.)
The values of loyalty and confidentiality can be undermined when the attorney undertakes simultaneously to represent clients with potentially or actually adverse interests. (Antelope Valley Groundwater Cases (2018) 30 Cal.App.5th 602, 616.) In contrast, the interest in confidentiality usually is the only interest implicated when the attorney seeks to represent a new client whose interests are potentially or actually adverse to the interests of a former client. (Ibid.) Consequently, the courts have segregated the two separate interests and formulated distinct tests to determine the circumstances under which disqualification is required. (Flatt, supra, at pp. 282-283.)
2. Successive Representation in Civil Matters
"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." (Flatt, supra, 9 Cal.4th at p. 283.) The test used to protect client confidences is derived from the ethical principle that "prohibits a lawyer from accepting employment adverse to a former client where the lawyer 'has obtained confidential information material to the employment.'" (Faughn, supra, 145 Cal.App.4th at p. 600.)
In Faughn, this court recognized that in cases of successive representation there were two ways a moving party could establish grounds for disqualification. Specifically, "a party may obtain the disqualification of an attorney by establishing that the targeted attorney (1) has actual knowledge of material confidential information or (2) is presumed to have acquired confidential information because of the relationship between the prior representation and the current representation." (Faughn, supra, 145 Cal.App.4th at p. 603.)
It usually is difficult for a moving party to prove the attorney actually acquired material confidential information because of a desire to retain the confidential nature of that information. (Faughn, supra, 145 Cal.App.4th at p. 603.) However, there are cases in which the actual acquisition of confidential information has been proven by inference without disclosing the specific details communicated. For example, in Pound v. DeMera Cameron (2005) 135 Cal.App.4th 70, this court determined an attorney had actual knowledge of confidential information and, as a result, disqualified the attorney and his law firm. (Id. at pp. 74, 76.)
The alternate basis for disqualifying an attorney in cases of successive representation involves the presumption that the targeted attorney obtained confidential information during the prior attorney-client relationship. (Faughn, supra, 145 Cal.App.4th at p. 603.) The governing test for whether the presumption arises requires the former client to "demonstrate a 'substantial relationship' between the subjects of the antecedent and current representations." (Flatt, supra, 9 Cal.4th at p. 283; Ontiveros v. Constable (2016) 245 Cal.App.4th 686, 695-696.) The "substantial relationship" test ensures the new client will only be deprived of his or her counsel of choice where necessary to protect the former client's interest in maintaining the confidentiality of matters disclosed to the attorney in the course of the prior representation. (Flatt, supra, at p. 283; accord, Sharp v. Next Entertainment, Inc., supra, 163 Cal.App.4th at p. 428.)
3. Substantial Relationship Test
The first step in determining whether there is a "substantial relationship" between successive representations is determining "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." (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847 (Cobra), citing Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 710-711 (Jessen).) In Jessen, this court stated:
"If the relationship between the attorney and the former client is shown to have been direct—that is, where the lawyer was personally involved in providing legal advice and services to the former client—then it must be presumed that confidential information has passed to the attorney and there cannot be any delving into the specifics of the communications between the attorney and the former client in an effort to show that the attorney did or did not receive confidential information during the course of that relationship. As a result, disqualification will depend upon the strength of the similarities between the legal problem involved in the former representation and the legal problem involved in the current representation.
This is so because a direct attorney-client relationship is inherently one during which confidential information 'would normally have been imparted to the attorney by virtue of the nature of [that sort of] former representation,' and therefore it will be conclusively presumed that the attorney acquired confidential information relevant to the current representation if it is congruent with the former representation." (Id. at p. 709, italics added.)
Once the nature of the relationship between the attorney and the former client is defined, the second step addresses "the relationship between the legal problem involved in the former representation and the legal problem involved in the current representation" and determines whether that relationship is substantial. (Jessen, supra, 111 Cal.App.4th at p. 709.) "'[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.'" (Faughn, supra, 145 Cal.App.4th at pp. 604-605, quoting Jessen, supra, at p. 713.) This principle "is anything but a 'bright line' standard, but it does not saddle the trial courts with an impossible task." (Jessen, at p. 713.) It provides a general, rather than specific, standard and "must be applied to individual cases by the exercise of the court's considered judgment based in reason, logic and common sense." (Ibid.) In the context of the substantial relationship test, confidential information is deemed "material" if it is directly at issue in, or has some critical importance to, the second representation. (Cobra, supra, 38 Cal.4th at p. 847.)
II. Actual Acquisition of Confidential Information
A. Trial Court's Decision
As the first ground for its decision, the trial court relied on our statement in Faughn that, "[i]n successive representation cases, a party may obtain the disqualification of an attorney by establishing that the targeted attorney (1) has actual knowledge of material confidential information ...." (Faughn, supra, 145 Cal.App.4th at p. 603.) The trial court found "Donovan received confidential information from Lori during the course of their first meeting [in 2005]" and concluded Donovan's disqualification was warranted under the first prong of Faughn. This finding about actual receipt of material confidential information was based on inferences because Lori's moving papers did not specifically identify the information she and Donovan exchanged during the 2005 consultation.
B. The Parties' Contentions
Gregory's appellate briefing does not explicitly address the trial court's disqualification of Donovan based on its finding that Donovan actually acquired material confidential information from Lori. Gregory's opening brief states: "Here, because the relevant facts that are at issue in this appeal are not in dispute, this Court should apply a de novo standard. To the extent this Court disagrees, then the abuse of discretion standard will apply. Under either standard, the order should be reversed."
Lori's respondent's brief, like Gregory's opening brief, does not specifically address the trial court's disqualification of Donovan based on its finding that Donovan actually acquired material confidential information from Lori. Rather, Lori (1) emphasizes the substantial evidence standard and its application to factual findings, (2) asserts the trial court's findings include facts that may be reasonably inferred from the evidence before the trial court, and (3) contends this court must assume the trial court resolved all conflicts in the evidence, including issues of credibility, in her favor. With respect to conflicts and credibility, Lori argues Gregory's reliance on self-serving assertions in Donovan's declarations is incorrect because the trial court implicitly rejected those assertions. Lori characterizes Gregory's opening brief as off point because it gives no deference to the trial court's findings of fact or the court's application of legal principles to those facts.
As to the merits, Lori contends substantial evidence supports the trial court's finding that a conflict of interest arose from Donovan's representation of Lori in 2005. Lori specifically argues the materiality of the confidential information extends to information that might affect possible settlement negotiations and is not limited to the legal and factual issues presented to the court. As to the claim her evidence was insufficient to support an implied finding as to the materiality of her confidential information, Lori contends her evidence adequately supports reasonable inferences regarding materiality.
Gregory's reply brief, like his opening brief, does not address Donovan's actual acquisition of material confidential information. The reply brief addresses Lori's arguments about the substantial evidence standard of review by reiterating his position that "there are no material factual disputes" and contending "the substantial evidence standard has no relevant application to the issues raised in this appeal. Instead, this Court can independently review the undisputed facts to determine whether, under the applicable substantial relationship test, the trial court erred in disqualifying Donovan."
C. Appellant's Burden
Ordinarily, appellants have the burden of affirmatively establishing prejudicial error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Some initial steps in carrying this burden are (1) raising the issue in a separate heading or subheading of the appellant's opening brief and (2) supporting the claim of reversible error with argument, citations to legal authority if possible, and appropriate references to the record. (See Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) The importance of these steps is reflected in the principle that appellate review usually is limited to issues that have been adequately raised and supported in the appellant's opening brief. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 835-836.)
Here, we will not end our analysis with the conclusion that Gregory failed to demonstrate the trial court erred in applying Faughn's first prong and finding Donovan actually acquired material confidential information in 2005. Instead, in an exercise of our discretion, we interpret Gregory's argument that information disclosed in 2005 is unlikely to affect support and other issues raised in this divorce proceeding as a contention that the confidential information acquired in 2005 was not "material" to the current divorce proceeding. This interpretation does not impinge Lori's right to due process—specifically, the right to be heard—because her brief addressed the issue of materiality. Therefore, we will consider and resolve a sequence of issues regarding materiality.
D. Materiality of the Confidential Information
1. Materiality as a Mixed Question of Law and Fact
The first issue we consider is whether the materiality of confidential information is a question of fact, a question of law, or a mixed question of law and fact. Resolution of this issue is necessary to determine whether to conduct a de novo review or apply the substantial evidence standard. Gregory's general arguments about the standard of review request de novo review while Lori's general arguments assert the substantial evidence standard should be applied.
In Cobra, the Supreme Court addressed whether confidential information was material to the attorney's present representation by citing Farris v. Fireman's Fund Ins. Co. (2004) 119 Cal.App.4th 671, 680, for the principle that "material confidential information is that which is 'directly at issue' in or has 'some critical importance to, the second representation.'" (Cobra, supra, 38 Cal.4th at p. 847.) The ordinary meaning of the adjective "material" is "[o]f such a nature that knowledge of the item would affect a person's decision-making; significant; essential." (Black's Law Dict. (11th ed. 2009) 1170.)
We conclude a trial court's resolution of the materiality issue resolves a mixed question of law and fact. Courts have reached the same conclusion under federal securities law and the California Corporations Code, where "materiality" ordinarily is characterized as a "mixed question of law and fact, involving the application of a legal standard to a particular set of facts." (Ins. Underwriters Clearing House v. Natomas Co. (1986) 184 Cal.App.3d 1520, 1526.) When a mixed question of law and fact is predominantly one of law, the de novo standard of review applies. (In re Marriage of Davis (2004) 120 Cal.App.4th 1007, 1015.) Alternatively, when resolution of the mixed question "requires application of experience with human affairs, the question is predominantly factual" and its determination is reviewed under the substantial evidence standard. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.) Here, the resolution of the question of materiality required the trial court to apply its experience with human affairs—particularly, the manner in which dissolution proceedings are handled both inside and outside the courtroom. Consequently, we conclude the issue of materiality was predominantly a question of fact subject to review under the substantial evidence standard.
2. Implied Determination of Materiality
The second question we consider is whether the trial court decided the issue of materiality. If the issue was not decided, then the next question would be whether this court should decide the issue of materiality on the record presented or remand it to the trial court for it to resolve in the first instance. (See Code Civ. Proc., §§ 43, 906 [appellate relief].)
The trial court did not explicitly state the confidential information obtained by Donovan in 2005 was "material" to her representation of Gregory in the present proceeding. The trial court's decision, however, contained multiple references to the materiality requirement, including a statement that the substantial relationship test requires a "comparison of both the legal issues involved in the successive actions and the materiality of the information the attorney received in the earlier representation." Thus, the record shows the trial court was aware of the materiality requirement. As a result, it is reasonable to infer the court decided the materiality question in favor of Lori when it concluded "[d]isqualification is warranted under the first prong of Faughn." (Faughn, supra, 145 Cal.App.4th at p. 603 [first prong refers to the actual acquisition of material confidential information].)
Moreover, under general principles of appellate practice, which include the presumption of correctness, all intendments and presumptions are indulged to support the order on matters as to which the record is silent. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Under this principle, we presume that, after referencing the materiality requirement, the trial court actually evaluated whether the confidential information was material to the divorce proceeding and impliedly concluded it was. Stated another way, the doctrine of implied findings requires this court to conclude the trial court impliedly found the confidential information acquired in 2005 was material to the present representation so long as substantial evidence supports that implied finding. (See Agri-Systems, Inc. v. Foster Poultry Farms (2008) 168 Cal.App.4th 1128, 1142 [doctrine of implied findings applied to order confirming arbitration award].)
3. Substantial Evidence and Inferences
The third issue in the sequence is whether the record contains substantial evidence supporting the implied finding of materiality. Under that standard, Lori contends a finding of materiality can be based on inferences without the need for evidence showing the specific details communicated between the attorney and the former client. We agree. Under the general formulation of the substantial evidence standard of review, the power of appellate courts reviewing express or implied findings of fact begins and ends with determining whether there is any substantial evidence, contradicted or not, supporting the trial court's findings. (Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 21.) This principle means appellate courts have no power "'to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.'" (Ibid., italics added.) This general principle applies in the context of a motion to disqualify an attorney. For example, in Pound v. DeMera DeMera Cameron, supra, 135 Cal.App.4th 70, this court determined an attorney's acquisition of material confidential information could be based on inferences drawn from the surrounding circumstances and a general description of the matters discussed with the attorney. (Id. at pp. 74, 76.)
Generally, an appellate court's analysis of the sufficiency of the evidence is aided by the requirement that the opening brief set forth all the material evidence on that issue or finding, and not merely evidence favorable to the appellant's position. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Clark v. Superior Court (2011) 196 Cal.App.4th 37, 52-53.) Here, Gregory has not set forth all the evidence in the record supporting the inference the confidential information actually acquired by Donovan in 2005 was material to her current representation of Gregory. The failure to set forth the relevant evidence usually results in a forfeiture of the challenge to the sufficiency of the evidence. (Foreman & Clark Corp., supra, at p. 881.) Nonetheless, we will undertake a review of the sufficiency of the evidence to support the implied finding of materiality. (See Estate of Bonzi (2013) 216 Cal.App.4th 1085, 1107, fn. 7 [this court addressed sufficiency of the evidence notwithstanding the appellant's failure to set forth all material evidence, including evidence harmful to his position].)
The evidence relating to the 2005 meeting between Donovan and Lori comes from their declarations. Lori's declaration dated April 13, 2018, stated she met with Donovan in or about 2005 because Gregory was threatening to divorce her. Lori paid the fee requested and "received advice from [Donovan] relative to issues regarding my marriage to [Gregory] that are now before this Court." Lori also stated she "sought and obtained advice from [Donovan]," she "acted on the advice [Donovan] gave me," and she believed Donovan's "advice had a substantial effect on issues relative to my marriage with [Gregory] and may affect my financial, property, and/or other rights in this action." Lori asserted she understood the information provided to Donovan was confidential. Lori also asserted Donovan said that she, Donovan, could not disclose Lori's information or the advice given to any third party.
Donovan's declaration dated July 30, 2018, stated she met with Lori as a potential new client 13 years ago, she was not retained by Lori, and she had absolutely no recollection of having met Lori or what might have been communicated during that meeting. Donovan also stated that her "initial consultations are usually scheduled for one hour" and it is her "habit and custom to discuss the general dissolution process with a potential client, describe the five (5) areas of subject matter that the parties and/or court will need to address." Donovan also stated she gives the potential client blank forms relating to assets, debts, income and expenses; she describes the forms and the necessity of exchanging complete and accurate preliminary and final declarations of disclosure. The five subjects discussed are property division, child support, spousal support (temporary and long term), child custody and visitation, and attorney fees. The discussion includes Donovan providing an overview of the legal parameters on which the court will base its decision. Donovan's overview takes approximately 30 to 45 minutes of the hour allotted to an initial consultation. Donovan also stated her belief that the passage of 13 years since her initial consultation with Lori rendered it remote in time and not a basis for disqualification as Gregory's attorney.
Donovan's declaration also stated that, in April 2018, after Donovan received a letter from Lori's attorney demanding that Donovan substitute out of the case, Donovan requested her assistant to conduct a further search for interview notes from a meeting with Lori. The assistant located notes from 2005. Donovan asked the assistant the date of the notes and told the assistant not to inform her of any additional information the notes contained.
The trial court found "Donovan took notes at the meeting," and then stated the "notes have been secluded and not reviewed by the court."
Viewed in the light most favorable to the trial court's order, the declarations establish that Lori told Donovan factual information about her marriage and Donovan gave Lori legal advice. The advice Donovan gave Lori is a confidential communication protected by the attorney-client privilege. (See Evid. Code, §§ 952 [confidential communication includes "advice given by the lawyer"], 954 [attorney-client privilege].) With respect to the advice given, Lori stated she acted on the advice and she believed Donovan's "advice had a substantial effect on issues relative to my marriage with [Gregory] and may affect my financial, property, and/or other rights in this action." We recognize that more detail would have strengthened the inference that the advice remained material to the present divorce proceeding, but conclude the trial court reasonably could infer from the statements in Lori's declaration that the advice was material to the present divorce proceeding.
Accordingly, we conclude the trial court's implied finding of materiality is supported by substantial evidence. As a result, the court's decision to disqualify Donovan under the first prong of Faughn for her actual acquisition of material confidential information provides one ground for affirming the disqualification order.
III. Genuine Likelihood Standard
As an alternate ground for our decision, we consider whether Gregory has established the trial court erred in applying the second prong of Faughn. That prong involves the application of the substantial relationship test and, if satisfied, results in a presumption the attorney obtained material confidential information.
A. Contentions of the Parties
Gregory contends "the key issue in a disqualification motion such as this is whether any confidential information provided to the attorney will have a 'genuine likelihood' of affecting 'the outcome of the [current] proceeding before the court.' (City of San Diego v. Superior Court [(2018)] 30 Cal.App.5th [457,] 472 ....)" Gregory asserts "the trial court never analyzed or discussed the issue of how any of the information allegedly disclosed to Donovan in 2005 has a genuine likelihood of affecting the outcome of the current divorce proceeding." In Gregory's view, the evidence shows that the disclosures in 2005 and 2017 do not satisfy the "genuine likelihood" standard and, therefore, the trial court abused its discretion by misinterpreting or misapplying the law.
Lori contends the "genuine likelihood" standard does not apply to the present case. In Lori's view, that standard is used when a party's attorney wrongfully or inadvertently obtained an adverse party's information protected by the attorney-client privilege. Alternatively, Lori contends that if the "genuine likelihood" standard applies, it was satisfied in this case.
B. Appropriate Legal Standard
The parties' disagreement about the applicability of the "genuine likelihood" standard presents a question of law subject to our independent review. If the trial court applied the wrong rule of law, it would have committed legal error and, as a result, abused its discretion. (See T.C.E.F., supra, 246 Cal.App.4th at p. 316; Rosenfeld Construction Co. v. Superior Court, supra, 235 Cal.App.3d at pp. 576-577.)
Based on precedent established by the California Supreme Court, we conclude a threshold factual inquiry for determining the applicable legal principle is whether the attorney subject to the disqualification request had an attorney-client relationship with the party moving for disqualification. (See SpeeDee Oil, supra, 20 Cal.4th at p. 1147 [court examined relationship between attorney and moving party to determine whether the attorney should be deemed to have represented the moving party for purposes of conflict of interest analysis].) If there was an attorney-client relationship, the next factual inquiry is whether "the potential conflict [of interest] arises from the attorney's successive representation of clients with potentially adverse interests" or, alternatively, arises from simultaneous representation of the clients. (Charlisse, supra, 45 Cal.4th at p. 161.)
In cases of successive representation where the actual acquisition of material confidential information is not shown, "the correct legal standard generally requires disqualification of the attorney if 'the [former] client demonstrate[s] a "substantial relationship" between the subjects of the antecedent and current representations.'" (Charlisse, supra, 45 Cal.4th at p. 161.) "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.]" (Cobra, supra, 38 Cal.4th at p. 847.)
In this appeal, (1) Donovan had an attorney-client relationship with Lori as a result of the preliminary consultation in 2005; (2) Donovan's potential conflict of interest arises from her successive representation of Lori and Gregory; and (3) Donovan's relationship with Lori was personal and direct, not peripheral. The trial court's findings of fact on these matters have not been challenged on appeal. Therefore, in accordance with Supreme Court precedent, we conclude the substantial relationship test applies and that test does not address whether any confidential information provided to the attorney would have a genuine likelihood of affecting the outcome of the current divorce proceeding. The Supreme Court disqualification cases discussing successive representations, which include Charlisse, Cobra and SpeeDee Oil, do not mention the genuine likelihood standard.
Gregory relies on City of San Diego v. Superior Court, supra, 30 Cal.App.5th 457, but that case did not involve an attorney undertaking successive representations and, therefore, does not support the application of the genuine likelihood standard to the facts of this case. (See Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1205 [where no attorney-client relationship exists, attorney's exposure to confidential information warrants disqualification where there exists a genuine likelihood that misconduct of attorney will affect the outcome of the proceedings].)
In sum, the trial court was not required to apply the genuine likelihood standard to the facts of this case. Therefore, Gregory's claims of error grounded on the application of that standard do not establish the trial court committed legal error and, as a result, abused its discretion. For example, Gregory's argument that the general subject matter is not the appropriate test and "the test is the materiality of the information and whether there is a genuine likelihood that the allegedly disclosed confidential information in 2005 will affect the outcome of the current proceeding" is based on the wrong legal standard.
IV. Other Arguments
A. Insufficiency of Lori's Declaration
Gregory contends the declarations in support of Lori's motion are insufficient to support the disqualification of Donovan. We reject this argument on the ground it is, in effect, a challenge to the sufficiency of the evidence. Such a challenge is reviewed under the substantial evidence standard. Previously, we concluded substantial evidence supported the implied finding that the confidential information exchanged in 2005 was material to the present representation. It follows from that conclusion that we reject Gregory's contention that the declarations supporting Lori's motion were insufficient.
B. Passage of Time
Gregory contends the trial court erred in concluding the passage of time is not a key and dispositive factor in this case. The trial court determined a substantial relationship existed between Donovan's representation of Lori and her current representation of Gregory and stated the representations were linked in a rational manner because "the factual situations are similar, albeit not precisely the same with the passage of time," and "the legal issues presented are similar, if not identical." (Italics added, original italics omitted.) Next, the court stated:
"Greg argues that the initial meeting was remote in time and that the circumstances of the marriage so radically changed over the last approximate 13 years that Donovan's prior representation of Lori is not substantially related to the current representation of him. The court disagrees. If a substantial relationship exists between the former and current representations, the length of time between them is irrelevant. (Brand v. 20th Century Ins. Co./21st Century Ins. Co. (2004) 124 Cal.App.4th 594, 607—neither the attorney's professed inability to recall any confidential information nor the passage of 12 years since the former representation could overcome the presumption.)"
Indulging all reasonable presumptions in favor of the trial court's order, we interpret the trial court's statements to mean the court realized the relevant facts could change over time when it analyzed the factual similarities of the two representations, but the passage of time, in and of itself, was not relevant. We further conclude the relevant facts were how circumstances changed in the interval between the two representations. For example, under California law, an order of spousal support can be modified based on a material change in circumstances since the order. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412.) Simply showing that time had passed since a prior support order would not justify modifying the support. Thus, the court's statement that "the length of time between [the two representations] is irrelevant" is technically accurate and should not be interpreted to mean the court ignored the relevant change in circumstances that occurred between the two representations. Stated another way, the passage of time is not directly relevant, but it may explain why confidential information has become obsolete and, therefore, is no longer material to the current proceeding. (See Niemi v. Girl Scouts of Minnesota and Wisconsin Lakes and Pines (Minn.Ct.App. 2009) 768 N.W.2d 385, 389, 390 [plaintiff disclosed her job experience, qualifications, supervisory skills, and relationship with staff to attorney representing her in an employment discrimination case 25 years earlier; court determined those facts were obsolete and only of limited, peripheral relevance to her current discrimination lawsuit].) Therefore, we reject Gregory's contention that the passage of time was a dispositive factor in this case.
During oral argument, counsel for Lori stated the passage of time was relevant because of a change in circumstances. This statement does not change our conclusion that it is the changes that are relevant and not the amount of time that has passed.
It is possible to interpret Gregory's argument as advocating a bright-line rule of law stating that, after the passage of a specified number of years, the information provided in an initial consultation about a potential divorce is deemed obsolete as a matter of law and, thus, no longer material to a subsequent divorce proceeding. A bright-line rule, although easy to administer, is disconnected from the underlying facts and circumstances. Because of this arbitrary aspect, we reject such a rule.
C. Limited Nature of Initial Consultation
Gregory contends the trial court erred by not properly considering the very limited nature of the contact between Lori and Donovan in 2005. We note that a trial court's failure to consider relevant evidence can be deemed an abuse of discretion. For example, the "[f]ailure to consider and apply the statutory factors [relating to spousal support] constitutes an abuse of discretion." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 305, superseded by statute on another ground as stated in In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1049.) In this context, "consider" means to weigh the evidence. (Gonzales v. Interinsurance Exchange (1978) 84 Cal.App.3d 58, 63.) Accordingly, we examine the record to determine whether the trial court properly considered (i.e., weighed) the limited nature of the initial consultation.
The trial court appears to have accepted Donovan's statements that (1) her initial consultations with a prospective client take about an hour and (2) her overview of the law and procedures takes about 30 to 45 minutes. The court stated this left "15 to 30 minutes for Lori to impart confidential information and receive advice." The trial court's explicit description of the 2005 initial consultation shows the court considered (i.e., weighed) the nature of that meeting in applying the substantial relationship standard. The fact the court gave more weight to that meeting than Gregory believes appropriate does not establish an abuse of discretion because the results of the weighing process fall within the bounds of reason and are not arbitrary or capricious.
D. Cautious Balancing of Competing Interests
Gregory contends the trial court erred by not weighing the factors set forth in In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556 (Zimmerman). In that case, the First Appellate District stated:
"Where, as here, a motion for disqualification is predicated upon a claimed breach of confidentiality or conflict of interest, the trial court must undertake a cautious balancing of competing interests. 'The court must weigh the combined effect of a party's right to counsel of choice, an attorney's interest in representing a client, the financial burden on a client of replacing disqualified counsel and any tactical abuse underlying a disqualification proceeding against the fundamental principle that the fair resolution of disputes within our adversary system requires vigorous representation of parties by independent counsel unencumbered by conflicts of interest. [Citations.]'" (Id. at pp. 562-563.)
The trial court's decision set forth the foregoing principles, cited Zimmerman, and then quoted the following from SpeeDee Oil:
"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." (SpeeDee Oil, supra, 20 Cal.4th at p. 1145.)
Based on the trial court's explicit inclusion of the principles set forth in Zimmerman about cautious balancing of interests, it is reasonable to infer the trial court weighed those interests in reaching its decision. Accordingly, we reject Gregory's contention that the trial court did not weigh those factors or, alternatively, committed procedural error by failing to include an explicit discussion of its analysis of the factors.
E. Waiver of Confidentiality of Intake Form
Gregory contends Lori waived any claim that she provided confidential information to Donovan in the 2017 client intake form because that information was disclosed by Lori in other pleadings filed with the court. This contention is difficult to evaluate because the copies of the intake form in the appellate record have been redacted. As a result, we cannot review Lori's response to the part of the form stating: "Please describe the present situation with your spouse in five to ten sentences." The trial court noted the form's invitation and stated, "Lori appears to have obliged with a full fourteen lines of information." The court, without reviewing the contents of the completed intake form, found Donovan obtained confidential information when Lori filled out and returned the form, "which included a somewhat lengthy description by Lori of her present situation with Greg." The court did not explicitly address Gregory's waiver argument.
"Waiver" is defined by California law as the intentional relinquishment or abandonment of a known right or privilege. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.) Under this definition, waiver is based upon intent and, therefore, presents a question of fact. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 745.) The party claiming waiver has the burden of proving it by clear and convincing evidence that does not leave the matter to speculation. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.) The party claiming waiver may carry the burden of proving an intent to relinquish the known right by presenting "the words of the waiving party," either oral or written, or conduct from which the requisite intent may be inferred. (Ibid.) In this case, Gregory argues, in effect, that Lori's intent to waive should be inferred from her subsequent disclosure of the information.
Under the principles governing waiver, Gregory had the burden of establishing waiver. Because the trial court did not provide an explicit analysis of waiver in a written ruling, we infer the court decided the issue in favor of the prevailing party. (See Denham v. Superior Court, supra, 2 Cal.3d at p. 564 ["'All intendments and presumptions are indulged to support [an order] on matters as to which the record is silent'"].) Under this rule of appellate procedure, we infer the trial court determined Gregory did not carry his burden of proof. When a trial court determines the party with the burden of proof failed to carry that burden, "'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.'" (Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1074.) Under this standard, a finding of waiver is required only if Gregory's "'evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]'" (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) Here, Gregory's evidence does not satisfy the finding-compelled-as-a-matter-of-law standard because the appellate record does not show what Lori stated in the 14 lines of information describing her present situation. Accordingly, Gregory has not shown that information was disclosed in documents Lori filed with the court.
"'[I]t is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.'" (Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 205 Cal.App.4th 960, 965.)
Gregory also asserts the trial court should have examined the intake form in camera before ruling on the waiver issue. Lori contends Gregory forfeited any right to obtain an in camera review because he never asked the trial court to undertake such a review. In response, Greg does not identify a place in the record where he requested in camera review, but asserts he is making the point that "the trial court never even addressed the waiver issue." As discussed earlier, when a trial court fails to explicitly discuss an issue in its written ruling, its silence on the matter results in a presumption the issue was resolved in a manner that supports the order. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Under this rule, Gregory's argument that the trial court never addressed the waiver issue does not establish reversible error because we infer the court resolved the waiver issue in Lori's favor.
Gregory contends the trial court erred by not permitting Donovan to properly defend herself. Gregory relies on Evidence Code section 958, which provides: "There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship." The rationale for this exception to the privilege is that it would be unjust to permit a client to accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge. (Anten v. Superior Court (2015) 233 Cal.App.4th 1254, 1258.) For instance, it would be "fundamentally unfair for a client to sue a law firm for the advice obtained and then to seek to forbid the attorney who gave that advice from reciting verbatim, as nearly as memory permits, the words spoken by his accuser during the consultation." (Solin v. O'Melveny & Myers (2001) 89 Cal.App.4th 451, 463.) Nothing in this opinion should be interpreted as holding or even suggesting the foregoing rules would not apply in a legal malpractice action or that Donovan's ability to defend against a claim of malpractice is somehow restricted by Lori's claim of confidentiality.
This litigation, however, is not a lawsuit in which Lori has sued Donovan for a breach of duty. Although Lori did bring a lawsuit against Donovan, that lawsuit had not been filed when the trial court made its decision. The trial court's refusal to allow Donovan to cross-examine Lori and its refusal to consider the intake form Lori completed in 2017 was appropriate in the context of a disqualification motion and, moreover, was not retroactively made erroneous by Lori's subsequent filing of a malpractice action. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [normally, reviewing courts consider only matters which were part of the record at the time the trial court's decision was made].) The fact Lori's malpractice action against Donovan has been dismissed provides additional support for applying the usual rule and limiting our review to the record before the trial court when it decided the disqualification motion.
Next, we consider whether Evidence Code section 958 should be extended to disqualification motions such that attorneys would be allowed to disclose confidential information when opposing a motion to disqualify. We reject such an extension because it would contradict the rule of law that "there cannot be any delving into the specifics of the communications between the attorney and the former client in an effort to show that the attorney did or did not receive confidential information during the course of that relationship." (Jessen, supra, 111 Cal.App.4th at p. 709.) Under this rule, the trial court was not required to allow Donovan to disclose the contents of the 2017 intake form or to cross-examine Lori about the information disclosed. Accordingly, we will not remand the matter with directions for the trial court or special master to hold an evidentiary hearing for the purpose of deciding whether the information set forth in the 2017 intake form was subsequently disclosed by Lori.
DISPOSITION
The order of disqualification is affirmed. Lori shall recover her costs on appeal.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DETJEN, J.