James Alvin Jarvis v. Todd Henry Jarvis

Appellant Jarvis Properties is a limited partnership that owns a two-acre parcel of

land. Its two general partners—appellant Todd Henry Jarvis and respondent James Alvin

Jarvis (brothers)—each own a 50 percent interest in the partnership, which is less than the

majority consent required to act on behalf of the partnership (Corp. Code, § 15904.06,

subd. (a)). The general partners cannot agree on what to do about the two-acre parcel and

their partnership agreement does not address the question of what occurs in the event of a

decision-making deadlock. They have, therefore, turned to the courts.

James Jarvis filed an action for partition by sale, naming Todd Jarvis and Jarvis

Properties as defendants.1

Todd hired a lawyer to represent him in the partition action; he

also hired a separate lawyer, William Roscoe, III, to represent the partnership. Both

Todd and the partnership filed demurrers. James objected to having Roscoe represent the

partnership and filed a motion to disqualify Roscoe on the ground that Roscoe was not

authorized to act by the requisite majority of the general partners. James was concerned

that Roscoe—who took the position that he was not subject to the direction of either



1 For ease of reference, we will refer to the brothers by their first names.

2

partner and was being paid by Todd—was not acting in the best interests of the

partnership and would run up unnecessary litigation costs and deplete the partnership’s

limited assets, to the detriment of the partnership. The trial court granted the motion to

disqualify Roscoe, dismissed the partnership’s demurrer, and overruled Todd’s demurrer.

Both Todd and the partnership appeal the order disqualifying Roscoe and dismissing the

partnership’s demurrer.

2

We conclude the trial court did not err as a matter of law when it granted the

motion to disqualify Roscoe in the circumstances of this case. Finding no abuse of

discretion, we will affirm the order disqualifying Roscoe.

I. FACTS AND PROCEDURAL HISTORY

A. Description of Property at Issue and Litigation Involving the Property

The parties and the property at issue are well known to this court. After their

father’s death in 1996, Todd and James were the beneficiaries of certain family trusts.

Litigation ensued in Monterey County, and the brothers entered into an agreement in

1998 as part of a court-supervised settlement of their dispute concerning the family trusts.

In 2004, Todd and James amended the trust and named John McDonnell (a trust attorney)

as the court-appointed trustee. The trust’s primary assets consisted of real property in

Salinas: the Jarvis Ranch (333.5 acres of farmland on the west side of Highway 101) and

two parcels that are adjacent to one another (three acres in a residential area on the east

side of Highway 101). One of the two smaller parcels is the subject of this appeal. The

trust allowed either beneficiary to object to certain proposed actions by the trustee,

followed by court authorization. Todd filed several such proceedings in Monterey

County Superior Court. Between 2010 and 2018, the trust litigation resulted in the filing



2 Todd has not appealed the order overruling his demurrer. “An order overruling a

demurrer is not directly appealable, but may be reviewed on appeal from the final

judgment. [Citation.]” (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182.)

3

of three appeals and four writ petitions in this court.3 The trust litigation was resolved by

confidential settlement in late 2018.

This appeal arises out one of two partition actions that were filed in 2016

involving the two parcels on the east side of Highway 101. The first parcel, which is

“just over [one] acre” in size, is located at 2357 North Main Street in Salinas in an area

that is predominantly residential. According to James, this parcel “has an irregular shape

which hampers its development prospects unless coupled with” the adjacent parcel. The

first parcel is currently improved with three older houses, a garage, and a water tower, all

of which “suffer from a great deal of deferred maintenance.” The parties refer to this

parcel as the “Improved Property,” and we adopt that designation. Todd and James

(individually and as trustee of two trusts) own the Improved Property as tenants in

common.

The second parcel is located immediately adjacent to the Improved Property on

North Main Street. The parties refer to this parcel as the “Adjacent Property,” and we

shall do the same. The Adjacent Property is two acres in size; it is vacant land and

allegedly provides no income. James alleges it is “more rectangular in shape which helps

to make the two properties as a whole far more developable.” For ease of reference, we

shall refer to the Improved Property and the Adjacent Property combined as the “Two

Parcels.”



3 The three appeals arising out of the trust litigation (Monterey County Superior

Court case No. P31598) are McDonnell v. Jarvis (Feb. 24, 2012, H035553) [nonpub.

opn.]; McDonnell v. Jarvis (Oct. 23, 2013, H036490) [nonpub. opn.]; and McDonnell v.

Jarvis (June 30, 2014, H037704) [nonpub. opn.]. On our own motion, we take judicial

notice of this court’s opinions in the prior appeals. (Evid. Code, § 452, subd. (d)(1).)

Our summary of the factual and procedural background includes some information that

we have taken from those opinions. The writ petitions arising out of the trust litigation

are case numbers H037406, H043655, H043728, and H045993. Todd was the petitioner

in each case, and in each case, the petition was denied.

4

The Two Parcels were once owned by James and Todd’s parents, James A.P.

Jarvis (Father) and Marjorie Todd Jarvis (Mother). In December 1986, Father, Mother,

and James formed a limited partnership known as Jarvis Properties (hereafter sometimes

“the Partnership”). Father was the general partner and Father, Mother, and James were

the limited partners. The purpose of the limited partnership was to “engage in the

investment in real property” and its primary asset was the Adjacent Property. Ownership

of the Partnership changed over time. At all times relevant to this dispute, Todd and

James each owned 50 percent of the general and limited partnership interests in Jarvis

Properties.

4

The Partnership owns the Adjacent Property. During much of the trust

litigation, the Two Parcels were “wholly controlled” by the trustee, McDonnell. In

September 2015, the trustee relinquished control of the Two Parcels to Todd and James.

Todd and James were also parties to three consolidated eminent domain actions in

Monterey County Superior Court (case Nos. M98919, M98920, and M98921), which

were filed by the California Department of Transportation to acquire portions of the

Jarvis Ranch and the Two Parcels for improvements along Highway 101. During the

pendency of those actions, the Jarvis Ranch was sold to a third party, who settled the

eminent domain action as to Jarvis Ranch. The eminent domain actions as to the Two

Parcels went to trial in April 2016. Todd has appealed the judgment rendered in that trial

in case No. H043737, which is pending before this court. Thus, the Two Parcels have

been the subject of the trust litigation, the eminent domain actions, and the partition

actions.



4

James holds his 50 percent interest in the Partnership in his individual capacity

and as trustee of three trusts: (1) the 1987 James A.P. Jarvis Revocable Trust for the

benefit of the Issue of James Alvin Jarvis; (2) the 1987 Marjorie Todd Jarvis Revocable

Trust for the benefit of the Issue of James Alvin Jarvis; and (3) the 1986 Jarvis

Irrevocable Trust. James, individually and as trustee of the three trusts, is the plaintiff in

this partition action.

5

B. Partition Actions

1. Complaints in First and Second Partition Actions

In May 2016, James filed a complaint in Jarvis v. Jarvis (Monterey County

Superior Court case No. 12CV001295, hereafter “Case No. 1295”) seeking partition of

both the Improved Property and the Adjacent Property.5 The complaint contained causes

of action for partition by sale, an accounting, and appointment of a receiver. James

alleged that since McDonnell relinquished control of the Two Parcels in September 2015,

the brothers “have not been able to agree on how to care for or dispose of” the properties.

James suggested hiring a professional property manager, which Todd rejected. James

alleged Todd (1) took control of the Two Parcels and collected rent on the Improved

Property; (2) has not provided an accounting or information regarding the payment of

rents or the condition of the properties; and (3) has not consulted with James about the

Two Parcels, even though James is a co-owner of the Improved Property and the

Partnership. The complaint alleged that the jury awarded the Partnership $163,162 in the

eminent domain action and that James is concerned that Todd will “usurp those funds for

his own uses.” Aside from the proceeds of the eminent domain action and owning the

Adjacent Property, the Partnership “has no other business function, and does not owe any

creditors any money.”

Todd filed a demurrer and a motion to strike the complaint in Case No. 1295. In

September 2016, the trial court sustained the demurrer with leave to amend and granted

the motion to strike, stating that James “may not seek partition of two parcels under

different ownership under a single cause of action for partition and sale.” While Todd’s

motions were pending, James filed a motion for appointment of a receiver over the

Improved Property, which the court granted.



5 Todd’s requests for judicial notice of the complaint filed in Case No. 1295 and

the trial court’s September 13, 2016 order sustaining the demurrer and granting the

motion to strike in that case are granted. (Evid. Code, §§ 459, subd. (a); 452, subd. (d).)

6

In September 2016, James filed a new complaint in the instant action entitled

Jarvis v. Jarvis, Monterey County Superior Court case No. 16CV002928 (hereafter

sometimes “Case No. 2928”), which contains a single cause of action for partition by sale

of the Adjacent Property. It alleges that “there is no possibility that [James and Todd]

would cooperate to develop” the Two Parcels, that the brothers are “unable and unwilling

to collectively manage or develop the Adjacent Property,” that its highest and best use is

to be sold, and that its value can be maximized in a coordinated partition sale with the

Improved Property. The named defendants are Todd and Jarvis Properties.

James, as general partner, signed a notice and acknowledgement of receipt in

March 2017, accepting service of the new complaint on behalf of the Partnership. In a

case a management conference statement, James told the court he planned to file a

motion to consolidate the two partition actions. He also stated that Todd had selected

attorney William P. Roscoe, III to represent the Partnership and complained of Todd’s

“unilateral appointment” of Roscoe.

2. James’s Motion to Disqualify Roscoe

Shortly after James filed his case management conference statement, Roscoe filed

a demurrer on behalf of the Partnership. While the demurrer was pending, James filed a

motion to disqualify Roscoe from representing the Partnership and to dismiss the

demurrer because Roscoe lacked authority from a majority of the general partners to

represent the Partnership. James argued that “[p]ursuant to his standard practice,

Todd . . . has elected to seek to render this litigation as needlessly complex and wasteful

as possible.” He stated that Todd selected Roscoe to represent the Partnership over his

express objection and that Roscoe had “taken the position that his representation of the

partnership is to be directed solely by one general partner [Todd], and in direct

contravention of the direction of the other equal general partner [James].” Citing

7

Corporations Code section 15904.06, subdivision (a)6

, James argued that since there is

more than one general partner, Roscoe needed the authority of a majority of the general

partners to act and since Roscoe was only authorized by one general partner, he was not

authorized to act on behalf of the Partnership or to file a demurrer. James argued that

Todd planned to demur on the same grounds; that Todd could articulate his arguments

regarding partition directly without the need for Roscoe to represent the Partnership; that

although the Partnership is a separate entity, it has no position independent of the general

partners.

James suggested options for handling the deadlock between the partners if Jarvis

Properties must participate in the action, which he broke down into two categories:

(1) allowing the partners to litigate the partition action without participation by the

Partnership, or (2) “appointing a tie-breaking actor . . . to act on behalf of the

Partnership.” As for the first category, James suggested the parties could stipulate to an

appearance by the Partnership in which it submits to the court’s jurisdiction and agrees to

be bound by the outcome of the litigation conducted by the brothers. James contended it

was not necessary for the court to “make this determination at this time, and it may

simply order Roscoe disqualified.” He also argued that because Roscoe did not have the

requisite authority to act on behalf of the Partnership, the demurrer was moot. He argued

that if Todd has the power to unilaterally order the filing of a demurrer, then James has

the authority to unilaterally order it withdrawn. Shortly after James filed the motion to

disqualify Roscoe, Todd filed his demurrer to the complaint.

3. James’s Opposition to the Demurrers

James filed opposition to both demurrers, which stated: “[N]ot only has [Todd]

filed his own meritless demurrer—he has unilaterally (and in direct violation of the legal

requirement that only a majority of general partners may direct partnership activities such



6 All undesignated statutory references are to the Corporations Code.

8

as litigation) directed Roscoe to file another overlapping demurrer.” James argued the

demurrers were “without merit, and their duplicative procedural posture makes clear the

true intent is merely the squandering of resources.” James argued that the Partnership’s

demurrer was not properly before the court because Roscoe was not authorized to act on

behalf of the Partnership. He argued that Code of Civil Procedure section 872.730

expressly permits “an action for partition of partnership property” and that both the

statute and the partnership agreement permit partition of partnership property outside of

an action to dissolve the Partnership.

4. The Partnership’s Opposition to the Motion to Disqualify Roscoe

In opposition to the disqualification motion, Roscoe filed a declaration stating that

(1) he was retained to represent only Jarvis Properties; (2) he did not represent Todd, who

had his own attorney; (3) Todd had signed Roscoe’s retainer agreement as a general

partner of the Partnership; and (4) the retainer agreement provides that Roscoe represents

Jarvis Properties only and will not represent any of its partners.

The Partnership’s opposition began by repeating many of the arguments in the

demurrers and discussing whether James had the authority under partnership law and the

partition statutes to bring a partition action. The opposition argued that the partition

action was not authorized by law and that the disqualification motion was an attempt to

remove opposition to the partition action to facilitate an unauthorized sale of the property.

The Partnership argued that “having sued the Partnership [James] may not, due to

obvious conflicts of interest, participate in the defense in any way. While neither partner

should participate [in] or direct the Partnership defense, there is no conflict if one

partner sues the Partnership and one partner merely arranges for independent

representation of the Partnership as Todd . . . has done.” (Italics added.) In response to

James’s suggestion that the Partnership did not need separate representation because

Todd and James would adequately litigate all issues, the Partnership argued that neither

9

Todd nor James “have any property interest whatever” in the Adjacent Property and

therefore lacked standing to bring or defend the partition action. It also argued that since

James did not have standing to bring the partition action, he lacked standing to move to

disqualify Roscoe. The Partnership argued that it was sued by James and had every right

to appear as a named party represented by counsel. It contended that by seeking to

disqualify Roscoe, James sought to prevent “any representation or defense of the

Partnership at all,” and that the tie-breaking options proposed by James “are far outside

the scope of this motion.” The Partnership asserted that if the motion to disqualify was

successful, James would be able to sell the property “in the absence of opposition of the

owner thereof, which is the Partnership.”

5. James’s Reply in Support of the Disqualification Motion

In reply, James asserted that since Roscoe had argued that “neither partner should

participate [in] or direct the Partnership defense,” Roscoe’s view was that “the goals,

strategy, tactics, and costs of this litigation should be left entirely to [Roscoe], with no

direction from any general or limited partner, or from any officer of the Partnership.”

James argued this was a violation of the Rules of Professional Conduct, former rule 3-

600, which required an attorney “representing an organization” to “conform his or her

representation to the concept that the client is the organization itself, acting through its

highest authorized officer, employee, body, or constituent overseeing the particular

engagement.” James argued it was not for Roscoe to decide what is in the best interest of

the Partnership, and that “is for a majority of the general partners to decide.” James

asserted that Todd retained Roscoe to represent the interests Todd wishes to pursue; that

since the Partnership has no liquid assets, Roscoe was “presumably” being paid by Todd;

and that to “the extent [Roscoe] expects to recoup his fees . . . from Partnership assets,”

he was doing a disservice to the Partnership, the very entity he represents. James argued

that Roscoe would “run up” costs without direction from someone on behalf of the

10

Partnership or a court-ordered appointment, and that Roscoe was not acting in the best

interest of the Partnership. James argued that Todd had demurred on the same grounds as

the Partnership, and was sufficiently interested to “reasonably assure that all relevant

facts and issues will be adequately presented.”

6. Hearing and Orders on Motion to Disqualify and Demurrers

The motion to disqualify and the demurrers, were heard at the same time. The

court’s tentative ruling on the motion to disqualify was to grant the motion because “there

is not a majority of partners in this two-partner business that agree on hiring an attorney

for the partnership.” The court noted that the partners were deadlocked and stated, “if

these two parties never agree, there is never going to be any action taken on this

property . . . because of the history of this relationship.” The court granted the motion to

disqualify Roscoe and dismissed the Partnership’s demurrer without prejudice. The court

denied Todd’s request for judicial notice and overruled Todd’s demurrer to the

complaint. Both Todd and the Partnership (sometimes jointly “Defendants”) appeal the

order on the disqualification motion.

II. DISCUSSION

A. The Partnership Has Waived Any Defects in Service and is Not in Default

We proceed by addressing two points raised by the opening brief. Todd and the

Partnership complain repeatedly in their joint opening brief that James acted

inappropriately by serving himself and then accepting service of the complaint on behalf

of the Partnership. They also suggest that the trial court’s order disqualifying Roscoe and

dismissing the demurrer forces the Partnership to default. As we shall explain, neither

point has any merit.

The Partnership did not file a motion to quash service of summons or otherwise

challenge service of the complaint in the trial court. Jarvis Properties’ demurrer was a

first appearance by the Partnership, which waived any defects in service. (Code Civ.

11

Proc., §§ 1014 [defendant appears in an action by filing a demur] and 410.50, subd. (a)

[“A general appearance by a party is equivalent to personal service of summons on such

party”]; Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th

1135, 1145 [a general appearance operates as a consent to service, curing any defects in

service].) Since the Partnership waived any defects in service by filing a demurrer,

Defendants cannot complain that service was improper on appeal.

Defendants contend the trial court’s order disqualifying Roscoe, “creates an

absurd result where a fifty percent (50%) partner can sue his partnership and then force

the partnership to default by vetoing its ability to hire [an attorney].” By filing a

demurrer, the Partnership prevented the court from entering its default. (Code Civ. Proc.,

§ 585, subds. (a), (b) [authorizing clerk, upon application, to enter the defendant’s default

if “no answer, demurrer, [or other enumerated response] has been filed.”) The court in

Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 298 (Barragan), held that if a

demurrer has been filed, but goes off calendar and is no longer operative and hence moot,

the clerk may enter the defendant’s default. One treatise questions the result in Barragan

and notes that no other appellate court has endorsed its “ ‘moribund demurrer’ analysis.”

(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter Group 2018)

¶¶ 5:38 to 5:40, P. 5-12.) In this case, the trial court, upon disqualifying Roscoe,

dismissed the demurrer. It did not find that the Partnership was in default. Under the

plain language of section 585, subdivisions (a) and (b), what prevents entry of default is

the filing of the demurrer. Since the Partnership filed a demurrer, it is not in default, and

the filing of the demurrer prevents its default from being taken.

B. Standard of Review

“An order on a motion to disqualify counsel is directly appealable.” (Lynn v.

George (2017) 15 Cal.App.5th 630, 633, fn. 1, citing Derivi Construction & Architecture,

Inc. v. Wong (2004) 118 Cal.App.4th 1268, 1272.) “ ‘A trial court’s authority to

12

disqualify an attorney derives from the power inherent in every court “[t]o control in

furtherance of justice, the conduct of its ministerial officers, and of all other persons in

any manner connected with a judicial proceeding before it, in every matter pertaining

thereto.” [Citations.]’ (People ex rel. Dept. of Corporations v. SpeeDee Oil Change

Systems, Inc. (1999) 20 Cal.4th 1135, 1145 . . . (SpeeDee Oil).) ‘Generally, a trial court’s

decision on a disqualification motion is reviewed for abuse of discretion. [Citations.]’ ”

(In re Charlisse C. (2008) 45 Cal.4th 145, 159 (Charlisse C.).)

“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. The trial court’s

findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed

de novo, and its application of the law to the facts is reversible only if arbitrary and

capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) “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. [Citations.]’ [Citation.] 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. [Citations.]” (Charlisse C., supra, 45 Cal.4th at p. 159

[trial court that applied the wrong legal standard in ordering counsel’s disqualification

abused its discretion].) “The importance of the policy concerns underlying a

disqualification order mandates ‘careful review of the trial court’s exercise of discretion.’

[Citation.]” (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 351-352 (Dino), citing

SpeeDee Oil, supra, 20 Cal.4th at p. 1144.)

The parties acknowledge these authorities, but dispute whether there were

disputed factual issues here. Defendants argue that there are no disputed questions of fact

and that the parties disagree on what the law allows and that the issue is purely a legal

question, which this court should review de novo. James contends the de novo standard

13

is not the appropriate standard of review because there are disputed questions of fact

regarding “who will direct Roscoe’s unauthorized representation of the Partnership.”

Although presented as a factual dispute, this is really a legal question of who has the right

to direct the Partnership’s defense in the circumstances presented here. We shall review

the question whether the court erred as a matter of law when it disqualified Roscoe de

novo and the court’s application of the legal rules to the facts for abuse of discretion.

C. General Principles Regarding Disqualification of Counsel

James’s motion to disqualify Roscoe derives from the contention that Roscoe was

without authority to act for the Partnership. Although this argument is not typical of the

bases on which attorneys are removed by the trial court, we find the principles underlying

disqualification useful in our analysis here. As we have noted, a “trial court’s authority

to disqualify an attorney derives from the power inherent in every court ‘[t]o control in

furtherance of justice, the conduct of its ministerial officers, and of all other persons in

any manner connected with a judicial proceeding before it, in every matter pertaining

thereto.’ [Citations.]” (SpeeDee Oil, supra, 20 Cal.4th at p. 1145, quoting Code Civ.

Proc., § 128, subd. (a)(5).) “The power is frequently exercised on a showing that

disqualification is required under professional standards governing avoidance of conflicts

of interest or potential adverse use of confidential information. [Citations.] Violation of

a disciplinary rule may justify disqualification. ([Citation.]; cf. Gregori v. Bank of

America (1989) 207 Cal.App.3d 291, 303 . . . [(Gregori)] [suggesting disqualification is

not necessarily warranted for violation of a specific disciplinary rule].)” (Responsible

Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1723-1724 (Responsible

Citizens).)

In general, “[c]onflicts of interest commonly arise in one of two factual contexts:

(1) in cases of successive representation, where an attorney seeks to represent a client

with interests that are potentially adverse to a former client of the attorney; and (2) in

14

cases of simultaneous representation, where an attorney seeks to represent in a single

action multiple parties with potentially adverse interests. The primary fiduciary value at

stake in each of these contexts differs, and the applicable disqualification standards vary

accordingly. In successive representation cases, ‘the chief fiduciary value jeopardized is

that of client confidentiality.’ (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283 . . .

(Flatt).) Therefore, the disqualification standards [our Supreme Court has] developed for

such cases focus on the former client’s interest ‘in ensuring the permanent confidentiality

of matters disclosed to the attorney in the course of the prior representation.’ (Ibid.) In

simultaneous representation cases, ‘[t]he primary value at stake . . . is the attorney’s

duty—and the client’s legitimate expectation—of loyalty, rather than confidentiality.’

(Id. at p. 284.) Because a conflict involving an attorney’s duty of loyalty is ‘most

egregious’ kind of conflict, the disqualification standards [the Supreme Court has]

developed for simultaneous representation cases are ‘more stringent’ than those that

apply in successive representation cases; ‘[w]ith few exceptions, disqualification [in a

case of simultaneous representation] follows automatically, regardless of whether the

simultaneous representations have anything in common or present any risk that

confidences obtained in one matter would be used in the other. [Citation.]’ (SpeeDee

Oil, supra, 20 Cal.4th at p. 1147.)” (Charlisse C., supra, 45 Cal.4th at pp. 159-160.)

“The attorney’s obligation to maintain client confidences—the duty central to

successive representation conflicts—is confirmed by California statute. Business and

Professions Code section 6068, subdivision (e) provides: ‘It is the duty of an attorney to

do all of the following: [¶] … [¶] (e)(1) To maintain inviolate the confidence, and at

every peril to himself or herself to preserve the secrets, of his or her client.’ This

obligation survives the termination of the attorney-client relationship (SpeeDee Oil,

supra, 20 Cal.4th at pp. 1144-1145). The attorney’s duty of loyalty to his or her client—

the duty central to concurrent representation conflicts—is specified in the California State

15

Bar Rules of Professional Conduct. (Rules Prof. Conduct, [former] rule 3-310(C) & (E);

[citation].)” (M’Guinness v. Johnson (2015) 243 Cal.App.4th 602, 614-615.)

D. Standing

Todd and the Partnership argue that James does not have standing to seek

Roscoe’s disqualification because James has never had an attorney-client relationship

with Roscoe. They assert that Roscoe represents only the Partnership, and they rely on

the rule from Responsible Citizens that “ ‘representation of a partnership does not, by

itself, create an attorney-client relationship with the individual partners.’ ” (Responsible

Citizens, supra, 16 Cal.App.4th at p. 1731.) Indeed, no one contends that Roscoe directly

represents or has ever represented either of the partners. James argues that Defendants

mistakenly rely on standing rules for disqualification based on conflicts of interest and

that those rules do not apply here since he sought Roscoe’s disqualification based on a

lack of authority to act on behalf of the Partnership, not a conflict of interest. James

argues that he “has an inherent right to seek Roscoe’s disqualification because Roscoe’s

purported representation of the Partnership was not authorized by the general partners”

and that he (James) arguably “had a duty as a general partner to move to disqualify

Roscoe.”

We review the question whether a party has standing to bring a disqualification

motion de novo. (Blue Water Sunset, LLC v. Markowitz (2011) 192 Cal.App.4th 477,

485 (Blue Water).)

“Standing generally requires that the plaintiff be able to allege injury, that is, an

invasion of a legally protected interest.” (Great Lakes Construction, Inc. v. Burman

(2010) 186 Cal.App.4th 1347, 1356.) Cases have held that “[a] ‘standing’ requirement is

implicit in disqualification motions” (ibid.) or that a “complaining party who files a

motion to disqualify is required to have standing” (Blue Water, supra, 192 Cal.App.4th at

p. 485). To demonstrate standing to disqualify counsel, “[s]ome cases hold that the

complaining party must prove a present or past attorney-client relationship with the

16

attorney who is the target of the motion. ([Dino, supra, 145 Cal.App.4th 347, 352 . . .];

Earl Scheib, Inc. v. Superior Court (1967) 253 Cal.App.2d 703, 707 . . . [a generally

recognized exception to disqualification is where the relationship of attorney and client

was never in fact created between the attorney and the complaining party]; Cornish v.

Superior Court (1989) 209 Cal.App.3d 467, 478 . . . [‘ “Before an attorney may be

disqualified from representing a party in litigation because his representation of that party

is adverse to the interest of a current or former client, it must first be established that the

party seeking the attorney’s disqualification was or is ‘represented’ by the attorney in a

manner giving rise to an attorney-client relationship.” ’].)” (Blue Water, at p. 485.)

“Other courts permit disqualification on a different basis, holding that standing is

established so long as the lawyer owed a duty of confidentiality to the complaining party

and breached it. (DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832

. . . [‘Standing arises from a breach of the duty of confidentiality owed to the complaining

party, regardless of whether a lawyer-client relationship existed.’].)” (Blue Water, at

p. 485.)

In Dino, the court questioned “whether the issue is properly framed as one of

standing,” but agreed “that some sort of confidential or fiduciary relationship must have

existed before a party is entitled to prevail on a motion to disqualify an attorney

predicated on the actual or potential disclosure of confidential information.” (Dino,

supra, 145 Cal.App.4th at p. 353, italics added.) Although the parties and the trial court

in Dino had framed their analysis in terms of whether the appellants had standing to

move to disqualify, the appellate court preferred to frame the analysis in terms of whether

the appellants “were entitled to prevail on a motion seeking [the attorney’s]

disqualification.” (Id. at p. 353, fn. 2.) The court explained, “Generally, standing refers

to an aggrieved party’s right to bring an action in the first instance, rather than an existing

party’s right to bring a motion seeking some sort of relief from the trial court.

([Citations]; see also Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439–

17

440 & fn. 3 . . . [‘a party who has standing to bring an action has standing to seek

available provisional relief in that action’]; Apartment Assn. of Los Angeles County, Inc.

v. City of Los Angeles (2006) 136 Cal.App.4th 119, 128 . . . [‘Standing goes to the

existence of a cause of action [citations]’].)” (Dino, at p. 353, fn. 2.)

Applying the analytical framework from Dino here, we conclude that James was

not required to have an attorney-client relationship with Roscoe to move to disqualify

him. As we have noted, James’s motion to disqualify was not based on simultaneous or

successive representation, but rather on Roscoe’s lack of authority to act on behalf of the

Partnership in the first place. Whether James had an expectation of loyalty or

confidentiality is not the issue here. Because this case is predicated on attorney Roscoe’s

alleged lack of authority to act on behalf of the Partnership, James was required to

demonstrate that he had an interest in the question of whether Roscoe was properly

authorized to represent the Partnership. We conclude that since a majority of the partners

has not agreed to retain Roscoe (§ 15904.06, subd. (a)), James, a general partner who

owns 50 percent of the Partnership, has a sufficient interest to challenge Roscoe’s

authority to act in this case.

Johnson v. Superior Court (1995) 38 Cal.App.4th 463 (Johnson), which is not an

attorney disqualification case, supports our conclusion. In Johnson, the limited partners

of a limited partnership sued the general partner and the attorney who represented the

partnership for fraud. The trial court granted the attorney summary adjudication on the

issue of duty. The appellate court granted the limited partners’ petition for writ of

mandate and directed the trial court to vacate the order. The court acknowledged the rule

from Responsible Citizens that “mere representation of a partnership does not per se

constitute representation of the individual partners” and reviewed the factors enumerated

in that case to determine whether the attorney had formed an attorney-client relationship

with the limited partners. (Id. at pp. 476-478.) The limited partners alleged that in the

course of representing the partnership, the attorney performed services that benefitted the

18

general partner to the detriment of the partnership, which violated the attorney’s duty of

care and loyalty to the partnership. (Id. at p. 478.) The court noted that the partnership

would have had a cause of action against the attorney and that if the general partner failed

to bring the action, then the limited partners could have brought a derivative action under

former section 15702 or a direct action in equity. (Ibid.) The court held that the

undertaking by the attorney to represent the partnership, “imposed upon him an

obligation of loyalty to the partnership and to all partners in terms of their entitlement to

benefits from the partnership. Whether this constituted [him] an attorney, literally, for

the individual limited partners, is of no great moment. He had a duty to the partnership to

look out for all the partners’ interests, and if this could not be accomplished because of

conflicts of interest among them he had a duty to terminate the representation (or obtain

appropriate waivers of the conflict).” (Id. at p. 479, footnote omitted.) Thus, if Roscoe’s

duty to act in the best interest of the Partnership is designed to protect the interests of all

the partners, then James has an interest in disqualifying Roscoe if he believed his actions

would deplete partnership assets, or Roscoe would act to place Todd’s interests ahead of

the Partnership’s.

In summary, we conclude that because this is not a conflict of interest case, James

was not required to have an attorney-client relationship with Roscoe to move to

disqualify him. Since James moves to disqualify Roscoe based on a lack of authority for

Roscoe to act on behalf of the Partnership, we conclude that because a majority of the

partners have not agreed to retain Roscoe and James is a general partner with a 50 percent

ownership interest in the Partnership and because Roscoe owed a duty to protect the

Partnership’s interests, which benefits all of the partners, James’s interest was sufficient

to challenge Roscoe’s authority to represent the Partnership. For these reasons, we reject

the Defendants’ contention that James did not have “standing” to move to disqualify

Roscoe. We thus consider the merits of the disqualification of Roscoe.

19

E. The Coldren Case

Defendants argue that the trial court’s order disqualifying Roscoe as counsel for

the Partnership should be reversed because James gave up the right to control the

Partnership’s defense when he sued it for partition. Relying on Coldren v. Hart, King &

Coldren, Inc. (2015) 239 Cal.App.4th 237 (Coldren), Defendants contend that Coldren is

“strikingly similar to the matter at bar” and “addressed the core issue presented” here.

Defendants rely on the court’s statement in the introduction that a plaintiff cannot “ ‘sue

his company and then, because he is a 50 percent shareholder, have a say in its defense’ ”

(id. at p. 241).

Coldren arose out of a dispute between two equal shareholders in a corporation.

Robert Coldren owned 50 percent of the shares in Hart, King & Coldren, Inc. (HKC), a

law firm. William Hart owned the other 50 percent interest in HKC. Both were officers

and directors of the corporation. (Coldren, supra, 239 Cal.App.4th at p. 241.) After

Coldren announced his intent to retire, the two shareholders and the corporation entered

into a written agreement governing the terms of his departure. As part of that agreement,

Coldren resigned from his position as an officer and director of the corporation. (Id. at

pp. 241-242.) One year later, Coldren sued Hart and HKC for involuntary dissolution,

breach of the shareholder agreement and the departure agreement, and other claims,

seeking $8 million in damages. Hart and HKC filed a cross-complaint that alleged,

among other things, that in spite of promises not to compete and to transition Coldren’s

clients to HKC, Coldren was stealing clients and opening a practice in direct competition

with HKC. (Id. at pp. 242-243.) Hart and HKC were jointly represented by the law firm

Grant Genovese (GG). Coldren brought a motion to disqualify GG on the ground that it

was improper for Hart to direct HKC to sue Coldren. The trial court granted the motion,

finding an actual conflict of interest in GG’s representation of both Hart and the

corporation. The trial court ordered the shareholders to select neutral counsel for HKC

and stated that if they did not select neutral counsel, the court would appoint counsel.

20

(Id. at pp. 243-244.) Hart and HKC appealed, arguing in part that there was no

disqualifying conflict between Hart and HKC. The appellate court agreed and reversed

the order disqualifying GG. (Id. at pp. 241, 245, 252.)

The court began “by setting forth the legal principles governing the

disqualification of an attorney based on a conflict” of interest. (Coldren, supra,

239 Cal.App.4th at p. 248, italics added.) This included: (1) case law; (2) former rule 3-

310(C) of the State Bar Rules of Professional Conduct,

7 which requires the attorney who

represents more than one client to obtain the informed written consent of each client

when the clients’ interests potentially or actually conflict; (3) former rule 3-600,

8 which

governed how an organization gives informed consent for dual representation; and

(4) formal opinion No. 1999-153 of the State Bar of California Committee on

Professional Responsibility and Conduct, which interpreted these rules in circumstances

similar to those presented in Coldren. (Coldren, at pp. 248-250.) The Coldren court

concluded that Hart and HKC did not “ ‘have opposing interests in the lawsuit which

[GG] would have a duty to advance simultaneously for each’ ” and noted that neither

Coldren nor the trial court had identified any such interests. (Id. at p. 250.) Thus, there

was no conflict of interest that precluded GG from representing both Hart and the

corporation. (Ibid.)



7 Further rules citations are to the State Bar Rules of Professional Conduct. Under

new rules that were adopted by the Board of Trustees of the State Bar in September 2018

and approved by the Supreme Court with revisions effective November 1, 2018, former

Rule 3-310(C) has been renumbered Rule 1.7. (2 Standard California Codes 6-in-2 (2019

ed.) Rules of Professional Conduct, pp. i, vi, 6-7 (Standard Codes).)

8 Former Rule 3-600 has been amended and renumbered Rule 1.13, effective

November 1, 2018. (Standard Codes, supra, p. vi.) Rule 1.13 provides: “A lawyer

employed or retained by an organization shall conform his or her representation to the

concept that the client is the organization itself, acting through its duly authorized

directors, officers, employees, members, shareholders or other constituents overseeing

the particular engagement.” (Changes in the wording of the rule have been italicized.)

21

Defendants’ reliance on Coldren is misplaced. As we have noted, disqualification

motions occur most commonly in the context of conflicts of interests between clients:

when counsel’s simultaneous representation of a current client is adverse to the interests

of another current client or when counsel’s successive representation of a current client

is adverse to the interests of a former client and, by reason of the former representation,

the attorney obtained confidential information material to the current representation.

(SpeeDee Oil, supra, 20 Cal.4th at pp. 1146-1147; Responsible Citizens, supra,

16 Cal.App.4th at pp. 1723-1725.) Neither of those concerns are implicated here. Unlike

Coldren, this is not a conflict of interest case. Roscoe has only one client: the

Partnership. He does not simultaneously represent the Partnership and James (or Todd).

In addition, there was no allegation that he formerly represented James, which could have

resulted in the potential adverse use of confidential information. Since this case does not

involve the dual representation of the Partnership and a partner, Coldren’s holding as to

who may consent to such representation does not apply. The issue here is Roscoe’s lack

of authority ab initio to act for the Partnership, and how to resolve a conflict of authority

within the Partnership that renders the attorney incapable of acting on the matter in

dispute. Neither James nor Defendants cite any cases or other legal authority involving a

motion for disqualification based on counsel’s lack of authority to act for an entity client

or a conflict of authority within a partnership or other entity client. As our independent

research has not discovered any cases discussing this question, we turn to other sources to

determine whether the trial court abused its discretion when it ordered Roscoe

disqualified.

F. State Bar Opinion No. 1994-137, Partnership Agreements & the ULPA

Rules of ethics are one of the tools courts utilize when deciding whether

disqualification is necessary to preserve the integrity of the of the judicial process. (In re

Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 586.) Under the State Bar

Rules of Professional Conduct, an attorney who represents a partnership must treat the

22

partnership itself as the client and need not undertake representation of the partners

individually. (Rule 1.13(a); former rule 3-600(A); Responsible Citizens, supra,

16 Cal.App.4th at pp. 1729-1730.) This flows from the rule established in the Uniform

Limited Partnership Act of 2008 (§§ 15900 et seq., hereafter ULPA), that a “limited

partnership is an entity distinct from its partners.” (§ 15901.04, subd. (a).) “A limited

partnership has the powers to do all things necessary or convenient to carry on its

activities, including the power to sue, be sued, and defend in its own name and to

maintain an action against a partner for harm caused to the limited partnership by a

breach of the partnership agreement or violation of a duty to the partnership.”

(§ 15901.05.)

The State Bar of California Standing Committee on Professional Responsibility

and Conduct (the Committee) formal opinion No. 1994-137 (State Bar Opn. 1994-137)

provides some guidance regarding an attorney’s ethical considerations when undertaking

the representation of a partnership. It addresses “a lawyer’s ethical duties when in the

course of representing a partnership the lawyer receives conflicting instructions from two

of the partners in circumstances where it is unclear which partner’s instruction the lawyer

must follow.” (State Bar Opn. 1994-137.)

The Committee notes that former Rule 3-600(A), which applies to partnerships,

“states that in representing an organization, ‘. . . a member shall conform his or her

representation to the concept that the client is the organization itself, acting through its

highest authorized officer, employee, body, or constituent overseeing the particular

engagement.’ . . . [¶] Accordingly, in representing a partnership a lawyer represents the

partnership itself acting through the partner authorized to oversee the representation.

Ordinarily, that means that the lawyer representing a partnership takes direction from its

general partner, since limited partners cannot take part in the control of the partnership

and retain the limited liability of a limited partner. [Citations.] However, in determining

who oversees the representation in any given situation, a lawyer must conform to the

23

requirements of the applicable statutes, the partnership agreement and any other pertinent

agreements between the partners. [Citation.]” (State Bar Opn. 1994-137, citing

Responsible Citizens, supra, 16 Cal.App.4th 1717, footnotes omitted.)

Lack of clarity over who is authorized to oversee the engagement of the attorney

for the partnership places the lawyer “in a position where he or she cannot follow one

partner’s instruction without violating the other partner’s instruction. It is not a conflict

of interest, because the lawyer has only one client, the partnership. It is, instead, a

conflict of authority within the partnership over who oversees and instructs the

partnership’s lawyer.” (State Bar Opn. 1994-137.) The Committee opines that a “lawyer

in this situation is adrift in perilous waters. The lawyer’s duty of loyalty requires the

lawyer to act at a client’s direction. A lawyer cannot act without the client’s

authorization. Nor can the lawyer take over the decision making for a client absent

authority to do so. At the same time, a lawyer has a duty to competently represent the

partnership as a client” and “cannot abdicate [that duty] in the face of a dispute among

the partners.” (State Bar Opn. 1994-137.) The Committee concludes that “a lawyer

caught in this situation must first determine whether the partnership agreement or

applicable law provide an answer as to who has the authority to instruct counsel. For

example, if the partnership agreement states which partner has the authority to oversee

the representation, the lawyer must conform the representation to those provisions and

take instruction from that partner.” (State Bar Opn. 1994-137.) This is consistent with

section 15901.10, subdivision (a), which provides that subject to exceptions enumerated

in subdivision (b), “the partnership agreement governs relations among the partners and

between the partners and the partnership,” and if the partnership agreement is silent, the

ULPA governs such relations.

“While [former] rule 3-600 instructs a lawyer to take actions as appear to be in the

best interests of the organization, a lawyer must recognize the limits of his or her

function. A lawyer must be careful to maintain the role as a servant of the partnership

24

and not assume the client’s role in the lawyer-client relationship. Thus, the lawyer may

render advice which he or she believes is in the best interests of the partnership.

However, the lawyer cannot make decisions which are the partnership’s to make. [¶] . . .

[W]here the lawyer cannot reasonably determine which partner’s instruction the lawyer

may follow, the lawyer cannot take any action for the partnership in connection with the

matters in dispute, until the dispute is resolved. . . . If the lawyer reasonably believes that

he or she cannot effectively represent the partnership, the lawyer may withdraw.” (State

Bar Opn. 1994-137, footnote omitted.)

Although the Committee’s opinion concludes by saying it is not binding on the

courts, the opinion provides a helpful analytical framework. It suggests that in

determining who has the authority to select counsel and direct the Partnership’s defense,

we look first to the terms of the partnership agreement.9

Here, the Partnership agreement

is silent on this point. It does not delegate the selection of counsel or decision-making

regarding litigation to either of the general partners. It does not say what happens when

the general partners are deadlocked. When the Partnership was formed, there was only

one general partner—who had the right to make decisions for the Partnership—and three

limited partners. With that structure, no one envisioned deadlock. There is no evidence

the partnership agreement was amended to address the possibility of deadlock after the

brothers each acquired a 50 percent ownership interest in the Partnership.

In the absence of direction from the partnership agreement, the Committee’s

opinion directs us next to applicable partnership law. The motion to disqualify was based

on section 15904.06, subdivision (a), which is part of the ULPA. It provides: “Each



9

In support of his demurrer, Todd asked the trial court to judicially notice the

partnership agreement and other documents related to the ownership of Jarvis Properties.

The trial court properly denied the request for judicial notice in the context of Todd’s

demurrer. However, James attached a copy of the partnership agreement as an exhibit to

the complaint in Case No. 1295, and we have granted Todd’s request to judicially notice

the complaint in that case.

25

general partner has equal rights in the management and conduct of the limited

partnership’s activities. Except as expressly provided in this chapter, any matter relating

to the activities of the limited partnership may be exclusively decided by the general

partner or, if there is more than one general partner, by a majority of the general

partners.” We understand the term “majority” here to mean more than 50 percent. (See

§ 15901.02, subds. (s), (t), (v)(3).) Neither Todd nor James alone constitutes a majority

of the general partners sufficient to decide matters relating to the Partnership, including

the selection of counsel and the conduct of the litigation. Thus, neither the partnership

agreement nor the applicable UPLA statutes resolve the issue of whether Roscoe’s

representation of the Partnership is authorized or lawful.

Defendants argue that the trial court’s reliance on section 15904.06, subdivision

(a) was misplaced. They argue that filing an action to “force the sale” of the

Partnership’s “sole property” falls under the “unanimous consent requirement” of section

15904.06, subdivision (b), which provides in relevant part: “[t]he consent of each partner

is necessary to: [¶] . . . [¶] (2) sell, lease, exchange, or otherwise dispose of all, or

substantially all, of the limited partnership’s property, . . . , other than in the usual and

regular course of the limited partnership’s activities.” In our view, Defendants’ reliance

on section 15904.06, subdivision (b) is misplaced. The issue presented by the motion to

disqualify Roscoe is who has the authority to select and direct counsel on behalf of the

Partnership, not who has the authority to sell or otherwise dispose of partnership

property. Defendants have conflated the question of authority to sell the Adjacent

Parcel—which they raised in their demurrers and which is not before us in this appeal—

with the question of authority to select and direct counsel.

In their reply brief, Defendants also raise, for the first, time two arguments based

on the statutory construction of section 15904.06, subdivision (a) and assert that under a

different provision of the ULPA, Todd had the authority to unilaterally retain Roscoe.

First, they argue that the majority rule in section 15904.06, subdivision (a) is qualified by

26

the phrase “[e]xcept as expressly provided in this chapter” and that section 15904.02—a

different statute in the same chapter—which they contend gives “each partner the power

to act as an agent and bind the limited partnership in the ordinary course of business”—

applies here. Second, they argue that by using the word “may” in the phrase “may be

exclusively decided by . . . a majority of the general partners” in section 15904.06,

subdivision (a), the Legislature realized that there may be situations where less than a

majority of general partners should be deciding the activities of the partnership, including

when a partner sues the partnership. They do not cite any legal authority supporting these

points and their description of section 15904.02 is cursory. Since these arguments were

“neither timely nor fully made,” and Defendants have not explained why they were not

raised before, and James has not had an opportunity to respond, we will not address them

further. (Julian v. Harford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4

[points raised for the first time in a reply brief will not be considered, unless good reason

is shown for failing to present them before]; Tellez v. Rich Voss Trucking, Inc. (2015) 240

Cal.App.4th 1052, 1066 [obvious considerations of fairness demand that the appellant

present all points in the opening brief; withholding a point until the reply deprives the

respondent of an opportunity to answer it].)

G. Ethical Considerations

With no clear resolution from the partnership agreement or partnership law, we

return to the Supreme Court’s discussion of the values and interests at stake in a

disqualification motion. The “paramount concern” in evaluating a motion to disqualify

counsel “must be to preserve public trust in the scrupulous administration of justice and

the integrity of the bar.” (SpeeDee Oil, supra, 20 Cal.4th at p. 1145.) The primary

fiduciary values at stake in conflict of interest cases are the client’s right to

confidentiality and the attorney’s duty of loyalty. (Charlisse C., supra, 45 Cal.4th at

pp. 159-160.) While we have noted this is not a conflict of interest case, in our view

27

James has raised legitimate points regarding Roscoe’s duty of loyalty, not as between

multiple clients, but as to his representation of the Partnership. Since Todd selected

Roscoe, is paying Roscoe, and is directing the litigation, there is the appearance that

Roscoe may advance Todd’s interests over James’s interests, which may not necessarily

be in the best interests of the Partnership. Despite Roscoe’s declaration that he represents

the Partnership, and not Todd, James also raises legitimate concerns that Roscoe will not

act in the Partnership’s best interests by running up unnecessary litigation costs that will

deplete the Partnership’s assets and adversely impact James’s ownership interest in the

Partnership.

As noted in State Bar Opinion 1994-137, an additional concern is whether Roscoe

has stepped outside his role as counsel for the Partnership. An organizational client acts

through its “duly authorized directors, officers, employees, members, shareholders of

other constituents overseeing the particular engagement.” (Rule 1.13(a); see also former

rule 3-600 [organization acts “through its highest authorized officer, employee, body or

constituent”].) “An organizational client can only act through individuals who are

authorized to conduct its affairs” and it “is not within the lawyer’s province to make

decisions on behalf of the organization concerning policies and operations.” (Comment

to Rule 1.13, Standard Codes, p. 11.) Roscoe asserted below that “neither partner should

participate [in] or direct the Partnership defense. . . .” In contravention of the authorities

cited above, by eschewing direction from either partner, Roscoe may have assumed the

client’s role in the attorney-client relationship. The fact that Roscoe took the position

that he could represent the Partnership without direction from either partner is troubling

in light of the relevant law under the ULPA and guidance provided by the State Bar.

10



10 We recognize that there is limited legal authority and guidance for counsel

regarding the legal and ethical issues raised in this case. We accept Roscoe’s

representation at oral argument that he investigated the legal and ethical questions raised

by his representation of the Partnership in good faith.

28

We note also that although James has filed a direct action for partition of partnership

property, some of his concerns in the disqualification motion are derivative in nature:

protecting the Partnership’s assets from being squandered on unnecessary litigation and

insuring that partnership counsel acts in the best interests of the Partnership.

We are persuaded that James has demonstrated a risk that Roscoe, who is being

paid by Todd and directed by Todd, may advance Todd’s interests; that his representation

may not be in the best interests of the Partnership, and may unnecessarily deplete the

Partnership’s assets. Additionally, Roscoe has stated that he believes he can act on behalf

of the Partnership without direction from either of the partners in contravention of Rule

1.13. These factors support our conclusion that the trial court did not err as a matter of

law and acted within its discretion when it granted the motion to disqualify Roscoe as

counsel for the Partnership.

H. Additional Values and Interests at Stake on Motion to Disqualify

Having determined that the factors discussed above support the trial court’s

decision to grant the motion to disqualify, we consider whether there are values and

interests that militate against the trial court’s decision to disqualify Roscoe. “A motion to

disqualify a party’s counsel may implicate several important interests. Consequently,

judges must examine these motions carefully to ensure that literalism does not deny the

parties substantial justice. [Citation.] Depending on the circumstances, 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. [Citations.] Nevertheless, determining whether a conflict of interest requires

disqualification involves more than just the interests of the parties.” (SpeeDee Oil, supra,

20 Cal.4th at pp. 1144-1145.) “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

29

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. [Citations.]” (SpeeDee Oil,

at p. 1145.)

SpeeDee Oil recognized the “client’s right to chosen counsel” as one of “several

important interests” implicated in a motion to disqualify counsel. (SpeeDee Oil, supra,

20 Cal.4th at p. 1145.) Defendants argue that under former Rule 3-600, Coldren, and

State Bar Opinion 1999-153 (which the court relied in Coldren), James is not an

appropriate person to consent to Roscoe’s representation of the Partnership. They argue

that under Coldren, James cannot sue the Partnership and then have a say in its defense or

who its lawyer should be. By analogy to Coldren, they argue that if James is not the

appropriate constituent of the Partnership to consent to the joint representation of Todd

and the Partnership, then James is also not an appropriate constituent to consent to

Roscoe representing the Partnership.

James responds that unlike Coldren, who resigned as a director of HKC and

relinquished all authority to make corporate decisions to Hart, he (James) never

relinquished his equal right to manage the Partnership. He asserts that if Coldren had not

resigned, then the directors in that case would have been deadlocked, and Hart would not

have been able to hire counsel unilaterally. He also suggests that Hart would have been

able to seek relief under section 308, which authorizes the court to appoint a provisional

director to break corporate deadlocks. We agree that Coldren is factually distinguishable

on this basis. But Coldren was a conflicts of interest case and therefore did not discuss

whether Hart had the authority to unilaterally consent to joint representation with HKC.

James also asserts that unlike Coldren, who sued HKC for damages, the partition

action he filed seeks a remedy that is in the best interests of the Partnership and the

partners. He argues that the “brothers . . . have been embroiled in ongoing litigation for

the past 16 years. They must disentangle from each other and disposing of these two

30

properties is necessary to achieve that end.” He argues they have an opportunity to

maximize the value of the Two Parcels by selling them together and to convert the

“unproductive” Adjacent Parcel “into more cash” than if it were sold alone. He asserts

that it would be a breach of their fiduciary duties for the general partners not to sell the

properties together. James argues Roscoe is acting “solely at the direction of Todd,” and

“simply pursuing Todd’s agenda[,] which [James] believes to be injurious to the interests

of the Partnership.” We agree that this lawsuit is distinguishable from Coldren on this

basis and that this distinction should be considered in evaluating this appeal. In addition,

the motion to disqualify Roscoe appears to have been filed in best interests of the

Partnership by seeking to avoid assertedly unnecessary and duplicative attorney fees.

In SpeeDee Oil, the Supreme Court also identified the financial burden on the

client to replace disqualified counsel as an important interest implicated by a motion to

disqualify. (SpeeDee Oil, supra, 20 Cal.4th at pp. 1144-1145.) James filed the motion

immediately after the Partnership made its first appearance. Roscoe’s work consists

primarily of filing papers in support of the demurrer and in opposition to the motion to

disqualify him, appearing at the hearing on the demurrer and the motion, and contributing

to the joint briefs filed on appeal by Todd and the Partnership, and appearing at oral

argument. Since Roscoe was disqualified at the earliest stage of the litigation, the cost of

replacing him will be lower than if the motion to disqualify had been made at a later

stage. Todd and the Partnership do not complain of the cost of replacing Roscoe. And

although he is concerned about costs, James does not complain of the cost of replacing

Roscoe. His concern is that not replacing Roscoe will cause the cost of the litigation to

skyrocket. This is based on the fact that Todd retained Roscoe, is paying Roscoe, and

may be directing Roscoe’s handling of the litigation. Based on Todd’s actions in the trust

31

litigation, there may be grounds for such a concern.11

Moreover, based on his counsel’s

comments at oral argument, it appears undisputed that Jarvis Properties will have to

reimburse Todd for any payments he makes to Roscoe (§ 15904.06, subd. (c)), which

potentially depletes the Partnership’s assets and decreases its value to both Todd and

James. In our view, James’s interest, as a general partner, in controlling the Partnership’s

litigation costs is an important interest in the circumstances of this case, analogous to the

financial burden of the client identified in SpeeDee Oil.

We also consider whether tactical abuse underlies the motion and examine

whether the motion was misused to harass opposing counsel, to delay the litigation, or to

intimidate an adversary into accepting settlement on terms that would not otherwise be

acceptable. (SpeeDee Oil, supra, 20 Cal.4th at p. 1145; Gregori, supra, 207 Cal.App.3d

at p. 301.) The record suggests the motion to disqualify was filed to prevent unnecessary

expenditure of the Partnership’s assets on litigation. Nothing here suggests James

intended to delay the litigation. Indeed, he filed the motion at the first available

opportunity. James alleges that after the partners were unable to agree on how to manage

the Two Parcels, he filed the partition action as the most efficient way of getting the Two

Parcels sold together to maximize their value. Nothing here supports the conclusion that

the motion to disqualify was filed for an improper purpose.

Having reviewed the important interests and factors that our Supreme Court

described in SpeeDee Oil, we conclude that the trial court did not err when it granted the

motion to disqualify attorney Roscoe. The most important of these factors are the



11 For example, in a petition filed in the trust litigation, the trustee told the court

that although Todd had originally nominated him as trustee, Todd had become

increasingly hostile toward the trustee, which dramatically increased the costs of trust

administration. In his August 2015 petition to terminate the trust and distribute the trust

proceeds, the trustee asked the court to allocate over $1 million of the cost of trust

administration to Todd and alleged Todd’s deliberate bad faith attempts to interfere with

trust administration had caused fees and costs to skyrocket.

32

“ethical considerations that affect the fundamental principles of our judicial process.”

(SpeeDee Oil, supra, 20 Cal.4th at p. 1145.) The trial court’s order reflects an

appropriate sensitivity to the ethical challenges posed by Roscoe’s representation of the

Partnership, and its issuance was well within the court’s discretion.

I. Alternatives to Representation

We next address the question of alternatives to representation by Roscoe.

Defendants argue that the alternatives to having Roscoe represent the Partnership that

James suggested are improper, prejudicial, and inconsistent with the court’s order on the

demurrer in Case No. 1295. Those alternatives included stipulating to an appearance by

the Partnership and allowing the brothers to litigate the matter, or appointing a tiebreaking

provisional partner, neutral counsel, or a receiver. The court’s order does not

say which, if any, of these alternatives it selected.

The Corporations Code provides a mechanism for breaking corporate deadlocks.

When a corporation “has an even number of directors who are equally divided and

cannot agree” on the management of corporate affairs so that the corporation’s “business

can no longer be conducted to advantage” or there is “a danger that its property or

business will be impaired or lost,” section 308, subdivision (a), authorizes a court to

appoint a “provisional director” to break the deadlock, regardless of the terms of the

articles or the bylaws and whether or not an action for involuntary winding up or

dissolution of the corporation is pending. An action for such appointment may be

brought by any director or by the holders of not less than one third of the voting power in

the corporation. (§ 308, subd. (a).) The provisional director “acts as a ‘tiebreaker’ when

a deadlock exists . . . .” (In re ANNRHON, Inc. (1993) 17 Cal.App.4th 742, 751.)

There are no comparable provisions in the ULPA that authorize a court to appoint

a provisional general partner in the case of a deadlocked limited partnership. But

section 15901.07, subdivision (a), which is part of the ULPA, says that “[u]nless

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displaced by particular provisions of [the ULPA], the principles of law and equity

supplement [the ULPA].” The parties have not briefed the question whether the court

had the authority in equity to appoint a provisional partner to break deadlocks pending

resolution of the litigation.

James argues: “Todd is already a party to the action, and can voice his opposition

in as full-throated a manner as he so chooses. As discussed below, the Partnership can

also be represented should the trial court require it. However, that attorney cannot be

hired and directed by either Jim or Todd alone as neither has the requisite power to do so.

Before counsel could be hired, there would need to be a break in the deadlock on an

entity level. The trial court, acting in equity, is in the best position to determine how that

can best be achieved.”

Based on their briefing below, we conclude there is substantial evidence that the

brothers, who represent opposing views on the propriety of the partition action, can

adequately articulate their positions and guide the trial court in determining what is in the

best interests of this two-person partnership. There are no other general partners or

limited partners whose interests might conflict with the brothers’ interests in the

Partnership. James’s counsel stated at oral argument that James had no intention of

taking the Partnership’s default. And as we have noted, by filing a demurrer, the

Partnership has prevented its default from being taken.

In the unique circumstances of this case, we conclude the trial court did not err as

a matter of law, and therefore did not abuse its discretion when it granted the motion to

disqualify attorney Roscoe. Since this is an equitable action for partition, and given the

court’s inherent power to “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” (Code Civ. Proc., § 128, subd. (a)(5)), we leave it to the trial court to fashion

the appropriate remedy. The trial court may decide that the brothers can adequately

articulate the issues presented in this partition action and that the Partnership therefore

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does not require separate counsel. However, the court may wish to explore options for

resolving deadlock at the entity level and consider the appointment of a receiver, neutral

counsel, or other neutral to protect the interests of the partners and the Partnership.

Again, that is for the trial court to decide in the exercise of its inherent and equitable

powers.

The trial court’s order on the motion to disqualify attorney Roscoe is affirmed.