Cochran v. Cochran

Filed 9/18/07 Cochran v. Cochran CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge.

Billy Cochran, in pro. per., for Plaintiff and Appellant.

Law Offices of John J. Johnson and John J. Johnson for Defendant and Respondent.

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Appellant Billy Cochran contends the trial court abused its discretion when it denied his motion to disqualify Attorney John J. Johnson as counsel for respondent Donna Cochran^[1]and entered a judgment dismissing his underlying action with prejudice.

We will vacate the judgment, direct the trial court to file the second amended complaint, and remand for further proceedings. We also conclude the trial court did not abuse its discretion in denying the motion to disqualify Johnson.

FACTUAL AND PROCEDURAL SUMMARY

Johnson represented Billy from August 23, 2000, to December 4, 2000, in a dissolution of marriage action and a domestic violence complaint.

On April 11, 2005, Billy filed a complaint against Donna for an intentional tort (conversion) and for failure to repay a loan. Donna answered, denying liability. Donnas attorney was Johnson.

On November 3, 2005, Billy filed a motion to disqualify Johnson. On November 21, Johnson filed a response to the disqualification motion, denying that he had a conflict. On December 6, 2005, the trial court denied the motion to disqualify.

On November 3, 2005, Billy also filed a request asking that he be allowed to amend his complaint and thereafter filed a first amended complaint. On January 3, 2006, Donna filed a demurrer to the first amended complaint, asserting it failed to state a cause of action, was barred by the statute of limitations, and that the request for exemplary damages did not relate to any stated cause of action.

At Billys request, the trial court issued a minute order permitting Billy again to raise the issue of disqualification. On January 10, 2006, Billy renewed his motion to disqualify Johnson.

On March 29, 2006, Billy responded to Donnas demurrer by filing a motion seeking authority to file a second amended complaint. The original second amended complaint accompanied the motion, but it was not marked filed by the superior court.

Billy also filed opposition to the demurrer. In his opposition, Billy (1) acknowledges his request for exemplary damages should be stricken; (2) asserts the statute of limitations is tolled by Code of Civil Procedure section 352.1, subdivision (a);^[2]and (3) contends the proposed second amended complaint resolves any issues regarding whether the first amended complaint failed to state a cause of action.

On March 16, 2006, a minute order continuing all hearings on the disqualification and demurrer to April 18, 2006, was filed. Thereafter, on April 18, a minute order issued denying the motion to disqualify Johnson and sustaining the demurrer with leave to amend. The order specifies that an amended complaint should be filed within 10 days.

The second amended complaint submitted by Billy and received by the trial court never was filed. There is no order either denying or granting his motion seeking permission to file the second amended complaint.

On May 9, 2006, a Request and Order for Dismissal was filed. It recites (1) on April 18, 2006, the demurrer was sustained with leave to amend; (2) no amended complaint had been filed within the 10-day timeframe specified by the trial court; and (3) the action, therefore, is dismissed with prejudice.

On May 25, 2006, Billy filed an appeal, specifying that he was appealing the denial of disqualification of counsel. He specified issues on appeal that pertain only to the disqualification.

On June 30, 2006, Billy filed an amended notice of appeal. This amended notice of appeal states that it is an appeal of the judgment of May 9, 2006.

DISCUSSION

Two issues are presented in this appeal: (1) whether the trial court abused its discretion in dismissing the case with prejudice on May 9, 2006, and (2) whether the trial court abused its discretion in denying the motion to disqualify Johnson. We answer the first in the affirmative and the second in the negative.

I. Dismissal With Prejudice

The demurrer sustained by the trial court was to the first amended complaint. When the trial court sustained the demurrer, it granted 10 days for Billy to file another amended complaint. When the dismissal of the action was entered on May 9, 2006, it recited that no amended complaint had been submitted. This recitation, however, is factually incorrect.

Prior to the trial courts ruling on the demurrer to the first amended complaint, Billy submitted a second amended complaint and a motion requesting that the second amended complaint be filed. The trial court never ruled on this motion and Billys second amended complaint never was filed, only received. It was an abuse of discretion to dismiss the case when a second amended complaint had been submitted to the trial court and could have, and should have, been filed within 10 days of the granting of the demurrer to the first amended complaint. (See Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1053-1054.)

We will direct that the judgment of dismissal be vacated and the second amended complaint be filed. In anticipation of further proceedings in the trial court, we make the following observations.

The demurrer to the first amended complaint asserts three reasons the demurrer should be granted: (1) failure to state a cause of action; (2) statute of limitations; and (3) improper request for exemplary damages. The order granting the demurrer does not state on what grounds the demurrer was granted.

The second amended complaint does not contain a request for exemplary damages and provides much more specificity as to the causes of action asserted. Billy asserts any applicable statute of limitations is tolled by the provisions of section 352.1, subdivision (a), which tolls the statute of limitations for a period of two years if a plaintiff is incarcerated. Billy alleges in the trial court that he was incarcerated on June 15, 2002, and continues to be incarcerated in Folsom Prison.

We also note that in response to our July 5, 2007, letter asking the parties if there were any matters that may moot the appeal or resolve the underlying issues, Johnson submitted copies of documents filed in small claims action No. 02CLSC00324 in Fresno County in 2003. Those documents disclose that in 2003 Becky Mata, apparently Billys second wife, filed suit in small claims court against Billys mother, Donna. The suit alleges that Donna converted property belonging to Billy and Mata and that Donna failed to repay money loaned to her by them. A judgment was entered on March 3, 2003, holding that Donna owes Mata $500. The judgment also holds that many of the items that Billy claims were converted in this action were the property of Donna. Matas request for a new trial was denied. Donna did not appeal. The effect of this small claims judgment, if any, on the second amended complaint is not a matter for this court to determine, as the small claims judgment never was brought to the attention of the trial court.

II. Disqualification Not Required

Billy contends that Johnson is precluded from representing Donna by virtue of State Bar Rules of Professional Conduct, rule 3-310(E), which states:

A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.

Billy claims that Johnson must have acquired information both prejudicial and detrimental to him as a result of the prior representation.

Johnson acknowledges that he represented Billy in a dissolution of marriage proceeding and in a domestic violence matter. Johnsons representation covered the period from August 23, 2000, to December 4, 2000.

Billys second amended complaint contains three causes of action. The first cause of action for breach of contract pertains to loans made by Billy to Donna in January and February 2001, which was breached in January 2004. The second cause of action for breach of contract pertains to a loan made in February 2001 and a breach on June 15, 2002. The third cause of action for the intentional tort of conversion alleges that the conversion took place on June 15, 2002. These dates correspond to the dates set forth in the first amended complaint.

Billy does not articulate how Johnson could acquire confidential information about transactions that allegedly took place after his representation of Billy ended, or what type of information Johnson could have acquired that pertains to the case against Donna.

A trial court has discretion in ruling on a motion to disqualify counsel. (Machado v. Superior Court (2007) 148 Cal.App.4th 875, 880.) Because Johnsons representation of Billy ended prior to the earliest date set forth in either the first or second amended complaint as to when any alleged contract was entered into or breached, or any personal property converted, we cannot conceive how Johnson could have acquired any confidential information about these matters during his brief representation of Billy in an earlier unrelated case.

Under these circumstances, we conclude the trial court did not abuse its discretion in denying the motion to disqualify.

DISPOSITION

The May 9, 2006, order dismissing the action with prejudice is reversed and the case is remanded to the superior court with directions to file the second amended complaint. The order denying the motion to disqualify Attorney John J. Johnson is affirmed. Costs are awarded to Billy Cochran.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

VARTABEDIAN, Acting P.J.

_____________________

DAWSON, J.

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^[1] We will refer to Billy Cochran and Donna Cochran by their first names, not out of disrespect but to avoid confusion to the reader.

^[2] All further statutory references are to the Code of Civil Procedure unless otherwise specified.