Filed 3/8/22 Firsov v. Zhukovsky CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

MEMORANDUM OPINION

We resolve this case by memorandum opinion under California Standards of Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853–855.)

Sergey Firsov petitioned for a civil harassment restraining order against Constantin Zhukovsky. The record does not contain the petition or any detail regarding the basis for it. According to Firsov’s opening brief, he applied for the restraining order because Zhukovsky wrote a letter to the presiding judge of the Santa Clara County Superior Court containing confidential information Firsov did not want disclosed. Firsov represented himself in the trial court and does so here. He appeals an order denying his motion to disqualify opposing counsel.

A trial court has authority to disqualify a party’s attorney when justice requires it. (McMillan v. Shadow Ridge at Oak Park Homeowner’s Assn. (2008) 165 Cal.App.4th 960, 965.) An order denying a motion to disqualify counsel is appealable. (Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 424.) We review the order for abuse of discretion. (McMillan v. Shadow Ridge at Oak Park Homeowner’s Assn., supra, 165 Cal.App.4th 960, 964–965.) Under that standard, we will not reverse the decision unless it is arbitrary or outside what the applicable law allows. Important here, we also defer to the trial court’s resolution of factual disputes. (Id. at p. 965)

Firsov’s motion to disqualify alleged that opposing counsel lied about when his client was served with Firsov’s restraining order petition. In denying the motion, the trial court expressly found that the respondent’s counsel did not lie or otherwise mislead the court. As a result, the court concluded Firsov had not established a basis to disqualify opposing counsel. As the trial court was better positioned to make credibility determinations, we must defer to its resolution of factual disputes. We therefore find no error in its decision to deny the motion.

Firsov asserts in his opening brief two other reasons why, in his view, the trial court should have disqualified opposing counsel: because one lawyer cannot represent another lawyer in a civil harassment action; and because the respondent (and by extension opposing counsel) has confidential information about him. It is not clear whether Firsov made either of those arguments in the trial court. (The record does not contain any of Firsov’s moving papers; it contains only the trial court’s order denying the motion and his notice of appeal.) With recognized exceptions not applicable here, issues not raised in the trial court cannot be raised for the first time on appeal. (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) Because the record does not demonstrate that Firsov brought those issues to the trial court, they cannot be raised on appeal. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574–575 [“a party challenging a judgment has the burden of showing reversible error by an adequate record”]; see also Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [rejecting claim that cannot be evaluated without adequate record].)

Even if properly raised, the additional arguments do not lead to reversal. Firsov cites no authority for the proposition that one lawyer cannot represent another lawyer in a civil harassment action. And he provides no evidentiary support for his allegation that opposing counsel possesses confidential information requiring disqualification.

Firsov asserts in passing that the trial court denied his motion because he represents himself, while the judge was formerly an attorney and the respondent is an attorney in “the same legal community.” We take Firsov’s point to be that he believes the judge was biased against him because of his self-represented status. Firsov provides no evidentiary support for his assertion of judicial bias and we see no indication of bias in the record.

The trial court did not abuse its discretion in denying Firsov’s motion to disqualify opposing counsel.

DISPOSITION

The order is affirmed. Costs are awarded to respondent by operation of rule 8.278, subdivision (a)(1) of the California Rules of Court.

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Grover, Acting P. J.

WE CONCUR:

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Lie, J.

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Wilson, J.

H048544 - Firsov v. Zhukovsky