Gao v. Lu
Filed 5/22/13 Gao v. Lu CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE
DISTRICT
DIVISION SEVEN
XIN GAO,
Plaintiff and Appellant,
v.
TONY M. LU,
Defendant and Respondent.
B242785
(Los Angeles
County
Super. Ct.
No. GC047450)
APPEAL from an order
of the Superior Court
of
County.
Jan A. Pluim, Judge. Affirmed.
Xin
Gao, in pro. per., for Plaintiff and Appellant.
Tony
M. Lu, in pro. per., for Defendant and Respondent.
_______________________
Plaintiff Xin Gao appeals from the denial of
his motion to disqualify Tony M. Lu as
counsel for the remaining defendants in this action. Finding no abuse of
discretion by the trial court, we affirm.
This case comes before this Court a
second time, after Xin Gao dba Deal To China’s (“Gaoâ€) appeal of the trial
court’s grant of Tony M. Lu’s (“Luâ€) special motion to strike in this case
alleging malicious prosecution, conspiracy, and abuse of process. We affirmed that ruling on December 17, 2012.
necessary to our determination here, we adopt the statement of facts from our
prior ruling.
Prior
to the last appeal, Lu, as counsel, filed a motion to set aside the default
that Gao had obtained against all other defendants. Over Gao’s opposition, the court granted the
motion on January 4, 2012,
deeming filed defendant’s demurrer to the complaint. The court overruled that demurrer on February 10, 2012.
On May
17, 2012, Gao filed his motion to disqualify Lu as counsel. After receiving written opposition and
conducting a hearing, the court denied the motion on July 3, 2012, without prejudice to its renewal if
Gao’s appeal of the special motion to strike were successful. Gao timely appealed.
The
denial of a motion to disqualify counsel is an appealable order. (Machado
v. Superior Court (2007) 148 Cal.App.4th 875, 882-883; Derivi Const. & Architecture, Inc. v.Wong (2004) 118
Cal.App.4th 1268, 1272.) We review such
orders for abuse of discretion. (
Cal.4th 706, 711-712 [“We have uniformly held that a motion to recuse is
directed to the sound discretion of the trial court, and its decision to grant
or deny the motion is reviewed only for an abuse of discretionâ€];
disqualification reversed only where there is no reasonable basis for the
decision].)
Gao’s claims against
Lu stemmed from Lu’s representation of the other defendants in the initial
litigation against Gao. Gao’s motion to
disqualify, filed more than five months after Lu’s first appearance as counsel
for those defendants, and after substantial proceedings had taken place,
asserted that Lu was therefore a material witness, and that his prior
representation gave rise to personal conflicts of interest in this
litigation. Gao also asserted that Lu,
both as a named defendant, and as counsel for the other defendants, had and
would continue to cause injury to Gao, including, among other things, by
obstructing Gao’s discovery.
Gao relied on
Cal.3d 906, and various professional guidelines for professional conduct. He asserted that the appearance of
impropriety constituted further grounds for granting the motion.
Comden rested on Rule of Professional Conduct 2-111, a rule which
required withdrawal by counsel when counsel, or a member of his or her firm,
should be called as a witness in the matter.
Rule 2-111 was repealed in 1989, and replaced with a rule that allows
continued employment with the client’s informed consent.
Even under the prior
rule, however, courts recognized the competing interests at stake, requiring
the court to balance between the appearance of impropriety on the one hand, and
the right of a client to representation by counsel of his choosing, including
the expense and detriment of replacing counsel familiar with the case, on the
other. (Comden v. Superior Court, supra,
20 Cal.3d at p. 915.) The amendments to
the Rules of Professional Conduct changed the emphasis in that balance, giving
more weight to a party’s choice of counsel absent a showing of detriment to the
moving party or the judicial process. (
Cal.App.3d 470, 482 [while trial court has discretion to order withdrawal of a
lawyer/witness, the resolution should favor the right to counsel of one’s
choice]; see also Liberty National
Enterprises v. Chicago Title Insurance Company (2011) 194 Cal.App.4th 839,
848 [interest of nonmoving client to counsel of its choice must be taken into
account, especially in absence of actual conflict or breach of
confidentiality].)
In this case, the trial court performed the
necessary balance, considering “the principal of professional integrity†as
balanced against the defendants’ interest in counsel of their choice.
be renewed if this Court overturned the trial court’s dismissal of Lu as a
party, the court demonstrated that its balance reflected the fact that Lu was
no longer a party, but instead the lawyer who had represented the other
defendants in all related matters. In
light of our affirmance of Lu’s dismissal, the balance struck remains
appropriate.
title="">[5] We find no abuse of discretion.
The order is affirmed.
Respondent is to recover his costs
on appeal.
ZELON,
J.
We concur:
PERLUSS, P.
J.
WOODS, J.
name="_ftn1" title="">[1]
Xin
Gao v. Lu, B238394 [non-pub.].
name="_ftn2" title="">[2]
Lu
moved to dismiss the appeal, asserting the action has been dismissed, but has
failed to file a copy of the order or judgment.
Accordingly, we deny his motion.
Gao has requested that Judge John Segal be recused; as Judge Segal is
not involved in the hearing or determination of this case, that request is
moot.
