Marriage of Kammerer

Filed 6/28/06 Marriage of Kammerer CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Maria Kammerer (wife) and respondent David Kammerer (husband) separated in March 2003. They have one minor child, Karla Kammerer, who was 16 years of age in 2004. The community estate consists of a residence, family business (which the parties have owned for approximately 14 years) and several brokerage accounts.

After the parties separated, wife entered into a relationship with an attorney, Brett L. Francisco (Francisco) who subsequently moved into the community home. After several months he undertook wife's representation in the dissolution proceedings. Husband filed a motion to disqualify wife's counsel and the trial court granted his request. The sole issue on appeal is the trial court's disqualification ruling. We affirm.

FACTS

Attorney Brett L. Francisco moved into the community residence in approximately January 2004. In June 2004, wife discharged her counsel and Francisco substituted in as her attorney. Francisco began working out of the family home and using it as his address of record. He attempted to schedule depositions at the location of the family business. In August 2004 husband obtained a temporary restraining order (TRO), preventing Francisco from coming within 500 yards of him. Francisco stipulated to the restraining order which was purportedly based on death threats he made to husband. Wife has filed her opening brief in this appeal in pro. per. She indicates in her reply brief that she is now represented by attorney Rhett T. Francisco, the son of Brett L. Francisco.

Motion for Disqualification

On February 22, 2005, husband filed a notice of motion for needs-based attorney's fees; an order prohibiting wife and Francisco from using the family home or business as his address of record; and to disqualify Francisco as wife's counsel. Husband also requested that Francisco be joined as a third party. Husband acknowledged that the court had ordered the appointment of a discovery referee, but also requested the court to designate the matter as complex litigation and issue a case management order.

Husband alleged in his declaration that he had incurred over $60,000 in legal fees to his former counsel and claimed that wife had paid only $10,000 to Francisco, but owes him $67,000. Husband argued that disqualification was further justified because, due to the TRO, Francisco would be prohibited from attending any depositions at which husband was present.

Wife filed opposition, arguing that husband's application for fees should be denied because he had failed to comply with certain court rules in the format and filing of his documents and had also failed to file a current income and expense declaration. She requested sanctions for husband's failure to comply with her discovery requests.

The matter was heard on April 13, 2005, before Commissioner Bruce A. Young. The court ruled on wife's motions to compel and request for sanctions and reserved the attorney's fee request for trial. None of these matters are at issue here. The court asked Francisco to address the disqualification motion, stating ". . . in addition to being the attorney, it's alleged that your law office is now the family residence, that you reside with the petitioner and are her significant other. And I assume from reading the paperwork that, at least, your objection is that your relationship predates your representation of her in this case and, therefore, this is not a violation of the Business and Professions Code. Would that be accurate, sir?" Francisco answered, "Yes, sir." The court took judicial notice of the case in which the restraining order had been issued against Francisco (Case No. SD 031084).

After taking the matters under submission, the court issued a written ruling. It designated the case as complex litigation, noting that the motions and discovery encompassed six files. "The Court finds this to be a 'high conflict' Dissolution of Marriage case with . . . complex legal and factual issues." The court appointed a discovery referee at a rate of $275 per hour. It denied husband's request to join Francisco as a party because husband made an insufficient showing that Francisco had a claimed or controlling interest in the community property.

The court granted husband's motion for the disqualification of Francisco. It indicated that, while Francisco's conduct did not violate ethical rules concerning sexual conduct with a client (Bus. & Prof. Code, § 6106.9; Rules of Prof. Conduct, rule 3-210), it nevertheless interfered with the court's power to provide for the orderly conduct of proceedings pursuant to Code of Civil Procedure section 128, subdivision (a)(3) and (5).^[1]

The court indicated that the matter was further complicated by the existence of the restraining order, particularly if Francisco, as the restrained party, wished to depose husband, the protected party. "This Court is convinced that [it] cannot fulfill its duties and responsibilities to the Court, to counsel and most importantly to the parties under CCP Section 128 if that potential scenario were allowed to occur." ^[2] The court also relied on established authority that counsel must be disqualified if he or she may be required to testify as a witness in a case where counsel also represents a party.

Motion for Reconsideration

On May 4, 2005, wife filed a motion in pro. per. for reconsideration of the trial court's ruling.^[3] We address only its disqualification order. Wife claimed that 1) she did not receive proper notice of the statutory basis, section 128, for the trial court's order; 2) the ruling was based on a prior version of a rule of professional conduct; and 3) the court improperly took judicial notice of the case involving the restraining order against Francisco (Case No. 031084). She contends the motion was a "tactical maneuver intended to gain an unfair advantage" and the ruling will cause her "significant harm" due to the cost of engaging new counsel to become familiar with the case.

Wife appeared at the hearing on the motion for reconsideration in pro. per. The court noted that she had not alleged new and different facts pursuant to section 1008 and denied the motion. Wife presents the same arguments on appeal raised in her motion for reconsideration.

DISCUSSION

In its written order, the trial court relied on portions of section 128, that provide, "(a) Every court shall have the power to do all of the following: . . . [¶] (3) To provide for the orderly conduct of proceedings before it, or its officers. . . . [¶] (5) 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, in every matter pertaining thereto." The court "is vested with the solemn duty to maintain the professionalism and ethics in the matters that are brought before it." (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1132.)

Section 128 further provides that the court has authority to enforce order in its immediate presence and compel obedience to its judgments, orders, and process, in an action or pending proceeding. (Id. subd. (a)(1), (2), (4) & (8).) A motion for disqualification of counsel is derived from this power. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) We review a disqualification motion for an abuse of discretion. (Id. at pp. 1143-1144; City of Santa Barbara v. Superior Court (2004) 122 Cal.App.4th 17, 22.)

Both parties direct our attention to Comden v. Superior Court (1978) 20 Cal.3d 906. There, the appellate court, relying on a rule of professional conduct, concluded that an attorney must withdraw from representation when that attorney or a member of his firm will be called as a witness. (Rules of Prof. Conduct of the State Bar, former rule 2-111(A)(4).)^[4] The Comden court stated that "we must be mindful of the possibility that testimony by a member of trial counsel's firm may lead the public to be skeptical of lawyers as witnesses, thereby diminishing the public's respect and confidence toward the profession." (Comden, at p. 912.)

Wife argues that we must reject the holding in Comden because it was based upon former rule 2-111(A)(4), which was superseded by rule 5-210, effective in 1989. Rule 5-210 provides that an attorney may not act as both an advocate and a witness before a jury. It does not, however, prohibit an attorney from acting as an advocate and testifying before a judge. (Discussion Com. 23, pt. 5, West's Ann. Cal. Codes (2005 ed.) foll. rule 5-210, p. 376; see generally Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 579.)

Wife reasons that Francisco should therefore be permitted to testify in a bench trial and argue the case to the court. Her argument fails because the facts make Comden inapposite. Here, we are not considering the narrow issue of whether Francisco may be both witness and counsel; we address instead the broader picture of whether Francisco's representation will interfere with the orderly conduct of the judicial proceedings. Comden is applicable insofar as it established the trial court's authority to control the matter before it. However, the specific rules of professional conduct cited by wife, although discussed in Comden, have no bearing on this particular dispute.

The trial court was confronted with a challenge to its ability to maintain order in these proceedings. The parties were highly contentious, were engaged in a protracted discovery dispute, and had not even begun to resolve the issues of visitation, support and property division. Wife's "'significant other'" was her counsel, who had exhibited grave animosity towards husband and was living in the family home. As the court pointed out, there were procedural and practical problems presented by the fact that husband had obtained a restraining order against Francisco. The court acted well within its discretion under section 128 in granting the motion for disqualification.

Wife provides no authority for her assertion that the court was obligated to give her notice of the grounds of its written ruling. Equally without merit is wife's contention that the trial court erred in taking judicial notice of the TRO. The court was authorized to judicially notice the case pursuant to Evidence Code section 452, subdivision (d). Moreover, Francisco did not object to the court's inquiry regarding the TRO at the hearing on the motion for disqualification. He acknowledged that he had stipulated to the TRO and even supplied the case number to the court for its convenience. Francisco's conduct towards husband was a necessary factor for the court to consider in determining the appropriateness of Francisco's representation of wife, particularly in an adversarial proceeding.

In light of our ruling, we need not address wife's argument that the court failed to apply a "balancing of equities" test in considering hardship to wife. Nor need we consider her argument that husband did not file the correct judicial council form (application for order and supporting declaration) with his motion. There was no abuse of discretion.

The judgment (order of disqualification) is affirmed. Costs on appeal are awarded to respondent.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Bruce A. Young, Judge

Superior Court County of Ventura

______________________________

Law Office of Rhett T. Francisco and Rhett T. Francisco for Appellant.

Law Offices of Steven Rein and Steven Rein for Respondent.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego Real Estate Attorney.

^[1] All further references are to the Code of Civil Procedure, unless otherwise stated.

^[2] The court appropriately cited to section 128 several times throughout its written ruling. There is one typographical error in which it referred to the code section as 138. The court noted this error during the motion for reconsideration.

^[3] Attached to the motion for reconsideration was the declaration of attorney William Houser, stating that he had agreed to draft the motion without becoming wife's attorney of record.

^[4] In Comden v. Superior Court, supra, 20 Cal.3d 906, the court relied on the following portion of former rule 2-111(A)(4): "'If upon or after undertaking employment, a member of the State Bar knows or should know that he or a lawyer in his firm ought to be called as a witness on behalf of his client in litigation concerning the subject matter of such employment he shall withdraw from the conduct of the trial and his firm . . . shall not continue representation in the trial . . . .'" (Id. at p. 911, fn. 1.) The rule contains four exceptions: an attorney or a lawyer in his firm may continue representation if his testimony will relate solely to an uncontested matter; a matter of formality; the nature and value of legal services rendered; or if refusal would work a substantial hardship on the client due to the distinctive value of the lawyer or his firm. (Ibid.)