Filed 12/12/17 Frost v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



JULIA FROST,

Petitioner,

v.

THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,

Respondent;

HESPERIA UNIFIED SCHOOL DISTRICT,

Real Party in Interest.


E067209

(Super.Ct.No. CIVDS1313980)

OPINION


ORIGINAL PROCEEDING; petition for writ of mandate. Brian S. McCarville, Judge. Petition granted.
Hadsell Stormer & Renick, Dan Stormer, Acrivi Coromelas, Cindy Panuco; Lambda Legal Defense and Education Fund, Jennifer C. Pizer and Carmina Ocampo for Petitioner.
No appearance for Respondent.
Atkinson, Andelson, Loya, Ruud & Romo, Mark W. Thompson and Brooke E. Jimenez for Real Party in Interest.
The petition challenges a trial court order disqualifying petitioner’s counsel on the theory that counsel had a conflict arising out of a previous representation. Because the way in which the trial court allowed and disallowed evidence supporting and opposing the motion adversely impaired petitioner’s due process rights, we grant the petition and remand for a new hearing.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner, Julia Frost, brings 10 employment-related causes of action against real party in interest, Hesperia Unified School District (HUSD), which had employed her as a high school teacher in 2011 and 2012. She alleges HUSD “discriminated against, harassed and retaliated against” her because she is a lesbian who was open about her own sexuality, who complained about perceived discrimination, and who advocated for the rights of students who identified as nonheterosexual.
In addition to alleging specific facts supporting these contentions, the operative first amended complaint asserts that petitioner’s union representative reported petitioner’s allegations of discrimination, harassment, and retaliation to the assistant superintendent, named Karen Kelly. Petitioner then makes the following specific allegation: “Despite the fact that Assistant Superintendent Kelly herself had litigated a discrimination case against HUSD for years which she eventually settled for reinstatement to her former position and $500,000, Ms. Kelly told Mr. Resvaloso that she did not believe that HUSD would ever discriminate.”
Petitioner filed her first amended complaint on August 6, 2014. On August 8, 2016, HUSD moved to disqualify petitioner’s counsel, Hadsell Stormer & Renick LLP (Hadsell). HUSD argued disqualification was required because its “primary representative” was Kelly, and Kelly had consulted a predecessor of Hadsell when preparing to file the lawsuit petitioner mentioned in her operative pleading. Kelly provided a declaration explaining that she had “consulted” Hadsell’s predecessor about this case in December 2009 and January 2010. The rest of the declaration reads, as relevant to the petition:
“As a part of my consultation in December 2009, I provided Hadsell Stormer Keeny Richardson and Renick,[ ] LLP, a binder full of confidential documents related to my allegations of discrimination, wrongful termination, and retaliation against the District, its Board of Education, individual members of the Board, the then-Superintendent, and other executives and/or officers of the District. Some of these people are associated with the facts alleged in Plaintiff’s lawsuit. I also completed and provided to Hadsell . . . an intake questionnaire containing similar confidential information. [¶] On January 19, 2010, Hadsell . . . sent me a letter declining to take my case. They did not state a reason. They returned my binder and my intake questionnaire. I do not know whether they retained any copies. . . . [¶] . . . [¶] Upon information and belief, [Hadsell] had access to and made use of confidential information from my prior lawsuit against the District prior to and/or during its representation of Plaintiff in this matter, including during the time it conducted discovery, took witness depositions and engaged in settlement mediation. [¶] I believe the law firm of [Hadsell] breached its duty of confidentiality by using my confidential information to Plaintiffs advantage in her lawsuit against my present employer, and in doing so has caused harm to my reputation and professional employment.”
Petitioner filed written opposition to the motion to disqualify her counsel. She complained HUSD had waited until immediately before trial to move to disqualify her counsel, and she offered evidence that Kelly had already attended multiple depositions at the offices Hadsell uses by the time the motion was filed. In addition to waiver, petitioner argued the motion failed because Hadsell never represented Kelly, because there is only an insubstantial relationship between petitioner’s case and Kelly’s even if there was a representation, and because the only Hadsell lawyer who ever knew anything about Kelly’s case left the firm in 2010. In response to the motion’s suggestion that petitioner’s operative pleading would not mention Kelly’s lawsuit if the two cases were not closely linked, the opposition explained: “The only mention of Kelly’s lawsuit was made to demonstrate the blind eye HUSD administrators took when they were repeatedly on notice that Ms. Frost’s termination was due to sexual orientation discrimination and harassment.” Petitioner also lodged separate evidentiary objections to the effect that Kelly’s declaration lacked foundation and was too “conclusory.”
In support of petitioner’s opposition to the motion, Dan Stormer, one of petitioner’s attorneys, filed a declaration attesting that he has no confidential information regarding Kelly’s case, and that all other attorneys at the firm provided the same answer when Stormer inquired of them after getting a July 21, 2016 letter from HUSD’s counsel about the representation issue. According to Stormer, the firm’s records showed a contract attorney named Kathleen Erskine had worked on Kelly’s file. In Stormer’s own words: “Based on my review of the records maintained by my firm, Hadsell . . . has only one entry pertaining to Kelly’s lawsuit. That entry is a timesheet entry in which Kathleen Erskine wrote that she reviewed Kelly’s intake for half an hour. Had she met with Kelly, there would have been such an entry. Had the case gone further, it would have been discussed at a Friday morning attorneys’ meeting in which we address potential cases. It appears no presentation at a Friday meeting ever took place. There are no records indicating that Kathleen Erskine ever met with Kelly or discussed with Kelly her allegations against HUSD. There is also no indication that any other attorney at Hadsell . . . ever had any knowledge about Kelly’s attempt to seek representation from the firm.” Stormer further explained that Erskine stopped working for the firm in 2010, and that Hadsell’s normal business practice is to return any material received from a prospective client.
Like Stormer, another of petitioner’s attorneys, Acrivi Coromelas, affirmatively attested that her first knowledge of Kelly’s lawsuit came from petitioner’s operative pleading and from two newspaper articles about the case, the latter of which Coromelas attached to her declaration. These articles indicate Kelly’s lawsuit alleged sex-based discrimination on the theory that she was disciplined for engaging in a relationship with a man who was a contractor for the HUSD while married to someone else, while male administrators who engaged in similar conduct were subjected to better treatment. Research into the trial court’s online case information system told Coromelas that Kelly’s suit against HUSD had been filed in 2009. Coromelas’s declaration also attached a copy of petitioner’s government claim to HUSD, which is dated in 2013 and shows that Hadsell was “of counsel” with Traber & Voorhees, as well as photographs showing that Hadsell’s name appeared above that of Traber & Voorhees on the building the two firms shared when Kelly attended depositions there. Finally, Coromelas averred that Kelly had attended depositions in petitioner’s case, at the building with Hadsell’s name on it, on September 11, October 22, and November 17, 2015, and then again on March 3 and July 7, 2016, both of which occurrences were after Hadsell filed its notice of association.
HUSD’s reply repeated the contention that Kelly’s completion of an intake questionnaire and submission of confidential materials to Hadsell created a conflict requiring Hadsell’s disqualification in petitioner’s lawsuit. In a section titled “Supplemental Statement of Facts,” the reply also summarized what Kelly said in a supplemental declaration accompanying the reply. In the new declaration, Kelly alleged: “I first heard of the law firm Hadsell . . . during my research for law firms to take my case. I reviewed a copy of Super Lawyers magazine and found Hadsell . . . listed therein. I contacted other law firms from this same source. Hadsell . . . was one of several firms I contacted. [¶] In late December 2009, I contacted Hadsell . . . via telephone and spoke to a male attorney. I talked at length to this attorney about the details of my case. I made a sales pitch to the attorney about my allegations of discrimination, harassment, wrongful termination, and retaliation. The conversation lasted between 15-30 minutes. [¶] After the telephone conversation, Hadsell . . . provided me with their intake questionnaire. I completed it on December 27, 2009. A true and correct copy of the intake questionnaire is attached hereto as Exhibit B. [¶] On December 28, 2009, I sent the completed intake questionnaire to Hadsell . . . via UPS overnight. . . . [¶] Approximately three weeks later, on January 19, 2010, a different Hadsell . . . attorney named Kathleen Erskine returned my binder to me via U.S. mail with a letter declining to take my case. Included with the letter was a photocopy of the intake questionnaire I had submitted. The original questionnaire was not returned to me by Hadsell.”
With respect to her recollection that she had previously contacted Hadsell, Kelly explained that she had not visited the firm’s offices when she sought its services in 2009. When she attended depositions related to petitioner’s case at Traber & Voorhees’ offices, Kelly did not read or notice the lettering on doors other than the one to the office Traber & Voorhees used. After Hadsell filed its notice of association, Kelly attended a deposition in the same downstairs conference room in which she had attended depositions when Traber & Voorhees were counsel, but she thought Hadsell was using the same room because it “had just substituted in.” Kelly then described attending another deposition in petitioner’s case and, this time, using the upstairs conference room for the first time: “On July 7, 2016, when I first entered the upstairs conference room for Hadsell . . . I noticed a ‘Super Lawyers’ picture. This picture naming Hadsell . . . as ‘Super Lawyers’ triggered for the first time a vague recollection of the name of the firm. After the deposition I decided to check my records to see if I had consulted this firm for my own legal matters.” Because her records were in storage due to a home renovation, Kelly says she did not locate the letter from Erskine until July 16 or 17, 2016.
One of the exhibits to Kelly’s supplemental declaration is a copy of her completed intake questionnaire to Hadsell, in which she describes a claim for retaliation and discrimination based on sex and marital status. When asked to describe the facts of her potential lawsuit, the first thing she wrote was: “I was placed on admin leave for choosing to separate from my husband and start a new relationship.” Kelly also alleged she was retaliated against for whistleblowing and refusing to engage in illegal activity, but she did not specify in which illegal acts her supervisors allegedly asked her to engage.
Petitioner filed an objection to the supplemental Kelly declaration; she argued it was improper for HUSD to include new evidence with its reply. In addition, petitioner accused Kelly of committing perjury by claiming to have had her recollection refreshed by the “ ‘Super Lawyers’ photograph” in the upstairs conference room at Hadsell’s office because, as established by a supplemental declaration from Coromelas, there is a “ ‘Super Lawyers’ photograph” at the entrance to the downstairs conference room, but no such photograph in the upstairs one. Coromelas noted that Kelly had attended four depositions in the downstairs conference room that contained the “ ‘Super Lawyers’ photograph” before attending her first deposition in the upstairs conference room.
HUSD filed a written response to petitioner’s objection to the supplemental declaration by Kelly. It objected there was no procedure allowing for such an objection and argued there was nothing improper with submitting that declaration with the reply, because Kelly was only adding more detail to what her original declaration had already said. In response to the perjury allegation, HUSD asserted Coromelas had not refuted the assertion that something in the upstairs conference room had refreshed Kelly’s recollection, even if that item was not “ ‘Super Lawyer’ memorabilia.”
The trial court held a hearing on HUSD’s motion on September 7, 2016. The order after that hearing reads, as pertinent: “the Court ordered that Karen Kelly produce the binder she claims she produced to Hadsell . . . with respect to Defendant Hesperia Unified School District’s Motion to Disqualify. . . . Plaintiff objected to the Court reviewing Karen Kelly’s binder and requested that Defendant be ordered to produce a privilege log detailing the contents of the binder so that Plaintiff could meaningfully respond. The Court overruled Plaintiffs objection. Karen Kelly, being present at the hearing, swore under oath that the documents she had were the entire contents of the binder of documents she provided Hadsell . . . in December 2009, and the Court then took those documents for an in camera review.” A further hearing was set for September 16, 2016.
Petitioner responded by moving ex parte for the court to take into evidence a declaration Kelly had filed in 2011 in her own lawsuit against HUSD. She argued Kelly had attached as exhibits to the declaration documents that were likely included in the items she had given the court for in camera review. If so, petitioner contended, any such documents were no longer confidential and therefore could not support granting the motion. In the declaration from her own lawsuit, Kelly described telling a HUSD board member that she had separated from her husband and was “engaged in a personal relationship with . . . a partner at HUSD’s primary law firm” The board member asked if she was prepared to lose her job over those acts, and, when Kelly told the superintendent about her new relationship, he demanded a letter of resignation. HUSD’s board later voted to terminate Kelly’s employment agreement and demoted her. Kelly provided, as exhibits, copies of her employment agreement, some HUSD policies, various letters from HUSD to Kelly regarding the administrative proceeding that led to her demotion, an email from HUSD’s superintendent regarding a situation involving an unnamed employee matching Kelly’s facts and description, and two letters to HUSD from two different attorneys who at some point in time represented Kelly in her claim against HUSD. In her ex parte application, petitioner argued she had no other way to rebut HUSD’s evidence and would be irreparably harmed if the court did not allow her some opportunity to respond to whatever documents had been given to the court in confidence. The trial court denied petitioner’s ex parte application on September 12, 2016.
On September 15, 2016, HUSD filed a supplemental response to petitioner’s objection to Kelly’s supplemental declaration. Accompanying it was a declaration from David E. Robinett, one of HUSD’s attorneys. He produced photographs of some plaques that were located in Hadsell’s upstairs conference room and included the words, “Super Lawyers,” but did not contain photographs with people in them.
The hearing on HUSD’s motion to disqualify petitioner’s counsel occurred on September 16, 2016. The trial court declined to consider the Robinett declaration, which had been filed the previous day. After taking the matter under submission, the court issued a written ruling granting the motion to disqualify petitioner’s counsel on September 19, 2016. The court noted the evidence about Kelly’s contact with Hadsell “is in conflict,” but nonetheless found “it more probable than not that Karen Kelly-Pelayes did not come to realize of the potential relationship with the Hadsell firm until late July of 2016.” The remainder of the court’s order, as relevant, explains: “Not only did an attorney from Hadsell speak with Karen Kelly-Pelayes regarding the facts of her case, but Hadsell had Kelly-Pelayes complete a questionnaire regarding her case and reviewed confidential documentation provided by Karen Kelly-Pelayes before it was decided not to take her case. The evidence before the Court also suggests that Hadsell may have provided legal advice and/or services to Karen Kelly-Pelayes on substantially similar matters, that is employment discrimination by Hesperia Unified School District’s administrators and employees. Based upon the documentation provided to the Court, the prior representation and/or consultation by Hadsell with Karen Kelly-Pelayes is substantially related to the current representation of the Plaintiff Julia Frost, such that the Court must disqualify the Hadsell firm. There appears to be a substantial risk that the present representation will involve the use of information acquired in the course of the prior representation and/or consultation of Karen Kelly-Pelayes.”
For these reasons, the trial court granted HUSD’s motion to disqualify. It stayed all proceedings in the trial court until January 3, 2017, and petitioner filed a notice of appeal, followed by this petition.
DISCUSSION
“While an order disqualifying an attorney is appealable [citation], the order also is subject to review by an extraordinary writ petition [citation]. Indeed, ‘[a] petition for extraordinary relief on the merits accompanied by a request for an immediate stay is preferable, because generally extraordinary writs are determined more speedily than appeals. The specter of [improper] disqualification of counsel should not be allowed to hover over the proceedings for an extended period of time for an appeal.’ ” (State Water Resources Control Bd. v. Superior Court (2002) 97 Cal.App.4th 907, 913-914.) For these reasons, we now resolve the parties’ dispute regarding Hadsell’s disqualification in the writ proceeding rather than waiting for the conclusion of the appeal.
“Generally, a trial court’s decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial court’s express or implied findings supported by substantial evidence. [Citations.] When substantial evidence supports the trial court’s factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. [Citation.] However, the trial court’s discretion is limited by the applicable legal principles. [Citation.] Thus, where there are no material disputed factual issues, the appellate court reviews the trial court’s determination as a question of law. [Citation.] In any event, a disqualification motion involves concerns that justify careful review of the trial court’s exercise of discretion.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143-1144 (SpeeDee Oil Change).)
Here, the facts were highly disputed, with counsel for the parties going so far as to exchange declarations making perjury accusations. Because the trial court observed Kelly’s demeanor and we did not, we must defer to its determination that she was credible in claiming not to have recalled consulting Hadsell until well into the litigation in this case. (People v. Booth (2016) 3 Cal.App.5th 1284, 1305-1306.) Still, in our view, the extent to which the relationship between the parties, witnesses, and/or their counsel had obviously become contentious made it all the more important for the trial court to ensure that all parties had an equal right to be heard and to respond to each other’s positions. After all, “Such motions ‘can be used to harass opposing counsel, to delay the litigation, to intimidate an adversary into accepting settlement on otherwise unacceptable terms, or for other strategic purposes.’ ” (Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 434.) We do not mean to imply, and we certainly do not hold, that HUSD moved to disqualify petitioner’s counsel in this case for an improper purpose; we could make no such finding on the record before us. We do, however, suggest that as the acerbity between counsel increased, the trial court’s obligation to safeguard due process rights did the same.
As we have indicated, our issue with the trial court’s order from which this petition arose relates not to the order’s substantive merits but to the way in which the order came about. Before explaining our reasoning in more detail, we now turn to the rules regarding what HUSD needed to prove to prevail on its motion to disqualify petitioner’s counsel.
An attorney “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.” (Rules Prof. Conduct, rule 3–310(E).) This is the rule on which HUSD’s motion relied.
“Where the conflict ‘is one that arises from the successive representation of clients with potentially adverse interests . . . the governing test requires that the client demonstrate a “substantial relationship” between the subjects of the antecedent and current representations.’ [Citation.] ‘[A] “substantial relationship” exists whenever the “subjects” of the prior and the current representations are linked in some rational manner.’ [Citation.] ‘The “substantial relationship” test mediates between two interests that are in tension in such a context—the freedom of the subsequent client to counsel of choice, on the one hand, and the interest of the former client in ensuring the permanent confidentiality of matters disclosed to the attorney in the course of the prior representation, on the other.’ [Citation.] ‘When a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation or the relationship of the attorney to his former client confidential information material to the current dispute would normally have been imparted to the attorney . . . , the attorney’s knowledge of confidential information is presumed.’ [Citation.] In such cases, disqualification of the attorney’s representation of the second client is mandatory.” (Kim v. The True Church Members of Holy Hill Community Church (2015) 236 Cal.App.4th 1435, 1453-1454.)
Here, we do not see a substantial relationship between petitioner’s lawsuit against HUSD and Kelly’s, at least based on the record filed in this court. Petitioner sued HUSD for discrimination, harassment, and retaliation on the basis of her sexual orientation after HUSD decided not to renew her contract as a high school teacher. From the intake questionnaire she provided, it appears Kelly sued HUSD for discrimination and retaliation because she was demoted to director of personnel and then assistant principal after leaving her husband for a HUSD lawyer. While both lawsuits named HUSD as a defendant and both asserted discrimination and retaliation as overarching theories, the connection between the facts underlying these theories in the two cases strikes us as less than substantially related.
First, the motives behind and acts undertaken in the course of discrimination and retaliation based on sexual orientation are not necessarily the same as those that occur in the context of discrimination and retaliation based on sex or marital status. Second, Kelly’s intake questionnaire described facts that occurred before she signed the document on December 27, 2009, but petitioner did not begin work at HUSD until 2011. Finally, it is not apparent to us from the record we have that the two lawsuits involve the same witnesses or other evidence. HUSD had the burden of proof on its motion to disqualify (Evid. Code, § 500), but the most it offered on this topic was the assertion in Kelly’s original declaration that some, unnamed “individual members of [HUSD’s] Board, the then-Superintendent, and other executives and/or officers of the District . . . are associated with the facts alleged in [petitioner’s] lawsuit.”
While we have questions about the sufficiency of the evidence supporting the trial court’s finding that Kelly had provided Hadsell with confidential information that was sufficiently connected to petitioner’s lawsuit against HUSD, we do not resolve those questions in this opinion. In fact, we cannot, because we have not seen the documents the trial court reviewed in camera. The order petitioner asks us to review drew conclusions based on “[t]he evidence before the Court” and “the documentation provided to the Court,” but we have not seen everything this encompasses, because HUSD did not file in this the court the documents the trial court reviewed in camera.
Petitioner, of course, has also not seen these documents. We cannot and do not order anyone to provide them to her; after all, “[p]rotecting the confidentiality of communications between attorney and client is fundamental to our legal system.” (SpeeDee Oil Change, supra, 20 Cal.4th at p. 1146.) We therefore agree with the return that HUSD had the right to ask the trial court to review these documents confidentially.
Having the right to have the documents confidentially reviewed, however, does not mean that HUSD also had the right to completely deprive petitioner of all knowledge of the documents it asked the court to review in camera. Rather, “our adversarial system of justice . . . is premised on the well-tested principle that truth—as well as fairness—is ‘ “best discovered by powerful statements on both sides of the question.” ’ ” (Penson v. Ohio (1988) 488 U.S. 75, 84.) As one California court phrased the rule in a different context: “Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) The consequences of losing the counsel of one’s choice are also drastic. (See, e.g., Sharp v. Next Entertainment, Inc., supra, 163 Cal.App.4th at p. 434 [disqualification “may impose a significant hardship”].) It therefore seems to us that due process principles require that a litigant facing the loss of her counsel receive enough notice of the evidence supporting the motion to disqualify that she can fairly respond to that motion.
In this case, multiple factors, any one of which conceivably have been within the scope of the trial court’s discretion had there been no aggregation, combined to so limit petitioner’s ability to respond to HUSD’s motion to disqualify that we feel obligated to intervene. First, the trial court reviewed the documents it received from Kelly in chambers. Neither the court nor HUSD gave petitioner a privilege log or other summary of what the documents were. Second, although “ ‘[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument’ ” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538), the court found that “an attorney from Hadsell sp[oke] with [Kelly] regarding the facts of her case” even though Kelly did not make this allegation until the supplemental declaration she submitted in reply. Petitioner had no opportunity to respond to this new averment, or to any other factual assertion Kelly did not make until her second declaration. Finally, when petitioner responded to the court’s plan to review documents in camera without a privilege log by asking the court to consider the declaration Kelly had filed in her own lawsuit against HUSD, the trial court denied the request without explanation.
In each of these ways, the evidence before the trial court when it ruled on HUSD’s motion to disqualify counsel was one-sided, and in HUSD’s favor. Especially in a case marked by such animosity that attorneys representing the parties were exchanging declarations including perjury allegations and attempting to engage the court in a debate about whether a plaque that said “Super Lawyers” but did not have a photograph of any people was or was not a “ ‘Super Lawyers’ photograph,” petitioner’s due process rights were owed more attention than they received. We therefore grant the petition and remand for a new hearing on HUSD’s motion to disqualify Hadsell.
We do not, however, demand that the trial court provide a privilege log, sustain petitioner’s objections to the supplemental Kelly declaration, and/or allow petitioner to file a surreply. Our only instruction on remand is that the trial court safeguard petitioner’s due process rights in accordance with this opinion, or, in other words, that it give petitioner enough information and opportunity to be heard that she can fairly rebut the motion to disqualify her counsel. The trial court is familiar with this case, these parties, and their counsel, and it has seen the documents it reviewed in camera while we have not. Consequently, the trial court is best situated to devise the mechanics of rehearing HUSD’s motion to disqualify on remand.
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate the order disqualifying petitioner’s counsel and to conduct a new hearing on the motion to disqualify in accordance with this opinion.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioner is awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


CUNNISON
J.
We concur:

McKINSTER
Acting P. J.


MILLER
J.