Gregory Smith v. Nationwide Mutual Insurance Company

representation is a form of “successive representation,” that should disqualify Ms. Ayala from representing Mr. Smith. (Ms. Smith’s Moving Papers, pgs. 8:24-9:2.)

“A trial court's authority to disqualify an attorney derives from its inherent power 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.’” (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 47, quoting Code Civ. Proc., § 128, subd.(a)(5).) “An attorney is required to avoid the representation of adverse interests and cannot, 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).)” (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 705.)

“[W]hether an attorney should be disqualified in a successive representation case turns on two variables: (1) the relationship between the legal problem involved in the former representation and the legal problem involved in the current representation, and (2) the relationship between the attorney and the former client with respect to the legal problem involved in the former representation.” (Jessen, supra, 111 Cal.App.4th at p. 709.)

First, it is uncontested that Ms. Ayala has only ever represented Mr. Smith in this action, and does not represent the marital estate, Ms. Smith, VCSC, or any other party. Furthermore, Ms. Ayala has never represented Ms. Smith individually and does not possess any confidential information pertaining to Ms. Smith. Ms. Ayala has also never represented the marital estate. (Ms. Ayala Decl., ¶7.)

Second, based on the SAC, subject to the current litigation is the alleged tenancy in common between Mr. Smith and Ms. Smith. (SAC.) Ms. Smith’s assertion that “[t]he Court already observed that all causes of action in this civil case relate to real property that is “community property” (Ms. Smith’s Reply Papers, pg. 3:18-19) in reference to the December 16, 2025 minute order is irrelevant. The Court sustained Nationwide’s demurrer to the FAC. The Court since then, sustained Visual Changes demurrer, with leave to amend.

Mr. Smith then amended and filed his SAC. Trying to pin this Court’s observation of the pleadings during a demurrer is not warranted, and in extremely poor taste. A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.

We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Third, Ms. Smith analogizes her situation to Jarvis v. Jarvis (2019) 33 Cal.App.5th 113 (“Jarvis”). However, Jarvis is readily distinguishable from the present facts. In Jarvis, brothers Todd and James Jarvis each owned a 50 percent interest in a partnership and could not agree what to do with a parcel of land owned by the partnership. (Jarvis, 4

supra, 33 Cal.App.5th at pp. 122–123.) James filed an action for partition by sale against Todd and the partnership. (Id. at p. 123.) Todd approved attorney William P. Roscoe III to defend the partnership and James moved to disqualify Roscoe on grounds that a majority of the general partners did not approve Roscoe to represent the partnership. (Id. at p. 124.) The trial court granted the motion to disqualify Roscoe and the Court of Appeal affirmed. (Id. at pp. 127, 145.)

In affirming the disqualification order, the court in Jarvis determined the applicable partnership agreement and partnerships laws did not resolve whether the representation was authorized. (Jarvis, supra, 33 Cal.App.5th at pp. 135–139.) The court turned to the “values and interests at stake in a disqualification motion” and concluded the trial court did not abuse its discretion in disqualifying Roscoe. (Id. at pgs. 139, 144.) The court in Jarvis found no abuse of discretion because James “raised legitimate points regarding Roscoe's duty of loyalty” to the partnership (Id. at pp. 139.)

Unlike Jarvis, there is no dispute here regarding who has authority to retain counsel for a corporation, community or to direct its litigation strategy. Mr. Smith is pursuing his own separate claims independently. Furthermore, the logical extension of Ms. Smith’s argument based on the present set of circumstances would mean Ms. Smith, as the sole owner of Visual Changes, could dictate the attorney Mr. Smith could hire to pursue his interests with respect to the Covered Property.

Ms. Smith also argues Ms. Ayala should be disqualified from representing Mr. Smith because “Ms. Smith will have Ms. Ayala testify at trial and propound discovery to her ahead of trial.” (Ms. Smith’s Moving Papers, pg. 12:6-7.) Ms. Smith seeks to disqualify Ms. Ayala because “Ms. Ayala wrote letters and emails, and received letters and emails, that bear directly on issues of notice, proper handling of insurance claims, securing real property from damage, and fulfillment of fiduciary duties.” (Ms. Smith’s Moving Papers, pg. 12:3-5.)

Rule 3.7 of the Rules of Professional Conduct states:

(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: (1) the lawyer's testimony relates to an uncontested issue or matter; (2) the lawyer's testimony relates to the nature and value of legal services rendered in the case; or (3) the lawyer has obtained informed written consent from the client. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed.

(Rules of Professional Conduct, Rule 3.7, subd. (a)(1)–(3).)

“In exercising its discretion to disqualify counsel under the advocate-witness rule, a court must consider: (1) “‘“whether counsel's testimony is, in fact, genuinely needed” ’”; (2) “the possibility [opposing] counsel is using the motion to disqualify for purely tactical 5

reasons”; and (3) “the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.” (Doe v. Yim (2020) 55 Cal.App.5th 573, 583).

Here, disqualification of Ms. Ayala is not warranted. The Court fails to see the necessity of calling Ms. Ayala as a witness “due to her personal knowledge and involvement in pre-litigation communications related to claims against Nationwide” (Ms. Smith’s Reply Papers, pg. 11:26-27), where Ms. Smith can seek that information through alternative sources such as the testimony of Ms. Smith’s divorce lawyer, who is not representing her in this litigation. (Ms. Smith’s Decl., Ex’s A-C.) Because the relevant facts can be established through independent sources, counsel’s testimony is neither unique nor necessary.

Second, the risk of confusing the trier of fact is low. The court is not concerned that it will confuse Ms. Ayala’s discussion of pre-litigation emails as “personal knowledge or as an advocate of a position.” (Ms. Smith Moving Papers, pg. 13:14-15.) Finally, Mr. Smith has a strong interest in counsel of his choice coupled with avoiding duplicate expense and time-consuming efforts in proceeding with a different advocate, who as Ms. Smith points out, has extensive knowledge of the claims Mr. Smith is asserting. “[I]t must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorney's innocent client, who must bear the monetary and other costs of finding a replacement.” (Gregori v.

Bank of America (1989) 207 Cal.App.3d 291, 300.)

Accordingly, for all the reasons stated above, the court denies Ms. Smith’s motion to disqualify Ms. Ayala and her firm from representing Mr. Smith.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: lmg on 6-9-26. (Judge’s initials) (Date)

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