Motion to Dismiss; Motion to Disqualify Counsel
(34) Tentative Ruling
Re: Wheeler v. Savala Superior Court Case No. 23CECG02412
Hearing Date: July 1, 2026 (Dept. 502)
Motion: (1) by Plaintiff to Dismiss (2) by Plaintiff to Disqualify Counsel
If oral argument is timely requested, it will be entertained on Wednesday, July 15 2026, at 3:30 p.m. in Department 502.
Tentative Ruling:
To deny the motion to dismiss the complaint and enter judgment against defendant.
To deny the motion to disqualify James Makasian as attorney for defendant.
Explanation:
Motion to Dismiss and Enter Judgment
Plaintiff moves to dismiss the instant action and have judgment entered in his favor on the basis that defendant failed to file separate proofs of service for unidentified motions.
The case at bench was dismissed by ex parte application on April 9, 2026 on the basis that plaintiff failed to timely file an amended complaint following the demurrer having been sustained to the operative complaint. (Cal. Rules of Court, rule 3.1320(g), (h).) To the extent plaintiff’s motion can be interpreted as claiming his case was dismissed without notice of the motion this is not supported by the court’s minute order showing he was present at the April 9, 2026 hearing on the ex parte application to dismiss the case.
In the event plaintiff’s intention by way of this motion is to set aside the dismissal, plaintiff has provided no evidence to support such a motion. “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473(b).) Relief can be based either on an “attorney affidavit of fault,” in which event, relief is mandatory; or declarations or other evidence showing “mistake, inadvertence, surprise or ‘excusable neglect,'” in which event relief is discretionary. (Ibid.) Plaintiff has provided no explanation as to how his action was dismissed by reason of mistake, inadvertence, surprise or excusable neglect. As discussed above, the plaintiff was present at the hearing on
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defendant’s ex parte application to dismiss the case pursuant to Rules of Court, Rule 3.1320(h) and cannot claim he had no notice of the hearing.
Accordingly, to the extent plaintiff’s motion can be interpreted as a motion to set aside the dismissal entered with prejudice on April 9, 2026, the motion is denied.
Motion to Disqualify
“A trial court's authority to disqualify an attorney derives from the power inherent in every court ‘[t]o 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.’ (Code Civ. Proc., § 128, subd. (a)(5); [citations].)” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.)
Motions to disqualify generally arise in one of two contexts: (1) in cases of successive representation, where an attorney seeks to represent a client with interests that are potentially adverse to a former client; and (2) in cases of simultaneous representation, where an attorney seeks to represent in a single action multiple parties with potentially adverse interests. (Western Sugar Coop. v. Archer-Daniels-Midland Co. (C.D. Cal. 2015) 98 F.Supp.3d 1074, 1080.) Successive representation implicates an attorney’s duty of confidentiality. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283.) Simultaneous representation implicates an attorney’s duty of loyalty. (Id. at p. 284.)
In the motion at bench, neither context is implicated. Plaintiff Shawn Wheeler, for a second time, moves to disqualify defendant Sylvia Savala’s counsel, James Makasian, due to purported misconduct based on counsel and client previously having been married. Plaintiff cites to no authority, and the court is aware of none, to support his argument that a prior marital relationship between an attorney and client would constitute misconduct by the attorney or support the disqualification of counsel. The court does not intend to interfere with defendant’s right to counsel of her choice in the absence of a conflict of interest.
The motion to disqualify Mr. Makasian as attorney for defendant is denied.
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 6-29-26. (Judge’s initials) (Date)
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