Varoujan Kurkeyerian, et al. v. Erik Benham, et al.

“Ultimately, disqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility. [Citation.] The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.” (SpeeDee Oil, supra, 20 Cal.4th at p. 1145.) “[T]he foundational touchstones of any disqualification motion alleging an ethical violation are the current State Bar Rules of Professional Conduct.” (Munger Hortifrut North America, LLC. v. Dan Drake Enterprises, LLC (2026) 121 Cal.App.5th 371, 379.)

The Rules of Professional Conduct provide that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed written consent.” (Rules Prof. Conduct, rule 1.9(a).)

Additionally, “[a] lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed written consent.” (Rules Prof. Conduct, rule 1.9(b).)

Paragraph (b) addresses a lawyer's duties to a client who has become a former client because the lawyer no longer is associated with the law firm that represents or represented the client. In that situation, the lawyer has a conflict of interest only when the lawyer involved has actual knowledge of information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor lawyers in the second firm would violate this rule by representing another client in the same or a related matter even though the interests of the two clients conflict.

(Comment on Rules Prof. Conduct, rule 1.9.)

“When the current representation is adverse to the interests of a former client ... disqualification may be necessary only if the attorney, by reason of the former representation, obtained confidential information material to the current representation. If there is a substantial relationship between the two representations, courts presume that confidences which may have value in the current representation were disclosed in the first representation.” (Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1724; see also Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 114 [If the former client establishes the existence of a substantial relationship between the two representations the court will conclusively presume that the attorney possesses confidential information adverse to the former client and order disqualification].)

In order to disqualify the attorney, the former client must show that the subjects of the successive representations are substantially related. [Citation.] A substantial relationship exists where the attorney had a direct professional relationship with the former client in which the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation. [Citation.] If the former representation involved such a direct relationship with the client, the former client need not prove that the attorney possesses actual confidential information. [Citation.] The attorney is conclusively presumed to possess confidential information if the subject of the prior representation put the attorney in a position in which confidences material to the current representation would normally have been imparted to counsel. [Citation.]

(Khani v. Ford Motor Co. (2013) 215 Cal.App.4th 916, 920.)

“Mere prior professional association with the former client is not enough. [Citation.] The focus is upon the nature and extent of the former attorney's involvement, as well as the factual and legal similarity of the cases. [Citations.]” (In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 564.) Factors to be considered include the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney's involvement with the cases, including the time spent by the attorney on the earlier cases, the type of work performed, and the attorney's possible exposure to formulation of policy or strategy. (H. F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1455.)

In situations where the former attorney-client relationship was peripheral or attenuated, rather than direct and personal, “the court will not presume the attorney received confidential information absent a showing the attorney was in a position vis-à-vis the client to likely have acquired confidential information material to the current representation.” (Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465, 479, citations omitted.)

II. Evidentiary Conflict

Here, the Benham and Boyd declarations are in direct contradiction as to whether Boyd ever met or represented Benham or his entities and whether Boyd acquired or can be presumed to have acquired confidential information vis a vis Benham.

a. Benham

Benham declares that defendant Trincon, Inc. was a client of John Fricks (Fricks) from 1998, and then of Ogden & Fricks from approximately 2000 to 2013, when Trincon was absorbed by Bening Co. (Benham Decl., ¶ 1.) Benham declares that defendant Bening Co. was formed with the assistance of law firm Ogden & Fricks in approximately 2000, and that Bening Co. was represented by Ogden & Fricks as general counsel until Ogden & Ficks withdrew as counsel in 2019, as a direct result of the Kurkeyerian legal matter. (Benham Decl., ¶ 2.) Harvcal Inc. was formed with

the assistance of Ogden & Fricks in 2003, and the firm represented Harvcal until Kurkeyerian filed the current lawsuit in 2019. (Benham Decl., ¶ 4.)

Benham himself was a client of Fricks and then Ogden & Fricks from 1998 through 2019 and spent more than $1 million in legal fees. (Benham Decl., ¶ 5.) Benham declares that Boyd participated as associate counsel for Ogden & Fricks between 2001 and 2007, while Benham was working on water development for the Nipomo Mesa. (Benham Decl., ¶¶ 6, 7.) Benham details the issues raised in this action in which Ogden & Fricks were involved. (Boyd Decl., ¶¶ 8-11.)

Benham declares that he personally met with Boyd on an unknown number of occasions concerning the Nipomo-related Nipomo Community Services District (NCSD) issues which were a principal subject matter of the first trial; prior to the mistrial. These meetings were held both with and without Mr. Ogden & Mr. Fricks present. These meetings included and were not limited to review and preparation of discovery, preparation and review of pleading, declarations, and document review. (Benham Decl., ¶ 12.)

Benham declares that between 2001 and 2007, Boyd met with him on numerous occasions and discussed the same NCSD-related issues and parties relevant in this case. (Benham Decl., ¶ 13.) He details the matters and issues he contends involved himself, Boyd, and the current Kurkeyerian matter. (Ibid.) He further declares that he believes that Boyd is currently associated in some fashion with Ogden & Fricks and at a minimum shared office space and staff. (Benham Decl., ¶ 14.)

Benham further declares that he worked with legal assistant Linda Mayfield on his dispute with Kurkeyerian over the years 2019 to 2022 while she was the sole legal assistant for John Belsher, his attorney, and that there is a conflict arising from Ms. Mayfield’s involvement in related matters here. (Benham Decl., ¶¶ 15-17.)

b. Boyd, Fricks and Ogden

Boyd declares that he has never met Benham, never worked on any Benham-related matter before this case, and that he has no knowledge of Benham’s prior legal disputes or business dealings, or those of any entity he may own. (Boyd Decl., ¶¶ 3-5.)

Fricks declares that he represented entities in which Benham was principal in 1999 when he was a sole proprietor and continued to represent Benham and his various entities over several periods until approximately 2019. Fricks declares that Boyd was an associate at Ogden & Fricks from 2001 to 2007, that then and now he and Ogden kept and continue to keep their practices and teams separate, and that during his time at Ogden & Fricks, Boyd did not work on any matters involving Benham or his various business entities. Ogden’s representation of Benham and his entities began years after Boyd’s departure from the firm. (Fricks Decl., ¶ 4.)

In November 2024, Boyd became a subtenant of Ogden & Fricks where his law office pays rent and a portion of utilities. His files are stored separately and he does not have access to Ogden & Frick’s computers or files. (Fricks Decl., ¶ 5.)

Ogden’s declaration mirrors Fricks’s declaration. Ogden also declares that Boyd was employed as an associate at Ogden & Fricks from 2001 to 2007, and that during his time with the firm, Boyd did not work on any matters involving Benham or his various business entities. (Ogden Decl., ¶¶ 2-4.)

III.

Discussion

Benham contends that Boyd previously represented him in a substantially related matter and/or that Boyd shares office space with Ogden & Fricks, works where Benham’s confidential files are maintained, and uses a secretary (Linda Mayfield) who handled the same matters for former counsel, and is supported by lawyers from that office in this litigation who all represented Benham, in some manner.

Boyd declares that during his tenure at Ogden & Fricks he worked only for Ogden, left in 2007, and never worked on a Benham matter, met Benham, or obtained any material confidential information. Benham moved his business from Fricks to Ogden in 2014, after Boyd had been gone seven full years. Boyd further contends that not all matters involving NCSD are the same, and that the earlier Fricks/Benham NCSD matter was separate from the Ogden/Benham/Kurkeyerian partnership matter, which did not begin until around 2014, when Boyd had been gone for seven years.

Boyd points out that Benham does not submit any documents, papers or competent documentary evidence supporting his declaration that Boyd worked on either the earlier Fricks/NCSD matters or the later Ogden/Kurkeyerian/Benham matter.

The Court is not convinced that any conflict or acquisition of confidential information, presumed or otherwise, and requiring disqualification, arose or arises from Boyd’s time after he left Ogden & Fricks in 2007, either from Boyd’s renting of office space from Ogden & Fricks, or from his use of the services of Ms. Mayfield.

The Court may make evidentiary findings when ruling on a disqualification motion. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143– 1144.)

“[A] motion to disqualify normally should be decided on the basis of the declarations and documents submitted by the parties. An evidentiary hearing should be held only when the court cannot with confidence decide the issue on the written submissions. Such instances should be rare, as when an important evidentiary gap in the written record must be filled, or a critical question of credibility can be resolved only through live testimony. [Citation.] Of course, whether to conduct an evidentiary hearing is a matter left to the discretion of the trial court.” (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 583.)

Here, the Court cannot reconcile the competing declarations and intends to hold an evidentiary hearing. Therefore, the interested parties shall come prepared to discuss scheduling an evidentiary hearing. The Court will elicit testimony regarding any interactions between Benham and Boyd while Boyd was an associate at Ogden & Fricks. The Court will further request specific testimony to establish the similarities or differences between the factual situations and legal questions in the prior representation by Fricks during Boyd’s tenure as an associate and the current matter.

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