White v. Superior Court

Opinion

ROTH, P. J.

We granted an alternative writ in this proceeding requiring real parties in interest (RPIs) to show cause why an order made by

[53]

respondent court disqualifying Lawrence C. Bragg from acting as attorney for petitioner pursuant to RPIs’ motion therefor should not be vacated.

Respondent court predicated its order on the ground that it appeared Mr. Bragg was an attorney who

ought

to be called as a witness in the trial of the underlying action before it in which RPIs are plaintiffs and petitioners are defendants.

In

Comden

v.

Superior Court

(1978) 20 Cal.3d 906 [145 Cal.Rptr. 9, 576 P.2d 971], it is stated at pages 913-914: “When it is impractical to determine with certainty whether an attorney ought to testify, the trial court ordinarily must make a determination notwithstanding the uncertainty, as delay in making a decision may well prejudice the client.”

The complaint in the underlying action which germinated this proceeding was filed by RPIs on November 1, 1978. Its two causes of action are predicated upon an aborted partnership agreement between RPIs and the petitioners executed on September 9, 1977. It is undisputed that Mr. Bragg represented the adversary parties in the drafting of the executed partnership agreement.

On January 4, 1979, Mr. Bragg, as attorney for petitioners/defendants in the underlying action moved respondent court for summary judgment which was denied without prejudice.

Between September 1, 1977, and January 4, 1979, the procedural chronology is as follows.

In March 1978, apparently before any disagreement between the parties, Hal H. Frazier (RPI) met with Bragg in Bragg’s office and following this advice signed a document involving the leasing of cattle rights to the real property involved in the partnership.