California Court of Appeal Sep 3, 2014 No. D064505Unpublished
Filed 9/3/14 Marriage of Tani CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of STUART and MARCY L. TANI. D064505 STUART T. TANI,
Appellant, (Super. Ct. No. DN1669854)
v.
MARCY L. TANI,
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, David G.
Brown, Judge. Affirmed.
Patrick J. McCrary for Appellant.
No appearance by Respondent.
Appellant Stuart T. Tani, D.D.S. (Stuart) appeals prejudgment orders relating to
temporary spousal support, made in the dissolution action between Stuart and his former
wife, Marcy L. Tani (Marcy).1 Stuart contends the family court abused its discretion in
deciding these consolidated motions by (1) incorrectly determining his income in
awarding spousal support, (2) denying his requests to compel Marcy to attend a
deposition, or to continue the hearing due to untimely responsive filings by Marcy, and
(3) denying his request to disqualify Marcy's retained attorney for an alleged conflict of
interest. (Fam. Code, § 4320 et seq.; all further statutory references are to the Family
"We are not bound to develop appellants' argument for them. [Citation.] The absence of
cogent legal argument or citation to authority allows this court to treat the contention as
waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)
We review the challenged award of spousal support for any abuse of discretion.
(In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1366 (de Guigne).) Although
the family court has broad discretion to determine an amount of spousal support that is
"just and reasonable, based on the standard of living established during the marriage," the
court's decision must be based on the evidence, such as the resources of the parties.
(Ibid.)
In considering if an abuse of discretion has occurred, the appellate court reviews
the record provided: "Our review is limited to determining whether the court's factual
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determinations are supported by substantial evidence and whether the court acted
reasonably in exercising its discretion. [Citation.] We do not substitute our judgment for
that of the trial court, but confine ourselves to determining whether any judge could have
reasonably made the challenged order." (de Guigne, supra, 97 Cal.App.4th 1353, 1360.)
Regarding Stuart's claim about the denial of the continuance of the hearing, the
test is again abuse of discretion. "A motion for continuance is addressed to the sound
discretion of the trial court. [Citation.] However, ' "[t]he trial judge must exercise his
discretion with due regard to all interests involved, and the refusal of a continuance
which has the practical effect of denying the applicant a fair hearing is reversible error.
[Citations.]" ' " (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395
(Oliveros), citing In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.)
The court should take into consideration the degree of diligence in any efforts made to
bring the case to trial or hearing. (Oliveros, supra, at p. 1396.)
Further, when a court decides whether to grant a continuance or extend discovery,
its decision must be directed toward achieving substantial justice, by deciding whether
" ' "the strong public policy favoring disposition on the merits outweighs the competing
policy favoring judicial efficiency." ' " (Oliveros, supra, 120 Cal.App.4th at p. 1396.)
III
ANALYSIS: SPOUSAL SUPPORT AND RELATED ORDERS
Stuart primarily contends that the record does not support a finding that his
monthly income was approximately $18,353, and that more accurate information was
needed before temporary spousal support could be properly awarded. Extensive lodged
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documents were provided by both sides with respect to the income and expenses of
Stuart's personal businesses from 2009 through 2012. His monthly income from all
sources that he controlled had averaged out to at least $20,000 per month. Stuart
supplied his 2011 tax returns showing personal wages of $48,000 and Allegiance's total
income of $220,235.
In Marcy's income and expense declaration, she represented that she worked 20
hours a week for payment of a gross amount of $1,587.60. Her expenses averaged
$4,697 per month.
In issuing its ruling, the court chastised counsel for failing to produce more exact
financial information in a more timely manner, and due to the length of time that the
matter had been pending, it used the available information to set a temporary guideline
spousal support award at $6,533 a month, retroactive to April 2012. Based on the money
shown to be available to Stuart in his business bank accounts over a period of 2009 to
2012, as well as his personal and business tax returns, the monthly income figure arrived
at by the judge is in the right ballpark. The court had continued the matter a number of
times and had been presented with evidence to support the guidelines calculation and
corresponding award of $6,533 temporary monthly spousal support. The court noted that
other reserved issues would be resolved in the upcoming September 2013 two-day trial.
As the appellant, Stuart has failed to carry his burden of showing that error or a
prejudicial abuse of discretion occurred. (Maria P. v. Riles, supra, 43 Cal.3d 1281,
1291.) He has made only cursory arguments and has not provided a clear picture of the
entire record. We are justified in treating Stuart's support contentions as waived or at the
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very least, unmeritorious and unsupported. (In re Marriage of Falcone & Fyke, supra,
164 Cal.App.4th 814, 830.)
Moreover, the circumstances in the record support the court's related discretionary
determination to deny a further continuance, since the matter had been going on for more
than a year and a half, both sides had supplied the required papers in an untimely manner,
and Stuart's filings were made later than Marcy's filings. The court was likewise justified
in denying the motion to compel Marcy's deposition, since Stuart could not show that any
realistic efforts to accommodate the situation had been made since she retained her
current attorney. In any case, extensive showings about relevant financial information
had been brought forward by each side by the time of the hearing, and the court could
reasonably determine that sufficient evidence was available to decide the issues
presented. (See Oliveros, supra, 120 Cal.App.4th at p. 1396.) These orders are
supported by the record as being well within the bounds of reason.
IV
ATTORNEY DISQUALIFICATION MOTION
A. Criteria
Disqualification motions involve a conflict between clients' rights to counsel of
their choice and the need to maintain ethical standards of professional responsibility.
"The paramount concern is the preservation of public trust in the scrupulous
administration of justice and the integrity of the bar." (Jessen v. Hartford Casualty Ins.
Co. (2003) 111 Cal.App.4th 698, 705 (Jessen).) This concept is sometimes broadly
stated as prohibiting an attorney or law firm from doing " 'anything which will injuriously
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affect his former client.' " (People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150,
155.) The relevant policy is the preservation of client confidentiality. (Flatt v. Superior
Court (1994) 9 Cal.4th 275, 283 (Flatt).)
Where a former client seeks to have a previous attorney disqualified from serving
as counsel to a successor client in litigation that is adverse to the interests of the original
client, "the governing test requires that the client demonstrate a 'substantial relationship'
between the subjects of the antecedent and current representations." (Flatt, supra,
9 Cal.4th at p. 282, original italics; People v. SpeeDee Oil Change Systems, Inc. (1999)
20 Cal.4th 1135, 1146.) Thus, "A former client may disqualify a former attorney from
representing an adverse party by showing the attorney presumably possesses confidential
information adverse to the former client. Such a presumption arises if the former client
can establish a 'substantial relationship' between the prior and current representations. A
'substantial relationship' is shown by the factual and legal similarities in the two
representations and the extent of the attorney's involvement with the cases." (Fox
Searchlight Pictures, Inc. v. Paladino, supra, 89 Cal.App.4th 294, 300; fns. omitted.)
As explained in H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991)
229 Cal.App.3d 1445 (Ahmanson), the resolution of successive disqualification issues
goes beyond discerning the ordinary meaning of the words "substantial" and
"relationship," to an examination of "the practical consequences of the attorney's
representation of the former client. The courts ask whether confidential information
material to the current dispute would normally have been imparted to the attorney by
virtue of the nature of the former representation.'' (Id. at p. 1454.) The courts look to
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" '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.' " (Id. at p. 1455.)
In Ahmanson, supra, 229 Cal.App.3d at page 1457, the court observed " 'there is
reason to differentiate for disqualification purposes between lawyers who become heavily
involved in the facts of a particular matter and those who enter briefly on the periphery
for a limited and specific purpose relating solely to legal questions.' " (Id. at p. 1457.)
The substantial relationship test is only " 'intended to protect the confidences of former
clients when an attorney has been in a position to learn them.' " (Id. at p. 1455.)
B. Application of Rules: No Substantial Relationship
We examine the nature of the relationship between the former representation and
the current representation, as well as the nature of the attorney's past relationship with the
former client. (Farris v. Fireman's Fund. Ins. Co. (2004) 119 Cal.App.4th 671, 679-680,
citing Ahmanson, supra, 229 Cal.App.3d at p. 1453.) Using this practical approach, we
cannot find on this record that the trial court erred or abused its discretion in refusing
Stuart's request to disqualify Attorney Salmonsen from representation of Marcy. There
was apparently little or no similarity between the discrete legal problem involved in the
former federal representation and the issues involved in the current case. (Jessen, supra,
111 Cal.App.4th at pp. 709, 711-714.) The 1999 copyright question in the prior
relationship was not shown to be substantially the same as the broader issues about the
parties' assets as raised in these dissolution proceedings. (Flatt, supra, 9 Cal.4th at
pp. 282-285; Ahmanson, supra, at p. 1455.)
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"[T]o apply the remedy of disqualification 'when there is no realistic chance that
confidences were disclosed would go far beyond the purpose' of the substantial
relationship test." (Ahmanson, supra, 229 Cal.App.3d at p. 1455.) Stuart did not show
on appeal that he participated in disclosing any confidential information to Attorney
Salmonsen that could be material to the present dissolution litigation, or that the extent of
the community business assets came into play during the prior case. (See ibid.) Rather,
he admits he previously left business matters to Marcy and John. (See City National
Bank v. Adams (2002) 96 Cal.App.4th 315, 327-328.)
In any event, Stuart has not shown that Attorney Salmonsen's "former and current
employment are on opposite sides of the very same matter," or that the same work or
strategies are again involved. (City National Bank v. Adams, supra, 96 Cal.App.4th 315,
328; Cal. Rules Prof. Conduct, rule 3-310; Ahmanson, supra, 229 Cal.App.3d at
pp. 1453-1455.) This record does not demonstrate that the trial court abused its
discretion in denying the motion to disqualify Attorney Salmonsen. (See Flatt, supra,
9 Cal.4th at p. 284; People v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th 1135,
20 Cal.4th 1135, 1143-1147.)
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DISPOSITION
Affirmed. Each party to bear its own costs on appeal.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's orders regarding temporary spousal support, discovery, and the denial of a motion to disqualify opposing counsel, finding no abuse of discretion in the lower court's evidentiary and procedural rulings.
Issues
Did the family court abuse its discretion in determining the appellant's income for temporary spousal support?
Did the family court abuse its discretion in denying the appellant's motions to compel a deposition, continue the hearing, and disqualify opposing counsel?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“In light of the record provided, the court's related discretionary determinations to deny a continuance, deny the disqualification request, and deny the motion to compel Marcy's deposition were each supported by the evidence and within the bounds of reason.”
“The court had continued the matter a number of times and had been presented with evidence to support the guidelines calculation and corresponding award of $6,533 temporary monthly spousal support.”
“There was apparently little or no similarity between the discrete legal problem involved in the former federal representation and the issues involved in the current case.”