Scalzo v. Newmeyer & Dillion CA4/3

Filed 2/26/16 Scalzo v. Newmeyer & Dillion CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

FREDERICK T. SCALZO, Individually and as Trustee, etc., et al., G050835 Plaintiffs and Appellants, (Super. Ct. No. 30-2013-00693661) v. OPINION NEWMEYER & DILLION, LLP,

Defendant and Respondent.

Appeal from an order of the Superior Court of Orange County, John C. Gastelum, Judge. Request for judicial notice. Order affirmed. Request for judicial notice denied. Gemmill, Baldridge & Yguico and Carlos V. Yguico for Plaintiffs and Appellants. Baker & Baker and William E. Baker, Jr., for Defendant and Respondent.

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This action arises out of a fee dispute between plaintiffs Frederick T. Scalzo, individually and as Trustee for the Martin E. and Marion E. Scalzo Family Trust 1987, and Donna M. Ostermiller, and defendant Newmeyer & Dillion, LLP, which formerly represented plaintiffs in numerous actions. Upon being sued by plaintiffs, defendant retained Baker & Baker, APC (Baker) to represent it. Baker had represented parties adverse to plaintiffs or was named as a defendant in several cases brought by defendant on plaintiffs’ behalf. Plaintiffs moved to disqualify Baker on the basis it was a former adversary and attorney for their former adversaries, which resulted in a substantial relationship between this case and the ones in which defendant had formerly represented them. Plaintiffs also claimed Baker should be disqualified “[t]o preserve the ‘permanent confidentiality’ of attorney-client communications” between them and defendant. The trial court denied the motion on the ground neither theory applied and “absent clear authority allowing for disqualification under these circumstances, [it] cannot infringe on defendant’s freedom of choice in counsel.” On appeal, plaintiffs contend “the confidentiality associated with attorney- client communications” should take precedence over defendant’s right to select Baker as its legal representative because Baker was plaintiffs’ former adversary and attorney for their former adversaries. We disagree. Defendant seeks to impose sanctions against plaintiffs for prosecuting a frivolous appeal. But “[t]he sanctions request was presented in [defendant’s] brief, not by motion with supporting declaration, and thus did not comply with California Rules of Court, rule 8.276(b)(1). We do not consider it further.” (FEI Enterprises, Inc. v. Yoon (2011) 194 Cal.App.4th 790, 807.) We also deny defendant’s request for judicial notice because the subject documents are unnecessary to our decision. The order is affirmed.