Stovall v. Cox CA1/3

Filed 3/21/16 Stovall v. Cox CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

JEANNA STOVALL, Plaintiff and Respondent, A146084 v. KIERAN A. COX, (Alameda County Super. Ct. No. AF12639961) Defendant and Appellant.

Kieran A. Cox (appellant) appeals an order disqualifying his father, attorney Donald Cox (Mr. Cox), from representing appellant in this and other proceedings related to the custody and support of appellant’s son. We find no abuse of discretion and shall affirm the disqualification order. Factual and Procedural History In July 2012, the minor’s mother filed the present action against appellant seeking custody of their young son and child support. In May 2013, mother sought to disqualify Mr. Cox from representing appellant on the grounds, among others, that the rules of professional conduct strongly recommend that an attorney refrain from representing a family member due to the appearance of impropriety and because Mr. Cox had previously served as a witness in a related matter. Apparently, mother’s motion was never heard and the issue was not addressed until the court, on its own motion, raised it at a hearing on March 23, 2015. The court set a briefing schedule and a hearing for May 5, 2015.

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At the May 5 hearing, the parties argued extensively regarding disqualification. The court took the matter under submission and provided an opportunity for supplemental briefing. On June 29, 2015, the court issued an extensive order disqualifying Mr. Cox from representing appellant in these and other related proceedings. Appellant timely filed a notice of appeal. Discussion “An order granting or denying a disqualification motion . . . is reviewed for abuse of discretion [citation]. The trial court's ruling is presumed correct [citation] and reversal is permissible ‘only when there is no reasonable basis for the trial court's decision’ [citation]. We accept as correct all of the court’s express or implied findings that are supported by substantial evidence. [Citation.] [¶] ‘In viewing the evidence, we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. [Citation.] Where the trial court has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable.’ ” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203 (Kennedy).) In Kennedy, as is this case, the court reviewed an order granting a mother’s request to disqualify the paternal grandfather from representing the father in a child custody and support action. (Kennedy, supra, 201 Cal.App.4th at p. 1200.) The court identified two grounds, among others, for the disqualification of father’s attorney. First, the court found that disqualification was necessary under the advocate-witness rule, which prohibits an attorney from acting both as an advocate and a witness in the same proceeding. (Id. at pp. 1208-1211 [advocate-witness rule applies in court trials.].) The court explained, “Decades ago, the California Supreme Court firmly embraced the ethical prohibition against an attorney taking on the dual roles of advocate and witness: ‘An attorney who attempts to be both advocate and witness impairs his credibility as witness and diminishes his effectiveness as advocate.’ [Citation.] More recently, our Supreme Court declared that where it becomes likely that an attorney will testify as a material witness, he