Filed 4/17/14 Gunnuscio v. Kainth CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

TAMMIA GUNNUSCIO,

Plaintiff and Respondent,

v.

EDWIN KAINTH,

Defendant and Appellant.

F065448

(Super. Ct. No. CV002361)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Donald J. 

Proietti, Judge.

Calfed Law Corporation and J. M. Irigoyen for Defendant and Appellant.

Brenda J. Pannell for Plaintiff and Respondent.

-ooOooINTRODUCTION

Appellant Edwin Kainth, also known as Edwin K. Anthony, maintains the trial 

court erred in disregarding his subjective beliefs about the existence of an attorney-client 

 

*Before Cornell, Acting P.J., Gomes, J. and Peña, J.
2.

relationship in its consideration of his motion to disqualify Brenda J. Pannell, counsel for 

respondent Tammia Gunnuscio. Appellant also contends the trial court erred by not 

considering disqualification because Pannell breached a duty of fidelity owed to him, an 

expectation she created by her conduct. Finally, he argues the trial court erred by 

disregarding evidence of confidential business information received by Pannell from him.

We will affirm.

RELEVANT PROCEDURAL AND FACTUAL BACKGROUND

Respondent filed suit alleging sexual discrimination at her place of employment, 

the Courtyard By Marriott Merced. Attorney Pannell represented respondent in the 

action filed in the Merced Superior Court. Thereafter, appellant, Max’s Partnership, 

Kasturi Lal, and Courtyard Marriott Merced, Inc., as defendants and cross-complainants, 

moved to disqualify attorney Pannell in the action on the basis she had previously 

rendered legal services to them and had gained access to confidential information in that 

capacity. Respondent opposed the motion. Numerous declarations were submitted both 

in support of and in opposition to the motion.

On July 12, 2012, the motion was heard by the trial court. Both parties presented 

argument. At the conclusion of the hearing, the trial court denied the motion.

On July 23, 2012, appellant filed a notice of appeal.

PRELIMINARY MATTERS

A. Failure to Comply with the Rules of Court

Before addressing the merits of appellant’s arguments, we note appellant has 

failed to comply with the requirements of rule 8.204 of the California Rules of Court. 

More specifically, rule 8.204(a)(2)(C) requires appellants to “[p]rovide a summary of the 

significant facts limited to matters in the record.” Appellant’s statement of facts fails to 

provide a full and fair description of the proceedings below,

1 as he has omitted any 

 

1The leading California appellate practice guide instructs as follows: “Before addressing 

the legal issues, your brief should accurately and fairly state the critical facts (including the 
3.

reference to respondent’s opposition to his motion. (Foreman & Clark Corp. v. Fallon

(1971) 3 Cal.3d 875, 881 [all material evidence should be set forth, not merely one’s own 

evidence]; accord, In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) Appellate counsel 

is advised to avoid this practice in the future.

We note also that on July 10, 2013, this court granted respondent’s motion to 

augment the record to include her opposition to the motion to disqualify counsel, the 

notice of errata in support of the opposition, and the supplemental declaration of Pannell. 

Hence, we are confident the record now consists of the significant facts necessary to 

accord proper appellate review.

B. Standing to Appeal

Respondent argues in her brief that appellant lacks standing to bring this appeal 

because he did not introduce evidence that Pannell was his personal attorney and failed to 

establish that Pannell was the attorney for Courtyard By Marriott Merced. Hence, the 

reasoning goes, because Courtyard By Marriott Merced is not a party to the appeal, 

appellant has no personal standing to appeal a ruling that affected only the business 

entity.

In California, the right to appeal civil actions is statutory. (Jordan v. Malone

(1992) 5 Cal.App.4th 18, 21.) In order to exercise that statutory right, an appellant must 

have standing. (Ibid.)

Appellate standing is conferred by section 902 of the Code of Civil Procedure.

(Rao v. Campo (1991) 233 Cal.App.3d 1557, 1564.) That statute provides, in relevant 

part, that “[a]ny party aggrieved may appeal ....” (Code Civ. Proc., § 902.) By its plain 

 

evidence), free of bias; and likewise as to the applicable law. [Citation.] [¶] Misstatements, 

misrepresentations and/or material omissions of the relevant facts or law can instantly ‘undo’ an 

otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your 

credibility, may draw sanctions [citation], and may well cause you to lose the case!” (Eisenberg 

et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 9:27, p. 9–8, 

italics omitted.)
4.

language, section 902 limits appellate standing in two important ways. To have appellate 

standing, one must (1) be a party and (2) be aggrieved. (Ibid.; see also Conservatorship 

of Gregory D. (2013) 214 Cal.App.4th 62, 67.)

The issue of whether a party has standing to appeal is a question of law. (IBM 

Personal Pension Plan v. City and County of San Francisco (2005) 131 Cal.App.4th 

1291, 1299.) Standing to appeal is jurisdictional and cannot be waived. (Marsh v. 

Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.) Thus, if a party lacks standing 

to appeal, this court has no jurisdiction to consider the appeal, and it must be dismissed.

Here, appellant was a party to the proceedings below. As a general matter, only 

parties of record in the trial court have standing to appeal. (See County of Alameda v. 

Carleson (1971) 5 Cal.3d 730, 736.) And, as acknowledged by respondent, all 

defendants moved to disqualify attorney Pannell. “One is considered ‘aggrieved’ whose 

rights or interests are injuriously affected by the judgment” or order. (Id. at p. 737; cf. In 

re K.C. (2011) 52 Cal.4th 231, 236 [“An aggrieved person ... is one whose rights or 

interests are injuriously affected by the decision in an immediate and substantial way, and 

not as a nominal or remote consequence of the decision”].) The trial court’s denial of the 

motion can be said to affect appellant’s rights or interests in a manner that is neither 

nominal nor remote.

In sum, appellant was a party to the proceedings below and we find him to be 

aggrieved in the sense the trial court’s order denying the motion affected his interests, 

either personally or as a partner in Max’s Partnership, the franchisee of the Courtyard By 

Marriott Merced. Thus, we hold appellant has standing to appeal the denial of the motion 

for disqualification.

C. Request for Judicial Notice

On July 9, 2013, appellant filed a “Motion For Judicial Notice Request” with this 

court, asking us to take judicial notice of a complaint filed in Merced Superior Court case 

No. CV002644, on May 2, 2012, entitled Minor v. Kainth et al. He also asks us to take 
5.

judicial notice of points and authorities filed in opposition to a motion to dismiss filed in 

the United States District Court for the Eastern District of California, Fresno Division, in 

case No. 1:13-cv-00255 AWI BAM on May 27, 2013, in the subsequently removed 

action of the same name.2 On July 25, 2013, respondent filed her opposition thereto. On 

July 29, 2013, we issued an order deferring our ruling pending the outcome of the instant 

appeal.

Even if we assume that, without deciding, it is appropriate for us to take judicial 

notice of the aforementioned documents, the documents do not prove what appellant 

asserts they do.

Appellant contends the complaint and the points and authorities refer to a 

confidential franchise agreement between a partnership he is affiliated with—Max’s 

Partnership—and Marriott International. Appellant “suggests that Ms. Pannell indeed 

received such confidential information during her relationship with Appellant which may 

necessitate a remand for [an] evidentiary hearing” because it goes to her credibility, a 

basis for the trial court’s denial of his motion for disqualification. But appellant’s 

assumption that the franchise agreement was confidential in nature, and thus could only 

have been discovered by attorney Pannell by nefarious means, is just that: an 

assumption. In fact, respondent’s opposition provides evidence defeating his assumption. 

In her opposition of July 25, 2013, respondent explained Pannell learned of the franchise 

agreement when Marriott International responded to a demand letter predating the filing 

of the complaint in the state court and the points and authorities in the federal court. 

Further, as exhibits to attorney Pannell’s declaration in opposition to appellant’s request, 

 

2Appellant’s request cites to Evidence Code section 459 and rule 8.809 of the California 

Rules of Court. The former provides this court “may take judicial notice of any matter 

specified” in Evidence Code section 452, to wit: “Records of (1) any court of this state or (2) 

any court of record of the United States ....” (Id., subd. (d).) An appellate court may deny 

judicial notice of materials falling within Evidence Code section 452 if the materials are 

irrelevant. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1089, fn. 4.)
6.

respondent provided copies of both the demand letter directed to Marriott International,

and its response referencing “a franchise agreement with Max’s Partnership ....”

As a result, we deny appellant’s request to take judicial notice of the documents 

identified in his request.

D. The Applicable Standard of Review

Appellant maintains the standard of review of the issues presently before the court 

is de novo, “[b]ecause the trial court did not resolve disputed factual issues.” 

Respondent, on the other hand, contends the trial court resolved contested issues of fact

and, thus, the proper standard of review is abuse of discretion. Respondent is correct.

“Generally, a trial court’s decision on a disqualification motion is 

reviewed for abuse of discretion. [Citations.] If the trial court resolved 

disputed factual issues, the reviewing court should not substitute its 

judgment for the trial court’s express or implied findings supported by 

substantial evidence. [Citations.] When substantial evidence supports the 

trial court’s factual findings, the appellate court reviews the conclusions 

based on those findings for abuse of discretion. [Citation.] However, the 

trial court’s discretion is limited by the applicable legal principles. 

[Citation.] Thus, where there are no material disputed factual issues, the 

appellate court reviews the trial court’s determination as a question of law. 

[Citation.] In any event, a disqualification motion involves concerns that 

justify careful review of the trial court’s exercise of discretion. [Citation.]”

(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc.

(1999) 20 Cal.4th 1135, 1143-1144.)

It is plain from the record before this court that the trial court resolved disputed 

factual issues. In order to determine whether an attorney-client relationship existed in 

consideration of appellant’s motion to disqualify Pannell, the trial court weighed 

appellant’s affidavits and declarations in support of the motion against those presented by 

respondent in opposition to the motion, where the two were clearly at odds with one 
7.

another in nearly every respect.3 Clearly, the court’s determination required resolution of 

those disputed factual issues prior to any application of the law.

With the proper standard of review in mind, we turn to consideration of 

appellant’s contentions on appeal.

DISCUSSION

1. The Trial Court’s Tentative and Final Rulings

Appellant’s motion was heard July 12, 2012. Prior to considering argument by 

counsel, the trial court stated the following:

“All right. This morning we have on calendar three motions that 

were filed by the defense. One we continued over from a previous hearing, 

which the Court had announced a tentative ruling, and that’s the motion to 

disqualify Ms. Pannell as the attorney of record for the plaintiff. And I 

have, since the last hearing, received additional declarations from the 

defense, from employees of the Courtyard Merced. I also received 

supplemental points and authorities and argument from the defense. Most 

recently I’ve received an amended notice of Request for Judicial Notice

from the plaintiff, as well as a further declaration from Ms. Pannell 

responding to additional items that were raised by the defendant, Edwin 

Kainth. And I’ve read all and each and every one of the declarations. I’ve 

read the points and authorities and reviewed my initial ruling.

“The Court’s initial ruling—and it remains the same tentative—

based upon everything that I’ve read, I am not convinced that the defense 

has established that there is a—or was an attorney-client relationship. To 

support that, you did provide the Court with some proof of occupancy or 

residency at the Courtyard Merced with a discounted or arguably comp rate 

apparently to suggest that there was some form of consideration paid for 

advice received. The Court is not convinced that that establishes the 

attorney-client relationship.

“I also find that the subjective belief of Mr. Kainth does not, in 

itself, create the attorney-client relationship.

 

3At the hearing on the motion, counsel for appellant observed that Pannell “denied almost 

all the factual basis of the motion.” The trial court later noted that “everything is factually 

disputed.”
8.

“Even if there was substantial evidence to establish the attorneyclient relationship, I further find that Ms. Pannell, based upon the 

accusations and allegations, did not receive any communication that would 

be considered confidential related to this case.”

Thereafter, counsel for appellant and counsel for respondent argued their respective 

positions to the court. The court then found as follows:

“... What I have to resolve today is do I believe that there’s been 

sufficient evidence presented by declaration, by representations of counsel 

to establish an attorney-client relationship between Ms. Pannell and 

Mr. Kainth, and I previously indicated that I do not believe that the 

subjective belief, according to the Fox [v. Pollack (1986) 181 Cal.App.3d 

954] case, is sufficient for one side to believe there’s a relationship, and the 

other says there is not.

“I certainly can understand the disappointment, and perhaps even the 

surprise of a—particularly in a small town where we have limited 

hospitality, hotels, motels, and people know one another maybe on a more 

personal basis than when you might be in a large city, when all of a sudden 

you find somebody who you were friendly with, certainly not adversarial 

with or on opposite sides of the litigation. I can understand the surprise and 

perhaps even the concern.

“That doesn’t create a situation, however, for legal disqualification. 

Even under the Ethical Rules of Conduct, the 5-210 that you cite in your 

brief, is a personal relationship, ethical obligation between attorney and 

client. That does not give a third party such as Mr. Kainth the right to make 

a motion to disqualify under those grounds.

“I don’t find that he has any special rights to intervene into that 

relationship and demand disqualification. If, in fact, he had proved to my 

satisfaction that there was an attorney-client relationship that existed, more 

indicia than, You stayed at my hotel, more indicia than, You gave me your 

business card, more indicia than, You marketed yourself to me and you 

wanted me to be your client. That’s what I interpreted happened here, I 

needed more.

“There’s no retainer agreement. There’s no billing relationship. 

There’s no interoffice relationship between attorney-client. There’s no 

work that’s been performed. There’s no letters being written on behalf of 

the parties. And it is more a—I believe, a feeling of disappointment that 

somebody that Mr. Kainth knew and thought about, perhaps, retaining in 
9.

the future is now his—bringing a lawsuit on behalf of one of his former 

employees or current employees.

“So I don’t find that there is sufficient evidence to support the 

motion to disqualify, and that is the Court’s ruling. I will adopt the 

tentative.

“And, further, I will make findings that I do not find that there has 

been sufficient information presented or evidence presented to conclude 

that Ms. Pannell has received confidential information that would provide 

an advantage to her in this litigation.”

2. Appellant’s Subjective Belief in an Attorney-Client Relationship

Appellant contends the trial court erred in disregarding his subjective belief in the 

existence of an attorney-client relationship, claiming the court found it “functionally 

irrelevant, without considering it in relation to all the pertinent circumstances.” He also 

complains the trial court erred because it did not find his belief to be “clearly 

unreasonable.”

“‘Before an attorney may be disqualified from representing a party in litigation 

because his representation of that party is adverse to the interest of a current or former 

client, it must first be established that the party seeking the attorney’s disqualification 

was or is “represented” by the attorney in a manner giving rise to an attorney-client 

relationship. [Citations.]’” (Koo v. Rubio’s Restaurant, Inc. (2003) 109 Cal.App.4th 

719, 729.) “The burden is on the party seeking disqualification to establish the attorneyclient relationship. [Citation.]” (Ibid.)

“The question of whether an attorney-client relationship exists is one of law. 

[Citations.] However, when the evidence is conflicting, the factual basis for the 

determination must be determined before the legal question is addressed. [Citation.]”

(Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1733.) The trial 

court’s findings, or presumed findings, of the underlying factual issues will be upheld if 

supported by substantial evidence. (Id. at p. 1734.)
10.

An attorney-client relationship is created “by some form of contract, express or 

implied, formal or informal.” (Fox v. Pollack, supra, 181 Cal.App.3d at p. 959.) “‘The 

distinction between express and implied in fact contracts relates only to the manifestation 

of assent; both types are based upon the expressed or apparent intention of the parties.’

[Citation.]” (Responsible Citizens v. Superior Court, supra, 16 Cal.App.4th at pp. 1732-

1733.) A person’s subjective belief that an attorney-client relationship exists—his 

“thought” that the attorney was representing him—is insufficient. (Zenith Ins. Co. v. 

O’Connor (2007) 148 Cal.App.4th 998, 1010; Fox v. Pollack, supra, at p. 959.) “This is 

because a [person] cannot unilaterally establish an attorney-client relationship, and [his] 

hindsight ‘beliefs’ that such a relationship existed are thus legally irrelevant. [Citation.] 

Instead, it is the intent and conduct of the parties that control the question as to whether 

an attorney-client relationship has been created. [Citation.]” (Zenith Ins. Co. v. 

O’Connor, supra, at p. 1010.) “In determining the existence of an attorney-client 

relationship, we should ask whether the ‘totality of the circumstances’ so indicate. 

[Citation.]” (Koo v. Rubio’s Restaurants, Inc., supra, 109 Cal.App.4th at p. 732; see 

Responsible Citizens v. Superior Court, supra, at p. 1733.)

Here, the trial court found the declarations filed by and on behalf of appellant were 

insufficient to show the existence of an attorney-client relationship between him and 

Pannell. While appellant declared he understood Pannell to be acting as an attorney for 

him and his related businesses, his declaration is critically lacking in that regard. He fails 

to declare that a contract for legal services existed between him and Pannell. He does not 

declare he entered into a written retainer agreement with her, or even that an oral contract 

of some sort was formed. Appellant does not declare he was ever billed by or made 

payments to Pannell, nor does he declare he received any correspondence from Pannell in 

her capacity as a lawyer prior to his having been named in the underlying action. 

Appellant’s supplemental declaration fails to correct any of these deficiencies.
11.

In contrast, Pannell’s declaration expressly provides, in pertinent part, that: (1) 

she never offered, nor was she ever retained, to represent appellant or any other named 

defendant; (2) it is her custom and habit to prepare a retainer agreement for every client 

she has ever represented, and she did not prepare a retainer agreement for appellant or 

any other named defendant; and (3) she never had a discussion with appellant wherein 

she assured him he could discuss anything with her because she is an attorney.

Further, appellant’s declaration lacks the requisite evidentiary facts to support his 

assertions regarding the existence of an implied-in-fact attorney-client contract between 

him and Pannell. He makes a number of assertions: (1) Pannell gave him advice 

regarding remodeling and business stability; (2) he permitted her to use his private office 

and computer such that she had access to financial records; and (3) Pannell prepared a 

comprehensive business analysis that required her review of “all [his] financial 

information.” Pannell’s declaration is in direct conflict. She declared she neither 

attempted nor had a desire to view appellant’s or any other named defendant’s financial 

information, she did not prepare a comprehensive business analysis report for appellant 

or for any other named defendant, and she did not render an opinion or attempt to 

recommend renovation advice to appellant. Appellant’s supplemental declaration fares 

no better. For example, he claims to have paid Pannell for “having volunteered helpful 

general advice almost every time” they met by reducing her room rate from $129 per 

night to $89 per night. However, Pannell’s declaration explains the rate reduction she 

received while a guest at appellant’s hotel was the result of her and her fiancé 

approaching the general manager and seeking such a reduction because she was a 

frequent guest. In another example, appellant claims throughout his supplemental 

declaration that Pannell was interested in him romantically and, apparently, used her 

feminine wiles to convince him she was acting as his attorney. At the hearing on the 

motion, Pannell specifically addressed those assertions, stating they were “preposterous,”
12.

“absurd,” and “insulting.” She considered these comments and appellant’s accusations to 

be harassment, meant to intimidate her and her client.

Appellant’s bald assertion that the trial court failed to consider “all the pertinent 

circumstances” is belied by the record. At the commencement of the hearing on the 

motion, the court explicitly stated it had considered all of the documents and exhibits 

submitted in support of and in opposition to appellant’s motion. Further, it is clear from 

the questions posed during argument on the motion that the court considered all of the 

evidence presented by both parties in making its determination. The court did not ignore 

appellant’s subjective belief. It considered it, but ultimately found that belief—in the 

absence of additional credible evidence—was insufficient to establish an attorney-client 

relationship between appellant and Pannell. Appellant cannot unilaterally establish an 

attorney-client relationship.

In conclusion, the trial court did not abuse its discretion in determining there was 

no attorney-client relationship or implied-in-fact attorney-client contract between 

appellant and Pannell. Its factual findings, or presumed findings, regarding the 

underlying factual issues are supported by substantial evidence and thus will not be 

disturbed.

3. Consideration of the Breach of the Duty of Fidelity

Next, appellant maintains the trial court committed error by failing to consider 

Pannell’s disqualification based upon her breach of the duty of fidelity, citing 16 facts or 

factors that the trial court “disregarded” or ignored.

Appellant’s argument consists of a single case for the foregoing proposition, it 

references arguments made below by way of his pleadings, provides a list of facts or 

evidence the trial court purportedly disregarded, then concludes by asserting the trial 

court’s order must be reversed. The argument is utterly lacking in legal analysis. Rule 

8.204 of the California Rules of Court requires more than a single citation to legal 

authority in the absence of legal analysis. (Taylor v. Nabors Drilling USA, LP (2014) 
13.

222 Cal.App.4th 1228, 1248 [“The argument must include legal analysis”]; Bullock v. 

Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 [“appellant must affirmatively 

demonstrate error through reasoned argument, citation to the appellate record, and 

discussion of legal authority”]; Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [“One 

cannot simply say the [trial] court erred, and leave it up to the appellate court to figure 

out why”]; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1

[court may disregard conclusory arguments not supported by pertinent legal authority or 

that fail to disclose reasoning by which the appellant reached conclusions he or she seeks 

court to adopt].) “‘When an issue is unsupported by pertinent or cognizable legal 

argument it may be deemed abandoned and discussion by the reviewing court is 

unnecessary. [Citations.]’ [Citation.]” (Taylor v. Nabors Drilling USA, LP, supra, at p. 

1248.)

In any event, even absent this procedural forfeiture, appellant’s argument fails on 

the merits.

Appellant cites to William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 

1042, 1046-1047. In that case, a dispute arose between Rupert Carroll and William H. 

Raley Co., Inc., (Raley) concerning a lease. Carroll retained the law firm of Gray, Cary, 

Ames & Frye (Gray Cary) to file suit against Raley for breaches of the lease agreement. 

Raley moved to disqualify Gray Cary as Carroll’s counsel, claiming that a Gray Cary 

partner, Karl ZoBell, served as a director of the La Jolla Bank & Trust Company and a 

member of its investment committee. La Jolla Bank & Trust Company was the trustee of 

a trust owned by Raley and a bank with which Raley had a lending relationship. (Id. at 

pp. 1044-1047.) ZoBell, in his capacity as a director and committee member, had 

“ongoing accessibility to confidential information about Raley which may be pertinent”

to Carroll’s lawsuit. (Id. at p. 1048.) The court concluded a conflict of interest existed 

between Gray Cary’s representation of Carroll and ZoBell’s relationship with La Jolla 

Bank & Trust Company. (Id. at pp. 1046-1048.) It further found that given the near 
14.

impossibility of isolating the attorney/director from confidential information, as well as 

the attorney’s continuing obligations within both the bank and the law firm, 

disqualification of the law firm from representing interests adverse to Raley was required.

(Id. at pp. 1049-1050.)

Appellant contends “a disqualifying conflict of interest may arise in a nonclient 

case ‘where an attorney’s relationship with a person or entity creates an expectation that 

the attorney owes a duty of fidelity,’” and that here, Pannell gained access to his private 

business records and was provided “confidential and privileged” information creating 

such an expectation. To the degree appellant contends the trial court disregarded or 

ignored evidence, we have already found to the contrary. (See pt. 1, ante.) The trial 

court was entitled to, and did, credit Pannell’s declaration that she did not have access to 

appellant’s business or financial records and that she never viewed any records of the 

sort. Appellant fails to address this contrary evidence in any way.

Further, the evidence offered by appellant in support of his motion to disqualify 

Pannell was unlike the evidence offered in William H. Raley Co. v. Superior Court. 

There, it was plain ZoBell had “ongoing accessibility to confidential information” as a 

result of his positions as a director and committee member at La Jolla Bank & Trust 

Company. (William H. Raley Co. v. Superior Court, supra, 149 Cal.App.3d at p. 1048.) 

Here, there is only appellant’s declaration that Pannell owes him a duty of fidelity 

because she had access to his private business records. Unlike Raley, in this case there is 

evidence directly contradicting appellant’s position. That evidence comes in the form of 

Pannell’s declaration to the contrary; a position that is further supported by the 

declaration of respondent Tammia Gunnuscio, as well as an exhibit to Pannell’s 

declaration. More particularly, exhibit B to Pannell’s declaration comprises portions of 

transcripts from the depositions of appellant and his business partner and brother Kasturi 

Lal that were taken in an unrelated federal court action. In their depositions, both 

appellant and Lal testify that the business and financial records for their businesses are 
15.

maintained only at their personal residences, rather than on business property. Therefore, 

even if appellant’s declaration and those other declarations offered for the same reason 

were credited for the proposition that attorney Pannell had used appellant’s personal 

office at the Courtyard By Marriott Merced, there was evidence no business records 

would have been available to Pannell.

Essentially, appellant’s argument is “little more than an invitation to reweigh the 

evidence.” (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278.) In 

his reply brief, appellant does the same: his argument asks the court to reweigh the 

evidence presented to the trial court. We will not do so. (People ex rel. Dept. of 

Corporations v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th at p. 1143; Dino v. 

Pelayo (2006) 145 Cal.App.4th 347, 351 [“Nor will the appellate court substitute its 

factual findings for the trial court’s express or implied findings so long as they are 

supported by substantial evidence”].)

Hence, the trial court did not abuse its discretion in finding that attorney Pannell 

did not breach a duty of fidelity owed to appellant.

4. Alleged Disregard of the Disclosure of Confidential Information

Appellant’s final, entire argument is as follows:

“To deny disqualification in this case the trial court was required to find 

insufficient evidence that Pannell had ‘received confidential information in 

the course of [her relationship with Kainth] which [would] be, or [would] 

appear to [KAINTH] to be, useful in [this litigation]’ (Raley, 149 

Cal.App.3d at 1047) (emphasis). Instead, it only found insufficient 

evidence that ‘Pannell [] received confidential information that would 

provide an advantage to her in this litigation’ (RT, 30:26 - 31:4), 

irrespective of what it appeared to Kainth. It accordingly erred.”

The portion of the Raley opinion to which appellant refers provides that a conflict 

of interest between an attorney and a nonclient may arise “‘where the attorney has 

acquired confidential information in the course of such a relationship which will be, or 

may appear to the person or entity to be, useful in the attorney’s representation in an 
16.

action on behalf of a client.’” (William H. Raley Co. v. Superior Court, supra, 149 

Cal.App.3d at p. 1047.)

Appellant’s assertion the trial court’s finding is lacking because it did not 

expressly state or reference his belief that the confidential information acquired would be 

useful in the action is not well taken. It is clear on this record the trial court considered 

appellant’s belief that Pannell was his attorney, as well as his belief that Pannell 

possessed confidential information. But even in light of those beliefs, it determined the 

evidence was not sufficient to support a finding that Pannell received confidential 

information useful to the litigation. Unlike the facts in William H. Raley Co. v. Superior 

Court, where it was plain the attorney received confidential information, here, there are 

no such facts. Pannell declared she never had access to, nor did she ever receive, any 

financial or otherwise confidential business information pertaining to appellant or to any 

other named defendant. Pannell’s declaration was supported by Gunnuscio’s declaration 

and is further corroborated by exhibit B to her declaration.

The trial court did not abuse its discretion in finding there was insufficient 

evidence to conclude attorney Pannell received confidential information that would 

provide an advantage in the litigation between respondent and appellant.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent.