Filed 4/24/23 Park v. Kim CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

HYUN JOU PARK,

Plaintiff and Appellant,

v.

HESOOK KIM et al.,

Defendants and 

Respondents.

 B310225

 (Los Angeles County

Super. Ct. No. 

20STCV31674)

APPEAL from an order of the Superior Court of Los 

Angeles County, Christopher K. Lui, Judge. Affirmed.

Klapach & Klapach and Joseph S. Klapach for Plaintiff and 

Appellant.

TroyGould, Aaron Bloom, and Amy Nashon for Defendants

and Respondents.

_______________________________
2

Plaintiff and appellant Hyun Jou Park appeals from an 

order disqualifying her attorney and his law firm from 

representing her in this action against her mother and brother 

arising out of a real estate transaction. The trial court based the 

disqualification order on its finding the attorney had jointly 

represented Park, her mother, and her brother in the same real 

estate transaction that is the subject of this action. The court 

concluded disqualification of the attorney in this successive 

representation of Park against her family members is mandatory,

based on the legal presumption that the attorney received 

confidential information from Park’s family members in the prior 

joint representation. On appeal, Park contends disqualification is 

not required because her attorney never had an attorney-client 

relationship with her mother or brother and, even if he did, they

had no reasonable expectation that their communications with 

the attorney would be kept confidential from her during the prior 

joint representation. We conclude the trial court’s factual 

findings are supported by substantial evidence, and the trial 

court did not abuse its discretion in ordering the disqualification 

of the attorney and his firm. Accordingly, we affirm the order.

BACKGROUND

I. The Pleadings

A. Original complaint

In August 2020, Park and her attorney, Jeff Katofsky, as 

coplaintiffs,1filed this action against Hesook Kim, Park’s mother,

1

As explained below, Katofsky does not assert a cause of 

action or request relief in the operative first amended complaint.
3

and Hyun Kwon Kim, Park’s brother (collectively, the Kims),

2

in 

their individual capacities and as trustees of the Hesook Kim 

Trust Executed 8/24/04 (the Trust). Katofsky and two other

attorneys from his firm represented Park and Katofsky on the 

original complaint. The complaint alleged as follows, in pertinent 

part:

The Kims are cotrustees of the Trust.3 In or around March 

2020, the Trust sold an asset (a piece of real estate) for nearly

$10 million. The net proceeds of the sale, $7.7 million, were to be 

divided into five equal shares of $1,542,066 and distributed to 

each beneficiary of the Trust, after being reinvested in 

transactions that qualified for deferred capital gains under 

Internal Revenue Code section 1031.

In or around May 2020, using four of the beneficiaries’ 

shares of the $7.7 million in proceeds, excluding Park’s share, the 

Trust purchased a property in Burbank for $6 million. For Park’s 

share of the proceeds, the Kims asked Park to find a property 

that would satisfy the legal requirements of an Internal Revenue 

Code section 1031 exchange. Park and the Kims decided to 

2

Because defendants Hesook Kim and Hyun Kwon Kim 

share the same surname, when referring to them individually, we 

will use the names Hesook and Hyun Kwon to avoid confusion

and not as a sign of disrespect.

3

As stated in Hyun Kwon’s declaration in support of the 

motion to disqualify, during Hesook’s lifetime, the Trust’s income 

and principal shall be used to pay her expenses and maintain her 

standard of living. Hesook’s four adult children, including Hyun 

Kwon and Park are the Trust’s primary remainder beneficiaries. 
4

jointly purchase a property, referred to in this action as the 

Moorpark Property, for $3.5 million. 

As reflected in a May 29, 2020 purchase and sale 

agreement (the PSA) attached to the complaint, an entity called 

Double Play, LLC (Double Play) owned the Moorpark Property. 

Katofsky was Double Play’s Managing Member, and he drafted 

the PSA. Park, Hesook, and Hyun Kwon signed the PSA as 

buyers and tenants in common; Katofsky signed on behalf of the 

seller, Double Play. Park and the Kims were to assign their 

rights under the PSA to the Trust. 

The complaint alleged: “To protect the 1031 exchange and 

prepare for the closing of the Moorpark transaction, significant 

legal work was required. Defendants [the Kims] specifically 

requested [plaintiff Katofsky] to perform such work and agreed to 

pay for such.” In support of these allegations, Park and Katofsky 

referenced and attached to the complaint an email exchange 

between Hyun Kwon and Katofsky, which we summarize here. 

In an email dated June 29, 2020, a month after the parties 

signed the PSA, Hyun Kwon thanked Katofsky “for taking [his] 

call and explaining 1031 exchange laws to [him].” Hyun Kwon 

provided his “thoughts” regarding proposed terms of an 

agreement to “transfer 100 percent” of the Moorpark Property 

from the Trust to Park around a year after the close of escrow of 

the Moorpark Property transaction. He asked Katofsky whether 

both he and Hesook would sign such an agreement, or only 

Hesook. He concluded the email, stating: “Let me know if this 

will work for the agreement. I value your expertise a lot on this 

matter therefore, I am always open for better ways. [¶] You 

should also ask Helen Park for her input on this matter. [¶] 

Thank you again for your help.” 
5

On July 14, 2020, Hyun Kwon sent a follow-up email to 

Katofsky, stating: “You were going to write in legal terms an 

agreement letter (content is in yellow highlight [in the attached 

June 29, 2020 email referenced above]) for both Helen Park and 

[the] Trust. [¶] When can we have a draft/brief ready? We will 

pay for the fee if that is the issue. [¶] Thank you in advance.”

Park and Katofsky alleged in the complaint that in or 

around late July 2020, the Moorpark Property transaction was 

ready to close. By that point, Park had “incurred over $260,000 

in fees, inspections, costs and commissions on the transaction.”

The Kims and the Trust had signed all documents required to 

complete the purchase. According to the complaint, some of the 

documents “were rejected by title for a fraudulent notary 

acknowledgement. [¶] . . . After being notified of the fraudulent 

notary acknowledgement, Defendants [the Kims], on the day of 

closing, cancelled the transaction, refused any further document 

signing and refused to close the transaction or pay Plaintiff Park. 

[The] Trust will now suffer severe tax liability and has indicated 

it will not pay Park or Katofsky as promised.” 

In the first cause of action in the original complaint, 

Katofsky alleged: “Plaintiff Katofsky and Defendants [the Kims] 

had an oral agreement whereby Defendants requested and 

received legal services.” Katofsky further alleged the Kims and 

the Trust “breached the agreement by failing to pay for such 

services” in an amount not less than $32,800. 

Seeking, among other relief, a $1,542,066 share of the net 

proceeds from the Trust’s sale of real property, and 

reimbursement of expenses incurred in the Moorpark Property 

transaction, Park asserted causes of action against the Kims and 

the Trust for breach of oral contract, intentional and negligent 
6

interference with contract, promissory estoppel, and common law 

fraud. 

B. The Kims’ petition for arbitration of Katofsky’s 

attorney fees claim

The Kims retained counsel to represent them in this action 

in their individual capacities and as trustees of the Trust. On 

September 15, 2020, their counsel sent a letter to Katofsky, 

informing him that the Kims intended to file (1) a request for 

arbitration of a fee dispute under the Mandatory Fee Arbitration 

Act (Bus. & Prof. Code, § 6200 et seq.), (2) a notice of automatic 

stay of the action due to the filing and service of the request for 

arbitration (Bus. & Prof. Code, § 6201), and (3) a “motion to 

disqualify [Katofsky] from representing Park in this action since 

Park’s purported claims against the Kims relate to the exact 

same Transaction in which [Katofsky] represented the Kims.”

The Kims’ counsel asserted in the letter to Katofsky: “In 

the Complaint, you admit that the Kims hired you to perform 

legal work for them in connection with the Moorpark [Property] 

Transaction. Your legal representation of the Kims creates a 

number of problems with respect to the Complaint you have filed 

on behalf of yourself and Park against your clients, the Kims.” 

(Fn. omitted.) One of the “problems” the Kims’ counsel 

enumerated is that Katofsky “never terminated the attorneyclient relationship between [him] and the Kims prior to filing the 

lawsuit against them.” 

The following day, September 16, 2020, Katofsky sent a 

letter to the Kims’ counsel, stating in full: “Thank you for your 

September 15, 2020 letter regarding this matter. [¶] I 

represented, and still represent, the Park Family, never the 

Kims. [¶] Have a nice day.” 
7

On or about September 17, 2020, the Kims filed a petition 

for arbitration of Katofsky’s attorney fees claim with the Los 

Angeles County Bar Association. Therein, they alleged: 

Katofsky “violated multiple conflict of interest rules. He advised 

clients with respect to a real estate transaction and is now suing 

them on behalf of himself and the adverse party in that exact 

same transaction. [Katofsky] also had a personal interest in the 

transaction and did not obtain informed written consent from 

clients.” 

On September 23, 2020, the Kims filed a notice of stay of 

this action while the fee arbitration was pending. 

C. First amended complaint

On October 9, 2020, Katofsky filed a request for dismissal 

of his cause of action against the Kims for breach of oral contract 

for legal services, thereby obviating the need for a fee arbitration 

and avoiding an automatic stay of this action. The same day, he 

filed a first amended complaint on behalf of Park in which she 

asserted the same five causes of action against the Kims that she 

had alleged in the original complaint. She increased her claim 

for damages by $32,800, the amount Katofsky had sought in the 

original complaint, and she alleged in the first amended 

complaint: “To protect the 1031 exchange and prepare for the 

closing of the Moorpark [Property] transaction, significant legal 

work was required. [Katofsky] performed such work and Plaintiff 

[Park] paid for such, at a cost of $32,800.” 

II. The Kims’ Motion to Disqualify Katofsky

A. Moving papers

On November 13, 2020, the Kims filed a motion to 

disqualify Katofsky and his law firm, Katofsky Law, from 

representing Park in this action. The motion was supported by a 
8

declaration from Hyun Kwon. Therein, he stated that after the 

Trust sold the piece of real estate in March 2020 (as referenced 

above), the Trust engaged Katofsky and Katofsky Law

(collectively, Katofsky) “to assist it in structuring the transaction 

so that it would qualify as a tax-deferred exchange” under 

Internal Revenue Code section 1031. At the same time, Katofsky 

was also advising Park in connection with the 1031 exchange and 

her purchase of a piece of property jointly with the Trust. 

According to Kwon, “Katofsky accepted the representation but 

did not prepare a written representation agreement, did not 

advise [them] of any potential or actual conflicts of interest 

involved in representing the interests of multiple family members 

. . ., and did not obtain [their] informed written consent regarding 

the joint representation.” 

Hyun Kwon further stated in the declaration that Katofsky 

advised the Kims, as trustees of the Trust, with respect to the 

purchase of the property in Burbank as well as the purchase of 

the Moorpark Property. With respect to the latter transaction, 

Hyun Kwon stated that at the time he and Hesook signed the 

May 29, 2020 PSA, they were unaware of Katofsky’s role in 

Double Play, the seller of the Moorpark Property (although 

Katofsky signed the PSA as Double Play’s Managing Member). 

Katofsky “did not obtain informed written consent from [the 

Kims] in connection with [his] role as seller in the transaction” or 

advise them to “to seek independent counsel.” 

Hyun Kwon attached to his declaration another purchase 

and sale agreement that Katofsky prepared and had the Kims 

sign in or around June or July 2020, which was postdated June 

15, 2021. Under this agreement, the Trust would sell the 

Moorpark Property to an entity called MoreMoorPark, LLC for 
9

$2,010,000, nearly $1.5 million less than they were going to pay 

under the May 29, 2020 PSA to purchase the Moorpark Property 

from Double Play.

According to Hyun Kwon’s declaration, the Kims canceled 

the Moorpark Property transaction, forfeiting a $175,000 deposit 

they had made, after they became aware of Katofsky’s role as 

seller and “became concerned that going forward with the 

[transaction] would amount to tax fraud (since immediately / 

simultaneously selling the Moorpark Property would negate the 

requisite intent to hold the property for investment at the time of 

the exchange.” 

Hyun Kwon asserted that during Katofsky’s representation 

of the Kims, Katofsky “knowingly obtained confidential 

information from [the Kims] about [their] real estate 

transactions, tax planning, and trust administration and used 

that information to advise [them] and prepare documents on 

[their] behalves [sic].” 

In their motion, the Kims argued Katofsky should be 

disqualified from representing Park in this action because (1) 

Katofsky still represented the Kims when he filed this action 

against them; (2) even if the Kims were former clients when 

Katofsky filed this action, the action is substantially related to 

Katofsky’s representation of the Kims, and he owes the Kims 

ongoing duties of loyalty and confidentiality; (3) Katofsky “did not 

obtain the Kims’ informed written consent to the conflicts of 

interest presented by the representation”; and (4) Katofsky is 

“seeking to enforce a financial transaction in which he has a 

major financial interest.” 
10

B. Park’s substitution of counsel and opposition to 

the disqualification motion

On November 30, 2020, Park substituted Gary Salomons 

and Salomons Law Group as her counsel in this action. On 

December 4, 2020, Salomons filed on Park’s behalf an opposition 

to the Kims’ disqualification motion, in which Park argued the 

Kims’ motion was moot based on her substitution of counsel. 

Park acknowledged that Salomons was listed on Katofsky’s 

letterhead as “of counsel,” but argued this designation “is, for all 

practical purposes meaningless,” because although Salomons 

rented office space from Katofsky, he operated his own law 

practice and had his own malpractice insurance policy, which 

listed him as a solo practitioner. In an accompanying 

declaration, Salomons stated he had “not spoken to Katofsky 

about any information that was provided by [the Kims] in the 

course of Katofsky’s apparent alleged facilitation of the 1031 

exchanges.” 

Katofsky also submitted a declaration in support of Park’s 

opposition to the disqualification motion. Therein, he stated: “I 

specifically advised [the Kims] that I represented the Park family 

for close to 20 years. I specifically advised [the Kims] that I did 

not represent them. [The Kims] specifically advised me that they 

had separate legal counsel and accountants but did not want me 

to directly communicate with either to keep their costs down.” 

Katofsky had a retainer agreement with the Park family but “did 

not send or prepare a retainer agreement to [the Kims] because 

they had their own legal counsel.” 

Regarding his role in the Moorpark Property transaction, 

Katofsky stated: “In May 2020, in order to protect tax-deferment 

provided by Internal Revenue Code section 1031 and prepare for 
11

the closing on the Moorpark Property, [the Kims] requested that 

I, as seller’s counsel, prepare a first draft of [the PSA] and other 

closing documents. Those documents would then be vetted by 

[the Kims’] legal counsel and accountants. I prepared the 

documents as requested.” He added: “It is standard in every real 

estate transaction that one side’s lawyer prepares the first draft. 

It is also standard that either the parties split the cost or, as 

here, the buyer pays all legal costs of document preparation.”4

Katofsky denied receiving any confidential information 

from the Kims. He asserted: “To the extent some information 

was provided to me, it was, and continues to be, information that 

was not material to [Park]’s claims asserted against [the Kims], 

which are based upon [the Kims’] failure to pay [Park] the sum of 

$1,542,066.” Katofsky also denied discussing with Salomons any 

communications he had with the Kims.

In her opposition, Park argued disqualification is not 

required because (1) the Kims failed to meet their burden of 

establishing Katofsky represented them; (2) even if Katofsky 

represented them, the representation concluded, and “there is no 

‘substantial relationship’ between Katofsky’s assistance in 

preparing the first draft of closing documents for the Moorpark 

property . . . and Katofsky’s previous representation of [Park] in 

this action”; and (3) the Kims failed to meet their burden of 

establishing Katofsky obtained material confidential information.

4 We note that the May 29, 2020 PSA that the parties 

signed provides that each side would pay its own attorney fees in 

connection with the Moorpark Property transaction and does not 

state that the Kims would be solely responsible for the costs of 

document preparation.
12

Based on these arguments, Park asserted “Salomons is not 

subject to vicarious disqualification.” 

C. The Kims’ reply brief

In their reply brief in support of their motion, filed on 

December 10, 2020, the Kims argued disqualification is required 

because (1) Katofsky “expressly admitted” in the original 

complaint that he represented the Kims, and the email exchange 

between Hyun Kwon and Katofsky (summarized above) 

demonstrates such representation; and (2) the prior and current 

representations are substantially related, so the exchange of 

confidential information is conclusively presumed. The Kims also 

argued that disqualification “extends” to Salomons, as he is listed 

as a “member” of Katofsky Law on the firm’s Web site and “of 

counsel” on the firm’s letterhead; and after Salomons substituted 

in as counsel for Park, an associate from Katofsky Law appeared 

on behalf of Park at a hearing in this matter. There was no 

showing of separation between Katofsky and Salomons or ethical 

wall rules and procedures.

Hyun Kwon submitted a supplemental declaration in 

support of the Kims’ reply brief. He stated Katofsky was the 

“only lawyer who gave legal advice to [the Kims] regarding the 

1031 exchange and the Moorpark [Property] transaction.” The 

Kims did not have independent counsel and he never told 

Katofsky they did. Nor did Katofsky tell the Kims that he only 

represented Park in connection with the 1031 exchange and the 

Moorpark Property transaction. Hyun Kwon stated he had 

“extensive discussions” with Katofsky regarding the Kims’ “real 

estate transactions, tax planning, and trust administration, 

including the potential distribution of Trust assets, which is now 

at issue in this action.” 
13

D. Further briefing by the parties

1. Park’s supplemental briefing

On December 30, 2020, with the permission of the trial 

court, Park filed a sur-reply, accompanied by declarations. Park 

submitted a declaration stating Katofsky was her lawyer, and she 

told Hyun Kwon that Katofsky was “providing [her] counsel 

regarding the Moorpark [Property] transaction.” Hyun Kwon 

never indicated to her that he believed Katofsky was 

representing him, Hesook, or the Trust. Hyun Kwon “repeatedly

told [her] that he had his own lawyer and would be discussing the 

Moorpark [Property] transaction with him, including the first 

draft of [the PSA] prepared by [her] lawyer, Mr. Katofsky.” Hyun 

Kwon declined her offer to have Katofsky communicate directly

with his lawyer, stating he wanted “to keep attorney costs down.” 

He told her he would discuss the transaction with his own lawyer 

and relay information to Katofsky. She told him “to stop 

contacting Mr. Katofsky because [she] was incurring legal fees for 

Mr. Katofsky helping [her] with the 1031 exchange process. In 

response, [Hyun] Kwon explicitly told [her] that he would pay Mr. 

Katofsky’s legal bill.” 

In support of her assertion that Katofsky was only her 

lawyer, and not the Kims’ lawyer as well, Park attached to her 

declaration text message exchanges with Hyun Kwon. In an 

April 17, 2020 exchange, Hyun Kwon sought information about 

the status of the Moorpark Property transaction, and Park

responded, in pertinent part: “I will forward the information to 

you as soon as we have finished negotiating the purchase/sale 
14

agreement as it is being reviewed by counsel.”5In a June 2020 

exchange, Hyun Kwon wrote, “Ask you [sic] smart lawyer who 

owns the property.” Park responded: This is our lawyer Jeff 

Katofsky, Esq.” and provided his phone number. Hyun Kwon 

replied: “I just discussed with Jeff. I explained the issue and he 

will explain what we need to do. Call him.” Park argued in her 

sur-reply that this text exchange shows the Kims did not engage 

Katofsky in connection with the Burbank and Moorpark property 

transactions because in June 2020, Hyun Kwon was referring to 

Katofsky as Park’s lawyer. 

Katofsky submitted a supplemental declaration, stating he 

never spoke with Hesook, and he only spoke to Hyun Kwon after 

the Burbank transaction closed. Initially, the Park family asked 

him to prepare a first draft of the PSA for the Moorpark Property 

transaction and later, after the transaction was changed by the 

Parks and the Kims, he “was then asked to redraft those 

documents, including a loan package, leases and subsequent 

purchase and sale documents.”6 At most, he spoke with Hyun 

5

Park stated in her declaration that she “did not even 

involve Mr. Katofsky until after the Burbank transaction closed 

escrow.” In her complaint and first amended complaint, she 

alleged the Trust purchased the Burbank property in May 2020. 

But here, in these text messages, she references an agreement 

related to the Moorpark Property transaction that “is being 

reviewed by counsel” the previous month, in April 2020. It 

appears, therefore, that Katofsky was “involved” before the 

Burbank transaction closed escrow.

6

Prior to the filing of this supplemental declaration, 

Katofsky had maintained that it was the Kims who requested he 
15

Kwon three times “about some 1031 issues that would need to be 

covered in the documents” for the Moorpark Property transaction. 

No confidential information was exchanged during these 

discussions. When he and Hyun Kwon emailed, “there were one 

to three other people included” on the correspondence. He “did 

not interpret the Kims’ agreement to pay [his] legal fees for 

drafting the documents as creating an attorney-client 

relationship because Borrowers[

7

] always pay those fees and 

costs.” He repeated other statements he made in his initial 

declaration, which we summarized above.

Park also submitted a declaration from Stacey Rosenberg, a 

partner in the Finance and Bankruptcy Practice Group at 

Sheppard Mullin Richter & Hampton LLP. She stated that “[a]s 

an industry standard, the Borrower pays for the legal fees and 

costs of both the Lender’s and its own counsel,” but the “Lender’s 

counsel never represents the Borrower in the same transaction.” 

Fees for preparing documents in loan transactions “almost 

always cost in the tens (or hundreds) of thousands of dollars.” “In 

transactions involving Buyers and Sellers of real estate, it is 

typical for one side’s counsel to take the laboring oar of doing the 

first draft of documents, with the other side providing 

comments . . . .” “The drafter is not counsel for the opposing side 

of the transaction,”

8

and direct communication between a 

prepare the first draft of the Moorpark Property transaction 

documents.

7

Presumably, he meant “buyers” not “borrowers.”

8

Yet here, Katofsky claims he represented Double Play 

(the seller) and Park (one of the buyers) with respect to the 

Moorpark Property transaction.
16

lender/seller’s counsel and a borrower/buyer is common.

Typically, one side pays the costs of document preparation, as “a 

negotiated term between the parties.” The costs are “almost 

always” tens of thousands of dollars in these types of 

transactions. “In no real estate transaction does the fact that one 

side pays for documentation or creates the initial set of 

documents have any determination or indication of 

representation.” 

Based on Katofsky’s and Rosenberg’s declarations, Park 

argued an attorney-client relationship was not created between 

Katofsky and the Kims, and it was unreasonable for Hyun Kwon 

to believe Katofsky represented the Kims. Park also challenged 

the credibility of Hyun Park’s declarations, pointing out, among 

other things, that he denied knowing at the time he signed the 

PSA that Katofsky was the Managing Member of Double Play 

(the seller), although Hyun Park signed the PSA on the same 

page where Katofsky signed as the Managing Member of Double 

Play.

2. The Kims’ supplemental briefing

On January 5, 2021, with permission from the trial court, 

the Kims filed a response to Park’s sur-reply, supported by a 

third declaration from Hyun Kwon. In the declaration, he stated 

he did not realize Katofsky was the Managing Member of Double 

Play because he “did not pay any attention to who was signing on 

behalf of the seller as that was not important to [him] at the 

time.” He further stated it was his understanding that Katofsky 

was providing legal advice to Park, Hesook and him, as they

“were all buyers of the Moorpark property.” He maintained that 

Katofsky was “the only lawyer who gave legal advice to [him] and 

[his] mother regarding the 1031 exchange and the Moorpark 
17

[Property] transaction.” He noted that in the June 2020 text 

message exchange, Park referred to Katofsky as “ ‘our lawyer.’ ”

9

In the supplemental brief, the Kims argued, among other 

things, that attorney Rosenberg’s declaration was inadmissible 

and irrelevant because she had no personal knowledge of the 

subject transaction; she focused on lender/borrower relationships 

that are not at issue here; her statement that the “drafter is not 

counsel for the opposing side of the transaction” is belied by 

Katofsky’s acknowledgement that he drafted the documents as 

seller’s counsel and acted as counsel for one of the buyers (Park); 

and she stated that payment of fees for document preparation is 

a negotiated term, but the PSA does not provide that the buyers 

were responsible for such fees in this case.

III. Trial Court’s Ruling

On January 8, 2021, the trial court heard argument from 

the parties on the disqualification motion and took the matter 

under submission. Later, the same day, the court issued a 10-

page order granting the Kims’ motion to disqualify Katofsky and 

Salomons. 

The trial court concluded Park’s substitution of counsel did 

not render the matter moot. Katofsky Law listed Salomons as an 

of counsel member of the firm. The court explained, “Attorneys 

who are ‘of counsel’ relative to a law firm are subject to imputed 

disqualification.”

The trial court noted that Katofsky was a named plaintiff 

in the original complaint in which he alleged (as summarized by 

9

At the January 8, 2021 hearing on the disqualification 

motion, Park argued “our lawyer” meant the Park family’s 

lawyer.
18

the court): “Defendants [the Kims] specifically requested 

Katofsky to perform significant legal work to protect the 1031 

exchange and prepare for the closing of the Moorpark [Property] 

transaction, and agreed to pay for such, which services cost 

$32,800.00. [Citation.] Katofsky allege[d] that he had an oral 

agreement with Defendants whereby Defendants requested and 

received legal [services], [citation] and that Defendants breached 

the agreement by failing to pay for such legal services.” 

The court explained: “Although these allegations are not 

conclusive judicial admissions because they are contained in a 

pleading which has been superseded by amendment, such 

allegations are rebuttable evidentiary admissions. [Citation.] 

The Court gives much weight to Katofsky’s allegations in the 

original Complaint as evidentiary admissions.” The court 

reasoned that Katofsky’s statements—that he represented (and 

continues to represent) the Park family and has never 

represented the Kims—must be viewed in the context of his 

allegations in the original complaint. The court rejected any 

implication that Katofsky was merely seeking to recover the costs 

of document preparation through his cause of action in the 

original complaint, as “$32,800 for document preparation is 

excessive.” The court concluded the “inference is that Katofsky 

was seeking to recover for legal advice rendered to Defendants

[the Kims], not simply their share of document preparation fees.” 

The court found Katofsky presented no proof that the Kims were 

represented by their own attorney in connection with the 

Moorpark Property transaction.

The court concluded: “In light of the foregoing evidence 

[which included consideration of Hyun Kwon’s declarations], 

especially the allegations Katofsky made as Plaintiff in the 
19

original Complaint, the court finds that Katofsky represented 

Defendants [the Kims] in connection with the underlying 

Moorpark [Property] transaction, which forms the basis of 

Plaintiff Park’s claims against Defendants. As such, access to

confidential information is presumed [due to the substantial 

relationship between the former representation and the current 

representation], and disqualification of Katofsky is mandatory.” 

Notwithstanding the presumption, the court found Katofsky 

actually acquired confidential information from the Kims, 

crediting Hyun Kwon’s statements that “he had extensive 

discussions with Katofsky regarding issues beyond the 

preparation of the 1031 exchange documents, including tax 

planning, trust administration, and potential distribution of trust 

assets.” 

The court concluded Katofsky’s disqualification was 

imputed to Salomons, reasoning: “The Declarations of Jeff 

Katofsky and Gary Salomons fail to address the factors which 

courts consider in deciding whether an ethical wall will impose 

an effective screen. As such Plaintiff [Park] has not met the 

burden of rebutting the presumption of imputed knowledge which 

requires disqualification.”

DISCUSSION

Park contends the trial court erred in disqualifying 

Katofsky and Salomons from representing her in this action 

because, among other things, (1) Katofsky never had an attorneyclient relationship with the Kims and, (2) even if he did, they had 

no reasonable expectation that their communications with him 

would be kept confidential from Park during the prior joint 

representation. We note that on appeal, Park does not analyze 

Salomons’s disqualification separately and apart from Katofsky’s.
20

I. Katofsky Had an Attorney-Client Relationship With 

the Kims

“ ‘Except for those situations where an attorney is 

appointed by the court, the attorney-client relationship is created 

by some form of contract, express or implied, formal or 

informal.’ . . . [¶] ‘An implied contract is one, the existence and 

terms of which are manifested by conduct.’ (Civ. Code, § 1621.) 

‘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.’ ” 

(Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th

1717, 1732-1733, italics omitted (Responsible Citizens).)

A court considers the totality of the circumstances in 

determining whether an attorney-client relationship exists. The 

client’s expectation of the situation, measured by a reasonable 

person in the client’s position, is one of the most important 

factors in the determination. (Responsible Citizens, supra, 16 

Cal.App.4th at p. 1733.)

“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. [¶] . . . [¶] 

Generally, in the absence of express findings, we will presume 

the court found in favor of the prevailing party on all disputed 

factual issues. [Citation.] Our task in such cases is to determine 

if the presumed findings are supported by substantial evidence. 

[Citation.] That presumption is not appropriate, though, when 

the record reveals the court based its ruling on an interpretation 

of law, rather than a resolution of disputed facts.” (Responsible 

Citizens, supra, 16 Cal.App.4th at pp. 1733-1734.)
21

Here, as the trial court concluded, Katofsky alleged in the 

original complaint an express oral agreement between the Kims 

and himself for the provision of legal services. He asserted the 

Kims asked him to perform “significant legal work,” they agreed 

to pay for it, and they “received legal services.” He referenced 

and attached to the complaint (and Park attached to the first 

amended complaint) a “copy of an email confirming” such 

agreement. In the email, Hyun Kwon thanked Katofsky for 

speaking with him and “explaining 1031 exchange laws” to him. 

Hyun Kwon outlined proposed terms for an agreement to transfer 

the Moorpark Property from the Trust to Park a year after the 

close of escrow, and asked if such terms would “work for the 

agreement.” He told Katofsky he valued his expertise and was 

“always open for better ways.” He encouraged Katofsky to obtain 

Park’s input regarding the proposed terms. Finally, he told 

Katofsky he would pay him to memorialize the terms outlined in 

the email exchange.

Neither Katofsky’s assertions in the original complaint, nor

the contents of Hyun Kwon’s email “confirming” the 

arrangement, suggest Katofsky was merely tasked with 

preparing a first draft of the PSA and closing documents, at the 

Kims’ expense, for the Kims to review with their own, 

independent counsel. Rather, substantial evidence shows 

Katofsky provided legal advice to the Kims regarding how to 

structure the purchase of the Moorpark Property and transfer 

their share to Park a year down the line. Katofsky drafted a 

second agreement for the Kims, to which Park was not a party, 

regarding the sale of the Moorpark Property to a limited liability 

company. The trial court found the Kims did not have their own 

attorney representing them in connection with the Moorpark 
22

Property transaction, and they relied on Katofsky’s advice and 

expertise. We have no cause to disturb the trial court’s credibility 

determination on this issue.

Park argues it was not reasonable for the Kims to believe 

their adversary—the seller/seller’s counsel—was representing 

them—the buyers—in connection with the Moorpark Property 

transaction. And yet Katofsky acknowledges he was representing 

Park—the Kims’ co-buyer—in the same transaction. That

Katofsky was the longtime Park family lawyer and, initially, 

Park was the only one communicating with him, is beside the 

point. The record shows there came a time when Hyun Kwon 

was consulting Katofsky with such frequency that Park faulted 

him for incurring additional legal fees, to which he responded 

that he would pay the fees. In emails between Hyun Kwon and 

Katofsky, and text messages between Hyun Kwon and Park, 

Hyun Kwon encouraged additional consultation between 

Katofsky and Park regarding the proposed structure of the 

transaction that Hyun Kwon was discussing with Katofsky.

As Park emphasizes, “payment of attorney fees alone does 

not determine an attorney-client relationship; it is merely a 

factor.” (Strasbourger Pearson Tulcin Wolff Inc. v. Wiz 

Technology, Inc. (1999) 69 Cal.App.4th 1399, 1404 

(Strasbourger).) This is not a case like those Park and her 

“expert” describe in which a party agrees to pay the opposing 

side’s attorney fees for drafting documents. For one thing, the 

documents themselves in this case do not memorialize such an 

agreement. Moreover, there are other factors demonstrating an 

attorney-client relationship, which we have already reviewed

above.
23

A lengthy discussion of the cases Park relies on is not 

warranted, as they are readily distinguishable, and her reliance 

is misplaced. A key factor emphasized in many of these cases is 

that the party claiming the relationship with an attorney had 

separate, independent counsel advising the party with respect to 

the transaction at issue. (See, e.g., Strasbourger, supra, 69 

Cal.App.4th at pp. 1404-1405.) That factor is not present in this 

case, as the trial court found. As discussed above, substantial 

evidence demonstrates the only attorney advising the Kims and 

performing legal work on their behalf with respect to the 

Moorpark Property transaction was Katofsky.

Having decided there was an attorney-client relationship 

between Katofsky and the Kims, we must now determine 

whether a disqualifying conflict of interest exists.

II. Katofsky’s Former Joint Representation of Park and 

the Kims is Substantially Related to Katofsky’s 

Current Representation of Park, and Access to 

Confidential Information Is Presumed

Under the State Bar Rules of Professional Conduct, “A 

lawyer who has formerly represented a client in a matter shall 

not thereafter represent another person in the same or a 

substantially related matter in which that person’s interests are 

materially adverse to the interests of the former client unless the 

former client gives informed written consent.” (Rules Prof. 

Conduct, rule 1.9(a).) The “ ‘chief fiduciary value jeopardized’ ” in 

such a successive representation “ ‘is that of client 

confidentiality.’ ” (M’Guinness v. Johnson (2015) 243 Cal.App.4th

602, 613, italics omitted (M’Guinness).) 

“In successive representation cases, where the former client 

seeks to disqualify counsel from representing a successive client 
24

in current litigation adverse to the former client’s interest, the 

former client must ‘demonstrate a “substantial relationship”

between the subjects of the antecedent and current 

representation.’ ” (M’Guinness, supra, 243 Cal.App.4th at p. 614, 

italics omitted.) If the prior “representation was ‘direct—that is, 

where the lawyer was personally involved in providing legal 

advice and services to the former client’ [citation] the only 

question is whether there is a substantial relationship between 

the subject of the prior representation and the subject of the 

current representation. If the answer is yes, ‘access to 

confidential information by the attorney in the course of the first 

representation (relevant, by definition, to the second 

representation) is presumed and disqualification of the attorney’s 

representation of the second client is mandatory. . . .’ ” 

(Fiduciary Trust Internat. of California v. Superior Court (2013) 

218 Cal.App.4th 465, 479 (Fiduciary Trust).) “On the other hand, 

where the former attorney-client relationship is peripheral or 

attenuated instead of direct, then the presumption will not be 

applied in the absence of an adequate showing that the attorney 

was in a position vis-à-vis the client to likely have acquired 

confidential information.” (Jessen v. Hartford Casualty Ins. Co.

(2003) 111 Cal.App.4th 698, 710.)

“In determining whether a conflict of interest requires 

disqualification,” the “ ‘paramount concern must be to preserve 

public trust in the scrupulous administration of justice and the 

integrity of the bar. The important right to counsel of one’s 

choice must yield to ethical considerations that affect the 

fundamental principles of our judicial process.’ ” (Fiduciary

Trust, supra, 218 Cal.App.4th at p. 478.)
25

“ ‘Generally, a trial court’s decision on a disqualification 

motion is reviewed for abuse of discretion. [Citations.]’

[Citation.] As to disputed factual issues, a reviewing court’s role 

is simply to determine whether substantial evidence supports the 

trial court’s findings of fact; ‘the reviewing court should not 

substitute its judgment for . . . express or implied [factual] 

findings [that are] supported by substantial evidence. 

[Citations.]’ [Citation.] As to the trial court’s conclusions of law, 

however, review is de novo; a disposition that rests on an error of 

law constitutes an abuse of discretion. [Citations.] The trial 

court’s ‘application of the law to the facts is reversible only if 

arbitrary and capricious.’ ” (In re Charlisse C. (2008) 45 Cal.4th 

145, 159.)

Katofsky’s representation of the Kims was direct, not 

peripheral or attenuated. Hyun Kwon, on behalf of himself and 

Hesook, was in consultation with Katofsky, and Katofsky 

provided legal services directly to the Kims (as he alleged in the 

original complaint). It is obvious there is a substantial 

relationship between Katofsky’s prior joint representation of 

Park and the Kims and the current representation of Park—they 

involve the same real property transaction. Accordingly, 

Katofsky’s access to confidential information during the course of 

the prior representation is presumed and Katofsky’s/Salomons’s

disqualification from the current representation is mandatory. 

Katofsky advised the Kims how to structure the Moorpark 

Property transaction for tax planning and trust administration 

purposes; now, members of his firm (first himself, then Salomons) 

are representing Park in prosecuting this action against the 

Kims, challenging the Kims’ actions with respect to the same 

transaction.
26

Park argues a substantial relationship between the prior 

and current representations is not sufficient to require 

Katofsky’s/Salomons’s disqualification because Katofsky was not 

in a position in the prior representation to receive confidential 

information from the Kims that they would have reasonably 

expected Katofsky to keep confidential from Park. Our analysis 

here does not turn on Evidence Code section 962, however,—the 

exception to the attorney-client privilege between joint clients. 

This statutory provision does not “create[] a blanket exception to 

the prohibition on adverse, successive representations in cases 

where the attorney jointly represented the parties in the prior 

matter.” (Fiduciary Trust, supra, 218 Cal.App.4th at p. 482.)

Moreover, cases that have indicated “there may be some 

circumstances under which an attorney may represent one 

former joint client against another in a substantially related 

matter” typically turn on the salient and distinguishable factor 

we highlighted above—whether the party claiming the 

relationship with an attorney had separate, independent counsel 

advising the party with respect to the transaction at issue. As 

one appellate court explained: 

“While we agree an attorney should not always be free to 

represent one former joint client against another merely because 

of the joint-client exception to the attorney-client privilege and 

we can easily envision situations where such action would 

seriously undermine the integrity of the attorney-client 

relationship, the present case is not such a situation. Here 

petitioner [a contractor] maintained an attorney-client 

relationship with his personal attorney. There is no evidence 

petitioner ever reposed confidence and trust in [a surety’s 

attorney’s firm] or ever sought or obtained advice from [the 
27

surety’s attorney] but rather at all times looked solely to his 

personal attorney not only to advise him but to represent his 

interests vis-a-vis [the surety’s attorney] and [the surety]. 

Petitioner knew [the surety’s attorney] considered [the surety] its 

primary client and knew that in the event of a conflict between 

petitioner [the contractor] and [the surety], [the surety’s 

attorney] would continue to represent [the surety]. Thus our 

conclusion is based on the specific facts present. Our conclusion 

would be significantly altered if petitioner [the contractor] had 

not been independently represented by counsel or if there was 

evidence that petitioner [the contractor] looked to both its 

personal counsel and [the surety’s counsel] for advice and 

counsel.” (Cornish v. Superior Court (1989) 209 Cal.App.3d 467, 

477-478.)

Under the facts and circumstances of this case, the trial 

court did not abuse its discretion in ordering the disqualification 

of Katofsky and Salomons. There was no legal error, and the 

court’s factual findings are supported by substantial evidence.

DISPOSITION

The order is affirmed. Respondents are entitled to recover 

their costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J. WEINGART, J.