Filed 2/1/24 Karma Capital v. Nakhleh 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KARMA CAPITAL, INC. et al,

Plaintiffs and Appellants,

v.

ELIAS NAKHLEH et al.

Defendants and Respondents.

 D080588

 (Super. Ct. No. 37-2021-

00001088-CU-FR-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Katherine A. Bacal, Judge. Affirmed.

Mirch Law Firm, Kevin Mirch, and Marie C. Mirch, for Plaintiffs and 

Appellants.

Gordon Rees Scully Mansukhani, Matthew G. Kleiner, and Andrea K. 

Williams, for Defendants and Respondents.

Karma Capital, Inc. (Karma), Marcus Gates, and Trisha Gates (Karma, 

Marcus, and Trisha, collectively Appellants) appeal an order granting a 

motion to disqualify their counsel, the Mirch Law Firm and its attorneys (the 

Mirch Firm) from representing Appellants in their lawsuit against Elite 
2

Restaurant Group, Inc. (Elite), Elias Nakhleh (Elite and Elias, together 

Respondents), and others.

This appeal follows the third time the Mirch Firm has been disqualified 

in representing various plaintiffs who allege they were duped by Respondents 

and others into purchasing worthless restaurant franchises. Here, the 

operative complaint concerns Appellants’ acquisition of eight Daphne’s 

restaurants in San Diego County and names Elite, Michael Nakhleh, Elias

Nakhleh, and others as defendants.1 In the other two suits, the Mirch Firm 

represented multiple franchisees of the Slater’s 50/50 brand in lawsuits 

against Slater’s 50/50 Franchise, LLC (Slater’s) (the franchisor), Elite (its 

parent company), and Elias and Michael (the principals for Slater’s and 

Elite). Despite the instant matter concerning Daphne’s franchises, the claims 

made here are similar to those made in the other two cases. 

The first case was a civil action filed in federal court where the Mirch 

Firm was representing franchisee Zia Abhari in a civil action against Elite 

and Slater’s (Abhari litigation). In that case, Elite and Slater’s successfully 

moved to disqualify the Mirch Firm based on the firm’s communications with 

and connections to Martin Reiner. Although Reiner was disbarred by the 

State Bar of California in 2017, he nevertheless held himself out to be a 

licensed attorney. Abhari referred to Reiner as his “attorney” and 

recommended him to Michael to handle a legal issue Slater’s and Elite were 

experiencing. Michael hired Reiner and gave him a check for $10,000, which 

Michael believed to be an attorney retainer fee. Additionally, Reiner 

requested that Michael sign a document to authorize Reiner to represent 

1 Because Michael and Elias share the same surname, we will refer to 

them by their respective first names to avoid confusion. We do the same for 

Marcus and Tricia Gates. In addition, we observe that Michael has not been 

served in the instant action. 
3

Elite and Slater’s in a trademark infringement lawsuit. Reiner then 

proceeded to commence a trademark infringement suit for the “ ‘50/50 

Burger’ ” trademark in Los Angeles Superior Court. Whether an attorneyclient relationship was thus formed between Reiner on the one hand and 

Elite, Slater’s, and Michael on the other was a contested issue in the Abhari 

litigation. Also, the Mirch Firm challenged whether it had acquired any 

attorney-client privileged information from Reiner, who appeared with the 

Mirch Law Firm at a mediation between the plaintiffs (who included Abhari)

and Slater’s. The district court ultimately answered the two preceding 

questions in the affirmative and granted the motion to disqualify the Mirch 

Firm. The Ninth Circuit affirmed the order. (See Mirch Law Firm, LLC v. 

Nakhleh (9th Cir. May 26, 2022, No. 20-56207) [2022 U.S.App. LEXIS 14564, 

at pp. *3–4] (Mirch Law Firm, LLC).)

In a similar suit filed in Orange County Superior Court wherein the 

Mirch Firm represented plaintiffs suing Slater’s, Elite, and Elias (the Slater’s

parties), the trial court granted the Slater’s parties’ motion to disqualify the 

Mirch Firm. In doing so, the court found: (1) Elite and Slater’s reasonably 

believed they had an attorney-client relationship with Reiner in a trademark 

infringement suit; (2) Reiner asked Michael, as a principal of both companies, 

to sign a conflict waiver to allow Reiner to pursue another claim against Elite 

and Slater’s in another federal action; (3) Reiner took certain actions to 

convince others he was a licensed attorney; (4) during a mediation, the Mirch 

Firm described Reiner as a “ ‘lawyer with licensing problems’ ”; (5) Michael 

disclosed to Reiner sensitive information concerning the business operations, 

assets, and proprietary procedures relative to Elite and Slater’s; (6) the 

information provided to Reiner was relevant to the plaintiffs’ claims against 

the Slater’s parties; and (7) the Mirch Firm received several e-mails from 
4

Reiner. Based on these communications, the trial court found that the 

Slater’s parties established that Reiner was given privileged information, 

which he, in turn, conveyed to the Mirch Firm. And the court concluded that 

the plaintiffs did not meet their burden of rebutting the presumption that the 

Mirch Firm received privileged information. Our colleagues in Division 

Three of the Fourth Appellate District affirmed this order in an unpublished 

opinion. (See Ace Foods, LLC v. Slater’s 50/50 Franchise, LLC (Mar. 14, 

2023, G061049) [nonpub. opn.] (Ace Foods).) 

In the instant matter, largely based on much of the same evidence 

offered in the previous two cases, the trial court granted Respondents’ motion 

to disqualify the Mirch Firm. In doing so, the court found Respondents had 

shown that the Mirch Firm received confidential information, including 

communications between Michael and Reiner. Thus, the court concluded a 

rebuttable presumption arose that Reiner disclosed or provided access to 

privileged information to the Mirch Firm. Moreover, the court found that the 

Mirch Firm had not rebutted this presumption. Although the Mirch Firm 

attested that they did not receive any privileged information, the court 

determined “the weight of the evidence show[ed] otherwise.” 

Appellants contend the trial court erred in granting the disqualification 

motion because: (1) there was no attorney-client relationship between Reiner 

and Respondents; (2) even if there was an attorney-client relationship, there 

was a joint representation relationship with Abhari and communications 

made during the joint representation are not privileged; (3) Respondents

waived the attorney-client privilege when they filed e-mails between Michael 

and Reiner as exhibits in its motion to disqualify counsel in the Abhari 

litigation; (4) because the attorney-client relationship between Reiner and 

Respondents ended in January 2020, the court erred by relying on 
5

communication between Reiner and Michael after this date as evidence the 

Mirch Firm obtained confidential information; and (5) Respondents failed to 

establish the Mirch Firm received any information or documents from Reiner. 

We observe these are similar (if not the same) arguments that were advanced 

in Ace Foods, supra, G061049. Like Division Three, we also reject each of 

Appellants’ contentions and affirm the court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2018, Appellants purchased eight Daphne’s restaurants in 

the San Diego area for $1.7 million. Appellants allege that Michael, 

Respondents, and others engaged in a scheme to “flip” Daphne’s restaurants, 

inflating their value and committing other wrongful acts associated with the 

sale of these establishments.2 Therefore, Appellants brought suit alleging 

nine causes of action in the operative complaint.

In 2019, Michael was a principal for Elite. At that time, Elite owned 

the trademarks and other intellectual property for the Daphne’s restaurant 

franchises as well as the Slater’s 50/50 brand. In June of that year, he had a 

meeting with Abhari, who owned two Slater’s franchises in Southern 

California. During their meeting, Michael and Abhari discussed “certain 

legal issues” Slater’s and Elite were encountering. Abhari recommended 

Michael retain his attorney Reiner to represent Elite and Slater’s.

Michael met privately with Reiner at Abhari’s office outside the 

presence of Abhari. During the meeting, Reiner told Michael about his 

litigation work on other matters. Reiner informed Michael a $10,000 retainer 

fee would be required if Elite and Slater’s wanted to retain his services, and 

2 The alleged scheme also involved the sale of Slater’s, Noons, Gigi’s, 

Marie Calendar’s, Mimi’s Café, and Patxi’s Pizza franchises.
6

after payment, they would be his client and he could start working on their 

trademark infringement lawsuit.

Reiner gave Michael an Assignment of Claim document for signature 

and a cover letter. The header on these documents indicated they were from 

“Hill Collections, Inc.” Both documents were signed by Reiner. The 

Assignment of Claim stated Michael, as agent for Elite, “hereby assigns to, 

and authorizes, Hill Collections, Inc. (‘Assignee’), to do all things legally 

necessary for[ ] a claim for trademark infringement, and/or other legal 

theories, adverse to Frontiere Natural Meats, LLC, and/or other parties 

involved in that infringement, and to obtain and enforce a judgment, or for 

other compromise resolution, which in the Assignee’s opinion is satisfactory.” 

The Assignment of Claim indicated Hill Collections would retain 30 percent 

of the amount collected and the remaining 70 percent would be disbursed to 

Michael for Elite. The Assignment of Claim specified a $10,000 “commencing 

fee” was “to be paid by the Assignor for all attorney fees, court filing fee costs, 

and process serving costs.” Elite was also responsible for other litigation 

costs, including depositions and expert fees. The cover letter directed 

Michael to pay the “commencement fee” to Reiner personally.

In the cover letter, Reiner explained the assignment contract capped 

attorney fees and court filing fees for pursuing a trademark infringement 

claim and advised Michael he would “save a substantial amount of money by 

having the claim prosecuted through [an] assignment.” Reiner also cautioned 

Michael, “Time is of the essence because trademark infringement claims can 

be subject to such defenses as laches, and waiver, so we want to get started 

as very soon as is possible.”
7

Michael signed the Assignment of Claim document and provided Reiner 

a $10,000 check from “Slater’s 50/50 Franchise, LLC,” “for what [he] 

understood was, and intended to be, an attorney retainer fee.”

After signing the Assignment of Claim document and paying Reiner’s 

fee, Michael believed he, as principal for Elite and Slater’s, had an attorneyclient relationship with Reiner. Based on this belief, Michael disclosed to 

Reiner sensitive information concerning the “business operations, assets, and 

proprietary procedures relative to Elite (and Slater’s Franchise), including 

the business practices . . . , the standard franchise agreements, [and] specific 

business transactions.” At Reiner’s request, Michael provided documents and 

information about Slater’s 50/50, including the operations and inner 

workings of Elite and Slater’s Franchise, and various contracts and related 

documents. Michael also provided Reiner confidential internal information 

about Elite and Slater’s Franchise’s other disputes and transactions. Michael 

provided this information to Reiner because he believed it was protected by 

attorney-client privilege.

In August 2019, Hill Collections filed a trademark infringement action 

in the Superior Court of California, County of Los Angeles, acting as the 

assignee of Elite’s claims. The complaint filed in the action identified 

Christopher Weston as the attorney for Hill Collections. Reiner’s name does 

appear on the documents as he signed the proof of service for the summons 

and complaint to the named defendants.

The trademark infringement case was removed to federal court, and 

the defendants moved to dismiss it. Reiner e-mailed Michael and requested 

certain documents for the opposition to the motion to dismiss. Michael 

forwarded the request to a colleague, explaining his attorney needed the 
8

information for the lawsuit. The federal court dismissed the case in 

December 2019.

During the trademark infringement litigation, Michael believed Reiner 

was his attorney. Michael was unaware Weston was listed as counsel on the 

superior court filing. Michael received no communication from Weston; all 

the communication he received regarding the status of the litigation came 

from Reiner.

After the trademark infringement case was dismissed, Reiner offered to 

refile the lawsuit. He also requested Michael provide a conflict waiver to 

enable him to pursue Abhari’s legal claims against Elite and Slater’s. 

Michael refused. Michael then ended the attorney-client relationship with 

Reiner. 

Without a waiver, Reiner began pursuing Abhari’s claims against Elite 

and Slater’s, acting as the legal representative for Abhari and Abhari’s 

company Donya. Reiner engaged in settlement discussions with Michael’s 

business counsel regarding the claim. He also e-mailed a settlement offer to 

the insurance company concerning the claim. Reiner’s e-mails with the 

insurance company and business counsel were sent from his e-mail address 

“martinreinerlaw@yahoo.com.”

Shortly thereafter (March 2020), Michael and his business counsel 

realized Reiner had been disbarred by the State Bar of California and was 

not a licensed attorney. When Michael questioned Reiner about this, Reiner 

denied his license had been suspended or that he had been disbarred. Reiner

asserted: “Any order to either effect is legally null and void. Furthermore, 

I have never represented myself to you as acting as an attorney. I am here in 

the capacity as the office manager. If anyone represented anything different 

about me, they were incorrect. Respectfully, your misperceptions about me 
9

should not interfere with your need to communicate your consent to the claim 

made with [the insurance company].” In response, Michael stated Reiner had 

represented to him that he was an attorney. Michael also sent a screen shot 

of Reiner’s profile on the State Bar of California’s website, which showed 

Reiner was disbarred and prohibited from practicing law. Reiner claimed the 

“State Bar’s representation” was not “the official word” and was “fake news.”

Michael repeated his claim Reiner had represented to him that he was 

an attorney “multiple times.” Additionally, Michael pointed out to Reiner 

that Reiner’s “own texts and emails to [Michael] have represented that 

[Reiner is] an attorney.” Michael also emphasized that when he first met 

Reiner, Reiner said he was an attorney and Abhari had shared e-mails and 

texts stating Reiner was Abhari’s attorney. Michael’s business counsel stated 

he believed Reiner had been acting as counsel for Abhari and Donya during 

their discussions, and he suggested Reiner change his e-mail address to avoid 

misleading others.

In June 2020, the Mirch Firm filed the complaint in the Abhari 

litigation, alleging, among other things, that the Slater’s parties made certain

misrepresentations to Abhari to induce him to purchase two Slater’s 

restaurants. The Slater’s parties were represented in the litigation by the 

law firm of Gordon Rees Scully Mansukhani (Gordon Rees). The parties and 

their attorneys participated in mediation. Reiner attended the mediation 

with Abhari. At the mediation, the Mirch Firm represented to opposing 

counsel that Reiner was a “ ‘lawyer with licensing problems.’ ”

A Gordon Rees attorney subsequently communicated with the Mirch 

Firm about Reiner’s role with the Mirch Firm. The attorney stated she 

recently learned Reiner had served as counsel for Slater’s and Elite in the 

trademark infringement litigation and during this representation he had 
10

obtained privileged attorney-client information. She believed the Mirch 

Firm’s involvement with Reiner required the Mirch Firm to withdraw from 

the Abhari litigation or be disqualified.

The Mirch Firm responded there was no basis for disqualification. It 

denied Reiner worked with the firm and that he was “acting in any capacity 

as an attorney” in the case. The Mirch Firm represented Reiner did clerical 

work for Abhari and was present at the mediation to assist Abhari “with the 

language barrier.”

In a subsequent letter to opposing counsel, the Mirch Firm stated that 

at the mediation, Reiner “was introduced as a lawyer with licensing 

problems . . . acting as an assistant to Mr. Abhari and Donya 

Entertainment.” The Mirch Firm indicated it was shocked to learn Reiner 

had been retained by Michael. One of the attorneys at the Mirch Firm stated 

she had never met Reiner face to face and had only limited conversations 

with him. She expressed her understanding he was “an unlicensed attorney 

fighting a disciplinary matter and acting as an employee for Donya 

Entertainment.”

After being notified of the communication between the Mirch Firm and 

Gordon Rees, Reiner then e-mailed the Gordon Rees attorneys representing 

the Slater’s parties from his “martinreinerlaw@yahoo.com” e-mail address 

and copied attorneys at the Mirch Firm. In the e-mail, he denied serving as 

counsel for Michael, Slater’s, or Elite. He stated he had “communicated with 

the Mirch Firm as a witness” and he worked for Abhari and Abhari’s 

businesses “in a non-professional capacity.” He cautioned the Gordon Rees 

attorneys, “[t]he only way in which you can proceed with your proposed 

motion [for disqualification] is by Michael Nakhleh committing the crime of 
11

perjury, which would necessitate [Gordon Rees] committing the crime of 

suborning Michael Nakhleh’s perjury. Respectfully, do not do that.”

The Slater’s parties moved to disqualify the Mirch Firm from the 

Abhari litigation in federal court. In support of the opposition to that motion, 

Reiner submitted a declaration. In his declaration, Reiner admitted he was 

disbarred in 2017 but stated he contested his disbarment as “null and void for 

being premised upon a wrongful deprivation of [his] [p]rocedural [d]ue 

process.” He declared he worked for Abhari’s companies as an office manager 

and not as an attorney. Reiner averred he met with Michael and had him 

sign the Assignment of Claim form, but Reiner denied presenting himself as 

an attorney for Elite and Slater’s and stated it was unreasonable for Michael 

to claim Reiner was an attorney for those companies. Reiner also denied 

receiving any confidential or attorney-client privileged information from 

Michael, Slater’s, or Elite. He asserted the information he received from 

them was public information and had no relevance to the Abhari litigation. 

He denied providing to or discussing with the Mirch Firm any information or 

documents he received in the trademark infringement litigation.

To support its opposition to the disqualification motion, the Mirch Firm 

submitted e-mails between Michael and Reiner it claimed had been provided 

by Abhari. Abhari, however, had not been included as a recipient on some of 

these e-mails. The Mirch Firm also submitted an e-mail it received from 

Reiner explaining Michael “wired the money for Hill Collections, Inc.’s 

litigation expenses to [Reiner’s] bank account” for the trademark 

infringement litigation “because Hill Collections, Inc. had been recently 

formed” and did not have a corporate bank account at that time.3

3 The record indicates that Michael wrote a check to Reiner and did not 

wire money to Reiner’s account.
12

During the Abhari litigation, the Mirch Firm sent correspondence to 

the Slater’s parties’ counsel regarding an argument made in the trademark 

infringement case—the “argument that Slater’s 50/50 is not a proper 

trademark/tradename because it is a ‘non-famous generic name’ not eligible 

for such action.” The Mirch Firm claimed Abhari would not have purchased 

the franchise if he had known the legitimacy of the trademark/tradename 

was at issue. The Mirch Firm further asserted the Nakhlehs and Slater’s did 

not disclose these trademark/tradename problems. With the letter, the Mirch 

Firm sought the names of witnesses to depose “to determine the time of 

Nakhleh Defendants’ knowledge that Slater’s 50/50 franchises [were] 

worthless.”

The federal district court granted the defendants’ motion to disqualify 

the Mirch Firm as Abhari’s counsel. The federal court found Reiner falsely 

represented to the Slater’s parties he was their attorney and obtained 

privileged information relevant to the Abhari litigation. The court further 

found the Mirch Firm was using that privileged information “to gain a 

tactical advantage in [the] case.” Based on Reiner’s admission he had 

communicated with the Mirch Firm as a witness and Reiner’s attendance at 

the mediation, the court found there was a legal presumption the Mirch Firm 

“ ‘possesses confidential attorney-client information materially related to the 

proceedings before the court,’ and that this information ‘has been used or 

disclosed.’ [Citation.]” The district court found the Mirch Firm failed to 

rebut this presumption and concluded disqualification was the appropriate 

remedy.

The Mirch Firm appealed, and in an unpublished opinion, the Ninth 

Circuit affirmed the district court’s order granting defendants’ motion to 

disqualify the Mirch Firm finding that Reiner had obtained privileged 
13

information from Elite and Slater’s, that the privileged information was 

material to the underlying lawsuit, and that there was “a ‘sound basis,’

[citation], for the district court’s conclusion that disqualification was required 

to remedy the unfair advantage that Plaintiffs obtained through Mirch’s 

representation.” (Mirch Law Firm, LLC, supra, 2022 U.S.App. LEXIS 14564, 

at p. *4.)

The Mirch Firm also represented Ace Foods, LLC and Seth Lindauer in 

a lawsuit filed in the Orange County Superior Court, naming Elite, the 

Nakhlehs, and others as defendants (Orange County litigation). Similar to 

the instant matter and the Abhari litigation, the plaintiffs in the Orange 

County litigation were franchisee owners and alleged similar claims in their 

complaint as those alleged in the present lawsuit. Elite, Slater’s, and Elias 

filed a motion to disqualify the Mirch Firm relying on the same facts 

presented in the Abhari litigation. The superior court granted the motion 

finding that Reiner had received privileged information, which he provided to 

the Mirch Firm.

The disqualification order was appealed, and on March 14, 2023, 

Division Three of this court affirmed the order. (Ace Foods, supra, G061049.) 

Here, the Mirch Firm represented Appellants in their suit against 

Respondents and others. Again, the Mirch Firm represented entities that 

purchased restaurant franchises that they claim have been overvalued and 

misrepresented by the named defendants. Again, the Mirch Firm faced a 

motion to disqualify their firm based on information they received from 

Reiner. And again, a trial court granted a disqualification motion aimed at 

the Mirch Firm. The court explicitly found that Respondents proved the 

Mirch Law Firm received confidential information, including communications 

between Michael and Reiner. As such, the court concluded that “a rebuttable 
14

presumption arose that Reiner disclosed or provided access to privileged 

information to the Mirch Firm.” The court also determined that the Mirch 

Firm has not rebutted the presumption and that the “weight of the evidence 

shows” that the Mirch Firm did receive confidential, privileged information 

from Reiner. Further, the court specifically considered and rejected the 

Mirch Firm’s claim that the disqualification motion stemmed from 

disqualification orders that occurred in other courts concerning the sale of 

different restaurant franchises than the ones at issue in this case: “Even so, 

the information Elite provided Reiner is relevant to [Appellants’] claims, 

particularly given the breadth of the allegations in the operative complaint.”

Appellants timely appealed.

DISCUSSION

A. Standard of Review

Appellants challenge the trial court’s order granting Respondents’ 

motion to disqualify the Mirch Firm. They claim that the applicable 

standard of review is de novo. Not so.4 “ ‘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 

4 Although Appellants acknowledge that the abuse of discretion standard 

of review typically applies to an appellate court reviewing an order to 

disqualify an attorney, they assert the underlying facts here are undisputed. 

Thus, they urge us to apply a de novo standard of review. We disagree. As 

we shall discuss post, Appellants maintain that certain evidence presented to 

the court was manufactured and ask us to disregard it. Additionally, the 

parties challenge some of the trial court’s factual findings, which we review 

for substantial evidence. As such, the underlying facts appear to be highly 

contested among the parties, and thus, de novo review is inappropriate.
15

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.’ [Citation.]” (In re 

Charlisse C. (2008) 45 Cal.4th 145, 159 (Charlisse C).) We therefore apply 

this widely accepted standard of review to the issues presented here.

B. Relevant Law

“ ‘A trial court’s authority to disqualify an attorney derives from the 

power inherent in every court “[t]o control in furtherance of justice, the 

conduct of its ministerial officers, and of all other persons in any manner 

connected with a judicial proceeding before it, in every matter pertaining 

thereto.” [Citations.]’ [Citation.]” (Charlisse C., supra, 45 Cal.4th at p. 159.) 

“Ultimately, disqualification motions involve a conflict between the clients’ 

right to counsel of their choice and the need to maintain ethical standards of 

professional responsibility. [Citation.] 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. [Citations.]” (People ex rel. Dept. of Corporations v. SpeeDee Oil 

Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) 

“It is well established that an attorney, after severing his or her 

relationship with a client, ‘may not do anything which will injuriously affect 

his former client in any matter in which he formerly represented him nor 

may he at any time use against his former client knowledge or information 

acquired by virtue of the previous relationship.’ [Citations.]” (O’Gara 

Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1124.) This prohibition is 
16

based on governing case law and rule 1.9(a) of the State Bar Rules of 

Professional Conduct, which prohibits “[a] lawyer who has formerly 

represented a client in a matter” from representing “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.”

C. Attorney-Client Relationship

The trial court found that “Elite reasonably believed Martin Reiner was 

acting as its attorney.” Appellants contend there was no attorney-client 

relationship. We disagree and conclude the court’s finding is supported by 

substantial evidence.

“California’s attorney-client privilege is embodied in [Evidence Code] 

section 950 et seq. and protects confidential communications between a client 

and his or her attorney made in the course of an attorney-client relationship. 

[Citations.]”5 (Edwards Wildman Palmer LLP v. Superior Court (2014) 

231 Cal.App.4th 1214, 1224.) “Section 951 defines ‘client,’ for purposes of the 

privilege, as ‘a person who, directly or through an authorized representative, 

consults a lawyer for the purpose of retaining the lawyer or securing legal 

service or advice from him in his professional capacity . . . .’ [Citation.]

Section 950 defines ‘lawyer’ as ‘a person authorized, or reasonably believed by 

the client to be authorized, to practice law in any state or nation.’ [Citation.]” 

(Edwards Wildman, at p. 1225.) Section 952 defines “ ‘confidential 

communication between client and lawyer’ ” as “information transmitted 

between a client and his lawyer in the course of that relationship and in 

confidence . . . .” Section 954 states a client “has a privilege to refuse to 

5 Statutory references are to the Evidence Code unless otherwise 

specified.
17

disclose, and to prevent another from disclosing, a confidential 

communication between client and lawyer . . . .”

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

express or implied, formal or informal. [Citations.]” (Fox v. Pollack (1986) 

181 Cal.App.3d 954, 959.) A party’s subjective belief an attorney-client 

relationship exists is insufficient, standing alone, to create such a 

relationship or a duty of care owed to the party by the attorney. (Zenith 

Ins. Co. v. O’Connor (2007) 148 Cal.App.4th 998, 1010 (Zenith).) A party 

“cannot unilaterally establish an attorney-client relationship, and its 

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.]” (Ibid.)

Against this legal backdrop, we evaluate whether the trial court’s 

finding of an attorney-client relationship is supported by substantial 

evidence. Respondents’ motion to disqualify the Mirch Firm included 

Michael’s declaration. In it, he declared he believed an attorney-client 

relationship was formed with Reiner after Michael signed the Assignment of 

Claim document and paid Reiner the $10,000 fee required to commence the 

trademark infringement litigation. This belief was reasonable but is 

insufficient by itself to establish the existence of an attorney-client 

relationship. (Zenith, supra, 148 Cal.App.4th at p. 1010.) However, there are 

additional facts concerning Michael’s and Reiner’s conduct that reflect on 

their intent. After Michael mentioned his companies had a legal issue, 

Abhari recommended his attorney Reiner to Michael. When Michael met 

him, Reiner presented himself as an attorney and told Michael about his 

litigation work on other matters. At times, Reiner used the e-mail address of 
18

“martinreinerlaw@yahoo.com,” suggesting he was an attorney. These facts 

establish Reiner presented himself as an attorney and Michael reasonably 

believed Reiner was authorized to practice law.

Reiner presented Michael with an Assignment of Claim document and 

demanded a fee before he would begin working on the trademark 

infringement lawsuit on behalf of Slater’s and Elite. Michael declared Reiner 

stated Slater’s and Elite would be his clients after payment of the fee. The 

Assignment of Claim and the cover letter with it, both signed by Reiner, are 

reasonably understood by a layperson as creating an attorney-client 

relationship. In the cover letter, Reiner explained the assignment contract 

capped “attorney fees” for pursuing the trademark infringement claim. It was 

reasonable for Michael to believe an attorney-client relationship was formed 

when he signed the Assignment of Claim document and paid a retainer fee

directly to Reiner. Moreover, during the trademark litigation, Reiner 

contacted Michael regarding the status of the case and requested Michael 

provide documents from Elite to support the trademark infringement claim.

Thus, there was sufficient evidence an attorney-client relationship was 

created between Reiner and Elite.

Arguing there was no attorney-client relationship, Appellants attack 

the validity of the Assignment of Claim document. They assert it was altered 

and was not signed by Reiner. There is no evidence in the record the 

document was altered and the record contains one copy signed only by Reiner 

and a second copy signed by both Michael and Reiner. In addition, 

Appellants appear to be asking us to reweigh the evidence considered by the 

trial court. This is not our role in evaluating a trial court’s factual finding for 

substantial evidence. (See Shadow Traffic Network v. Superior Court (1994) 

24 Cal.App.4th 1067, 1087 (Shadow Traffic).)
19

Appellants rely on Fink v. Shemtov (2012) 210 Cal.App.4th 599 and 

assert an assignment of claim does not create an attorney-client relationship.

They read the holding in Fink too broadly. In that case, the Third Division of 

this court concluded assignment “arrangements are legal in collection cases 

and do not create an attorney-client relationship between the assignor and 

the assignee.” (Id. at p. 603.) In contrast, here, the assignment agreement 

was not in a collection case. Moreover, the assignment agreement in the 

instant matter was substantially different from the assignment agreement in 

Fink. (Id. at p. 604.)

Based on the foregoing, we conclude the trial court properly found an 

attorney-client relationship existed between Reiner and Elite. Therefore, 

confidential communications made during the course of that relationship are 

protected by the attorney-client privilege. (§ 952.)

D. Joint Representation

Appellants alternatively argue that even if there was an attorney-client 

relationship between Reiner and Elite, the trial court erred in ignoring 

Michael’s “sworn admission that a joint representation existed between 

himself, Elite, Elias Nakhleh, Abhari, Hill Collections and Reiner as his 

attorney.”6 As such, Appellants maintain Respondents are barred by 

section 9627 “from asserting an attorney client privilege under their theory of 

the case.” 

6 Appellants’ representation of Michael’s declaration is not supported by 

the record.

7 Section 962 provides “[w]here two or more clients have retained or 

consulted a lawyer upon a matter of common interest, none of them . . . may 

claim a privilege under this article as to a communication made in the course 

of that relationship when such communication is offered in a civil proceeding 

between one of such clients . . . and another of such clients . . . .”
20

Respondents argue that Appellants did not make this argument below. 

Appellants counter that the Mirch Firm raised a joint representation 

argument at the hearing on Respondents’ motion to disqualify. However, 

Appellants do not point to where they made an argument regarding joint 

representation in their written opposition to the disqualification motion. 

Moreover, our review of the record shows that Appellants made no such 

argument until the hearing on the motion. 

The trial court was not required to consider the issue of joint 

representation because it was not fully developed or factually presented in 

Appellants’ trial court briefs in a manner that would permit Respondents to 

provide a meaningful response. (Cf. American Continental Ins. Co. v. C & Z 

Timber Co. (1987) 195 Cal.App.3d 1271, 1281 [“possible theories that were 

not fully developed or factually presented to the trial court cannot create a 

‘triable issue’ ” for summary judgment].) As a general rule of motion practice, 

courts ordinarily do not consider new issues and evidence presented in reply 

papers because it deprives the opposing party of an opportunity to counter 

the argument. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537–1538.) 

For the same reason, as a matter of fairness, courts may decline to consider 

issues raised for the first time at oral argument. (California Redevelopment 

Assn. v. Motosantos (2013) 212 Cal.App.4th 1457, 1500.) Because the issue 

was not raised below, the trial court did not have an opportunity to consider 

evidence as to whether there was a joint representation of “two or more 

clients” with a “common interest.” (§ 962.) And as Appellants did not 

adequately raise this issue in the trial court, they are precluded from raising 

the issue on appeal. (Holden v. City of San Diego (2019) 43 Cal.App.5th 

404, 419.) As such, we will not consider it for the first time here as we deem 

this argument forfeited. (In re N.R. (2017) 15 Cal.App.5th 590, 598 [claim 
21

involving “issue of fact rather than a pure question of law,” is forfeited by 

failure to raise it below].)

Even if Appellants had not forfeited this argument, we would not 

reverse the trial court’s disqualification order on this ground. The possibility 

that some of Michael’s communications with Reiner might be unprotected 

under the joint-client exception (§ 962) does not negate the requirement of 

disqualification in this case. Disclosure of client communication is not the 

only concern; there are also broader interests at play. (Western Continental 

Operating Co. v. Natural Gas Corp. (1989) 212 Cal.App.3d 752, 761–762 

[“Our courts have distinguished the rule against representing conflicting 

interests from the attorney-client evidentiary privilege noting that the former 

is broader than the latter”].) “The California Supreme Court 

has . . . repeatedly held that the disqualification rules are not merely 

intended to protect client confidences or other ‘interests of the parties’; 

rather, ‘[t]he paramount concern . . . [is] to preserve public trust in the 

scrupulous administration of justice and the integrity of the bar.’ [Citation.]

In light of these significant public interests, we do not agree that matters of 

disqualification should be determined solely by reference to evidentiary 

rules.” (Fiduciary Trust Internat. of California v. Superior Court (2013) 218 

Cal.App.4th 465, 485–486, fn. omitted.) As to the issue of attorney 

disqualification, in the instant matter especially, joint representation is not 

dispositive. (Id. at pp. 482–486.)

E. Waiver

“ ‘Once the proponent makes a prima facie showing of a confidential 

attorney-client communication, it is presumed the communication is 

privileged and the burden shifts to the opponent to establish waiver, an 

exception, or that the privilege does not for some other reason apply.’ 
22

[Citations.]” (McDermott Will & Emery LLP v. Superior Court (2017) 10 

Cal.App.5th 1083, 1101.) Appellants contend the trial court erred by failing 

to recognize that Respondents “waived the attorney[-]client privilege when 

they filed protected documents in federal court in the Abhari litigation.” We 

disagree. Appellants have failed to establish Respondents waived their 

privilege.

A judgment or order is presumed correct, and reversible error must be 

affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) 

“Every argument presented by an appellant must be supported by both 

coherent argument and pertinent legal authority.” (Kaufman v. Goldman

(2011) 195 Cal.App.4th 734, 743 (Kaufman).) “Generally, asserted grounds 

for appeal that are unsupported by any citation to authority and that merely 

complain of error without presenting a coherent legal argument are deemed 

abandoned and unworthy of discussion.” (Wright v. City of Los Angeles (2001) 

93 Cal.App.4th 683, 689; see United Grand Corp. v. Malibu Hillbillies, LLC

(2019) 36 Cal.App.5th 142, 162 (United Grand Corp.) [“ ‘In order to 

demonstrate error, an appellant must supply the reviewing court with some 

cogent argument supported by legal analysis and citation to the record.’ ”) 

Appellants assert Respondents included certain e-mails between Reiner 

and Michael in the disqualification motion filed in the Abhari litigation, and 

by doing so, Respondents waived attorney-client privilege as to all of their 

communications with and information provided to Reiner. To this end, they 

represent:

“Exhibit S in the Abhari Motion to Disqualify is the same 

as Mirch’s Ex. 13 in Abhari opposition; similarly . . .

Exhibit F in Abhari is the same as Mirch’s Ex. 15; . . . Ex. Q 

in Abhari is the same as Mirch’s Ex. 18; . . . Ex. J in Abhari 

is the same as Mirch’s Ex 19; and . . . Exhibit R in Abhari is 

the same as Mirch’s Ex 22.”
23

In support of this argument, Appellants point us to the declaration of 

Marie Mirch, filed in the instant action, wherein she attests that the alleged 

privileged e-mails constituting Exhibits 13, 15, 18, 19, 21, and 22 “came into

the Mirches’ possession when [Elite and Slater’s] filed them publically [sic] as 

exhibits to their motion to disqualify.” We note that Kevin Mirch made a 

similar representation in his declaration filed in the instant matter as well. 

Thus, based on those two declarations filed below, Appellants claim that they 

came into possession of the subject e-mails after Elite and Slater’s filed those 

e-mails in support of their motion to disqualify in the Abhari litigation. 

Notably, Appellants have not cited to Slater’s and Elite’s actual filing of the 

e-mails in the district court. Rather, they rely on their declarations to offer 

the conclusion the exhibits are the same.

Further, we observe that in filing Exhibits 13, 15, 18, 19, 21, and 22 in 

support of the opposition to the motion to disqualify in the Abhari litigation, 

the plaintiffs filed a notice of lodgment that included a declaration from 

Kevin Mirch. In that declaration, Kevin Mirch stated that he received the 

subject exhibits from Abhari. Therefore, Kevin Mirch’s declaration in the 

Abhari litigation calls into question Appellants’ representation in the instant 

matter that they came into possession of the subject e-mails when Slater’s 

and Elite filed them in support of their disqualification motion in district 

court. 

Here, Appellants’ waiver argument hinges upon their representation 

that they came into possession of the subject e-mails when the defendants

filed those e-mails as part of their motion to disqualify in the Abhari 

litigation. Yet, that contention is contradicted by Kevin Mirch’s declaration 

wherein he claims Abhari gave him the e-mails. As such, the factual premise
24

on which Appellants rely is contested, and we cannot resolve a factual 

dispute in an abuse of discretion review. (See Charlisse C., supra, 45 Cal.4th 

at p. 159.)

Below, the superior court made a finding that Appellants had not 

waived the attorney-client privilege by filing the subject e-mails in support of 

their qualification. That finding is supported by substantial evidence based 

on Kevin Mirch’s declaration that he received the subject e-mails from 

Abhari. Those e-mails were between Michael and Reiner. Abhari introduced 

Michael to Reiner and told Michael that Reiner was his attorney. Reiner 

appeared with Abhari at the mediation of the Abhari litigation. Thus, the 

trial court could reasonably infer that Reiner was communicating with one of 

the parties suing Respondents (Abhari) and his new attorneys (the Mirch 

Firm). 

And Appellants have failed to provide us with adequate legal authority 

to support their challenge here. Indeed, the only authority Appellants cite to 

support their waiver argument is rule 502 of the Federal Rules of Evidence 

(28 U.S.C.), but they do not sufficiently explain why the district court or the

superior court erred in failing to find waiver under that rule.8 Accordingly, 

Appellants have not carried their burden on appeal as to their waiver 

argument. (See Kaufman, supra, 195 Cal.App.4th at p. 743; United Grand 

Corp., supra, 36 Cal.App.5th at p. 162.)

8 Additionally, any waiver by Respondents of their attorney-client 

privilege in the disqualification motion in the Abhari litigation did not 

absolve Reiner of his breach of his duty of loyalty to Elite, which took place 

before the filing of the disqualification motion, or his obligation to maintain 

his clients’ confidences. Moreover, it is Kevin Mirch’s declaration filed in the 

Abhari litigation that strongly supports this conclusion. 
25

F. Trial Court’s Reliance on Communications After the Termination of 

the Attorney-Client Relationship

Appellants take issue with the following finding of the trial court: 

“ . . . Def.’s Ex. 26 (referencing exs. 16-17, 20-21). That exhibit, however, 

shows Mirch received the communications between [Michael] and Reiner and 

the contents do not indicate a voluntary disclosure of Elite’s confidential 

privileged information.” Appellants contend the trial court erred by relying 

on these communications because they are not attorney-client confidential 

communications. We see no error in the trial court’s discussion of these 

e-mails.

As a threshold matter, we observe that Appellants do not appreciate 

the context in which the trial court discussed Exhibit 26. The court 

specifically cited to that exhibit when addressing Appellants’ waiver 

argument. To this end, the court stated: 

“[Appellants] also argue defendants waived the privilege 

when they filed the certain emails in support of their 

disqualification motion. Opp. at 12-14, citing e.g., Def.’s 

Ex. 26 (referencing exs. 16-17, 20-21). That exhibit, 

however, shows Mirch received the communications 

between [Michael] and Reiner and the contents do not 

indicate a voluntary disclosure of Elite’s confidential 

privileged information.”

The court relied on these communications as evidence Reiner was 

providing information to the Mirch Firm, even if it was ultimately provided 

by Abhari. The trial court’s finding that these communications came from 

Reiner, not Abhari, is supported by substantial evidence. Each 

communication was between Reiner and Michael; Abhari was not included in 

them. Thus, it is evident Reiner was the source of these communications. 
26

And they are evidence Reiner was transmitting communications he had with 

his former client, privileged or not, to counsel for the adversary of his former 

client.

Moreover, Exhibit 26 consisted of a portion of the documents that the 

plaintiffs (represented by the Mirch Firm) filed in support of their opposition 

to the motion to disqualify in the Abhari litigation. Many of these documents 

consist of e-mails between Michael and Reiner, and some specifically relate to 

Michael’s belief that Reiner was Elite’s attorney for a period of time. In 

addition, there was an email from Reiner (with the address 

martinreinerlaw@yahoo.com) addressed to attorneys at the Mirch Firm, 

claiming that Michael had paid money to Reiner, leading to the reasonable 

inference that Reiner was sharing information with the Mirch Firm about his 

dealings with Michael and Elite, even discussing the context of his legal 

representation of Elite.

G. Presumption That Material Confidential Information was 

Transmitted to the Mirch Firm

Appellants contend the trial court should have denied the 

disqualification motion because Respondents failed to satisfy their burden of 

showing the privileged attorney-client information Reiner received in the 

trademark infringement litigation was material to the current matter. 

Appellants also assert they rebutted the presumption the Mirch Firm 

received privileged communications from Reiner as the firm’s attorneys 

attested they received the information in their complaint from sources other 

than Reiner.

When determining whether the Mirch Firm had presumed or actual 

access to material, privileged information, the trial court relied on Shadow 

Traffic, supra, 24 Cal.App.4th 1067. There, the court concluded that once the 

party moving for disqualification has established its counsel transmitted 
27

confidential information to the potential expert, “ ‘a rebuttable presumption 

arises that the information has been used or disclosed in the current 

employment. The presumption is a rule by necessity because the party 

seeking disqualification will be at a loss to prove what is known by the 

adversary’s attorneys and legal staff. [Citation.]’ [Citation.]” (Id. at p. 1085.) 

“As the purpose of this presumption is to implement the public policy of 

protecting confidential communications, the presumption is one affecting the 

burden of proof. [Citation.] The effect of this type of presumption ‘is to 

impose upon the party against whom it operates the burden of proof as to the 

nonexistence of the presumed fact.’ [Citation.]” (Ibid.) Further, the trial 

court found plaintiff’s attorneys had transmitted confidential information to 

an expert subsequently retained by the defendant’s attorneys, giving rise to 

the presumption the expert used or disclosed this confidential information in 

its employment with the defendant’s attorneys. The burden then shifted to 

the defendant’s attorneys to persuade the court by a preponderance of the 

evidence it had not received the confidential information. (Ibid.)

Employing this analysis in the instant matter, the trial court found 

that Respondents had shown that the Mirch Firm received confidential 

information, “including communications between [Michael] and Reiner, via 

Zia Abhari.” This finding is supported by substantial evidence based on the 

multiple e-mails the Mirch Firm had in its possession that were between 

Michael and Reiner. In addition, at least one email from Reiner to attorneys 

at the Mirch Firm indicated that he was talking with those attorneys 

regarding his interaction with Michael regarding the previous trademark 

litigation. The court found the information and documentation conveyed to 

Reiner was materially relevant to the instant matter. This finding is 

supported by substantial evidence. During the Orange County litigation, the 
28

Mirch Firm sent a letter to counsel for the Slater’s parties, acknowledging 

information in the trademark infringement litigation was relevant to Ace 

Foods’ claims concerning the value, or lack thereof, of the Slater’s franchise. 

Moreover, the trial court below observed that, although the instant matter 

concerned different plaintiffs than the Abhari litigation and Orange County 

litigation, the information Elite provided to Reiner was “relevant to 

[Appellants’] claims, particularly given the breadth of the allegations in the 

operative complaint.” For example, the operative complaint in the instant 

action accuses Respondents (among others) of engaging in a “nationwide” 

“scheme” to inflate the value of various franchises and entice would be buyers 

to overpay for them. And the complaint specifically includes allegations that 

“Daphne’s, Slater’s and Mimi restaurants were all part of the scheme.” The 

complaint in the Abhari litigation also included alleged wrongdoing involving 

the value of certain Daphne’s restaurant franchises as did the operative 

complaint in the Orange County litigation.9 Therefore, the trial court’s 

findings triggered the presumption Reiner disclosed material confidential 

information to the Mirch Firm in his communications with them. (Shadow

Traffic, supra, 24 Cal.App.4th at p. 1085.)

“When a judicially created presumption affecting the burden of proof is 

triggered, the question of whether the party who has the burden of 

establishing the nonexistence of the presumed fact has carried its burden of 

persuasion is an issue for the trier of fact to decide, not a reviewing court. 

[Citation.] Thus, we may not reweigh the evidence or substitute our 

deductions for those of the trial court. [Citations.]” (Shadow Traffic, supra, 

9 Indeed, the complaint in the Abhari litigation specifically mentions the 

eight Daphne’s restaurants that Karma purchased, which are the basis for 

the instant matter.
29

24 Cal.App.4th at p. 1087.) Here, the trial court found the Mirch Firm’s 

declarations stating they had no relationship with Reiner were insufficient to 

rebut the presumption, given the other evidence showing Reiner was 

providing information to them and Reiner’s declaration stating he had 

communicated with the firm as a witness in the Abhari litigation. The trial 

court also found not credible the Mirch Firm’s claim Reiner was only acting 

as a translator for Abhari at the mediation hearing. We will not reweigh the 

evidence or substitute our deductions for those of the trial court. Because 

Appellants failed to rebut the presumption Reiner disclosed material 

confidential information to the Mirch Firm, the trial court did not abuse its 

discretion in granting the motion to disqualify the Mirch Firm.

DISPOSITION

The order disqualifying the March Firm is affirmed. Respondents are 

entitled to their costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

DO, J.

CASTILLO, J.