1

Filed 9/27/21 Moreci v. Scaffold Solutions CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

VINCE MORECI,

Plaintiff,

v.

SCAFFOLD SOLUTIONS, INC.,

Defendant and Respondent;

STARSTONE NATIONAL 

INSURANCE COMPANY,

Intervener and Appellant.

 A161193

 (San Francisco County

 Super. Ct. No. CGC17558931)

Vince Moreci sustained work-related injuries assertedly caused by his 

use of a scaffolding stairwell constructed by Scaffold Solutions, Inc. (Scaffold). 

Moreci received workers’ compensation benefits that were paid by Starstone 

National Insurance Company (Starstone). Moreci, while represented by 

Boxer and Gerson, LLP (Boxer Gerson), filed a personal injury action against 

third party defendants, including Scaffold. Moreci settled the case. As part 

of the settlement, Moreci agreed to assume the defense of Scaffold for claims 

arising from Moreci’s accident and pay any resulting judgment. 

Prior to the dismissal of Moreci’s action, Starstone intervened, seeking 

reimbursement from the defendants for the amount of benefits it had paid to
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Moreci. Boxer Gerson became associated co-counsel for Scaffold, who then 

filed an answer to Starstone’s complaint in intervention. Starstone moved to 

disqualify Scaffold’s attorneys on the ground they created a conflict of 

interest by representing Moreci in the underlying action against Scaffold, 

obtaining a settlement of that action, and then assuming the defense of 

Scaffold to Starstone’s claims in intervention. The trial court held Starstone 

had no standing to seek the disqualification of counsel and denied the motion.

Starstone appeals, asserting essentially the same arguments in support of 

standing it had raised below. We reject its claims of error, and we affirm. 

BACKGROUND

The Parties and the Pleadings

In June 2015, Moreci, while employed by Hydra Ventures, Inc. as a 

plumber, fell and injured himself at a construction project site when he 

descended a scaffolding staircase with uneven stair risers. Fulton Street 

Construction, Inc. (Fulton) and Erik Liu were the general contractor of the 

construction project and an executive of Fulton, respectively. Fulton 

subcontracted with Stockham Construction, Inc. (Stockham) to install 

exterior framing for the project. Stockham, in turn, subcontracted with 

Scaffold to construct sets of temporary scaffolding stairs for the project. 

Starstone was the workers’ compensation carrier for Moreci’s employer 

and paid Moreci $236,945.97 in benefits. 

In May 2017, Moreci, represented by Boxer Gerson and Gary Roth, a 

member of the law firm, filed a personal injury complaint against Fulton and 

Liu. Fulton and Liu filed a cross-complaint for indemnification and 

contribution, eventually amending the cross-complaint to add Scaffold as a 

cross-defendant. Scaffold, in turn, filed a cross-complaint against Stockham 
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for indemnification and contribution. Moreci did not immediately serve 

Starstone with a copy of the complaint. 

In October 2019, Boxer Gerson gave Starstone notice of the November 

mediation date and copies of the underlying pleadings in the case, along with 

a request for further information concerning the workers’ compensation 

benefits it had paid to Moreci. Starstone’s attorneys attended the mediation 

on November 19. 

On November 21, a notice of settlement of the entire case was filed. 

In January 2020, Starstone filed a complaint in intervention against 

Scaffold and Stockham seeking reimbursement for workers’ compensation 

benefits it had paid to Moreci. 

On February 25 and March 11, the trial court entered the dismissals of 

the complaint and cross-complaints. 

On June 2, Scaffold filed a notice that its attorneys, Wolfe and Wyman, 

LLP, were associating attorneys Gary Roth and Eric Ritigstein of Boxer 

Gerson as co-counsel. Scaffold then filed an answer to Starstone’s complaint

in intervention, asserting numerous affirmative defenses including the 

contributory negligence of Moreci’s employer. 

On June 29, Stockham filed a cross-complaint against Moreci for 

breach of written contract, express indemnity, and declaratory relief. The 

claims were based on a term in the settlement agreement, whereby Moreci 

agreed he “will fully satisfy and obtain the release of, and indemnify, defend 

and hold harmless Defendants [CROSS-COMPLAINANT] from, any lien, 

claim, loss, demand or cause of action, by any parties, agencies, insurers 

(including but not limited to medical insurers and workers’ compensation 

insurers such as Starstone), governmental entities, or others claiming to have 

suffered damage, loss or expense by reason of the matters at issue in the 
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Subject Action . . .” (usually referred to herein as “indemnification 

provision”).1 Moreci, through his counsel Boxer Gerson, filed an answer to 

Stockham’s cross-complaint. 

The Disqualification Motion

On July 16, Starstone filed a motion to disqualify all of Scaffold’s

attorneys of record. The motion was based on the indemnification provision. 

Specifically, Starstone argued Moreci and Boxer Gerson “switch[ed] sides” in 

the same lawsuit by “alleg[ing] fault and liability against [Scaffold] to obtain 

settlement,” and then, once Starstone filed its complaint-in-intervention, 

aligned themselves with Scaffold to use “intimate . . . case knowledge and 

possibly privileged information” gained by counsel in an “attempt to defeat 

[Starstone’s] recovery claim (and thus keep settlement funds and achieve a 

double recovery specifically denounced by the Legislature) . . . .” Starstone

asserted counsel’s “switching sides attempt has infected . . the litigation,”

which Starstone claimed was sufficient to give it standing as a non-client,

pursuant to a Federal District Court case, Colyer v. Smith (1999) 

50 F.Supp.2d 966 (Colyer). 

Moreci and Scaffold separately opposed the motion. Moreci argued 

Starstone lacked standing because Starstone had no “attorney-client, 

confidential, or fiduciary relationship with counsel.” Moreci and Scaffold 

1 Stockham’s cross-complaint is the only document in the record in 

which the terms of the indemnification provision appear; a copy of the 

settlement agreement is not included. Also, the indemnification provision as 

alleged refers to Moreci’s agreement to defend and indemnify as to “CrossComplainant” Stockham only, and not any other defendants. However, we 

will assume, as the parties do, that Scaffold was a party to the settlement 

agreement and Moreci agreed to defend and indemnify Scaffold. 

Furthermore, we note that our resolution of this appeal does not require us to 

interpret the indemnification provision or address whether it is enforceable, 

and we decline Starstone’s invitation for us to do so. 
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each maintained Starstone also failed to establish the standing requirements 

under the exception in Colyer. 

Starstone replied to the opposition, refuting the contention it lacked 

standing based on its right under the workers’ compensation statutes (Lab. 

Code, § 3850 et seq.) to seek reimbursement for compensation benefits it had 

paid to Moreci. According to Starstone, it had standing because its 

reimbursement right constitutes “a clear, concrete and particularized 

interest” that would be invaded by Boxer Gerson’s continued participation. 

After conducting a hearing on August 11, the trial court denied 

Starstone’s motion to disqualify opposing counsel for lack of standing. The 

trial court explained Starstone had failed to show it had an attorney-client 

relationship with Scaffold’s attorneys. It further found Starstone had no 

standing even under the “minority view” recognized in Colyer and cited by 

Starstone, because Starstone failed to show an “invasion of a legally 

protected interest which is (a) concrete and particularized, and (b) actual or 

imminent, not conjectural or hypothetical.” At most, Starstone alleged 

merely a generalized interest in “the court’s obligation to ensure the fair 

administration of justice,” an interest insufficient “to give a non-client 

standing.” 

Starstone appeals. 

DISCUSSION

The Law on Standing and Standard of Review

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 
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thereto.” (Code Civ. Proc., § 128, subd. (a)(5); City and County of San 

Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846.)

“A ‘standing’ requirement is implicit in disqualification motions.” 

(Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356

(Great Lakes).) A party moving to disqualify counsel must have a legally 

cognizable interest that would be harmed by the attorney’s conflict of 

interest. (Id. at p. 1357.) Courts have found an attorney-client relationship 

between the complaining party and the attorney sought to be disqualified is a 

prerequisite to seeking disqualification. (Id. at p. 1356; Strasbourger Pearson 

Tulcin Wolff Inc. v. Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399, 1404

[“An attorney-client relationship must have existed before disqualification is 

proper”].) 

“Other courts, however, have slightly broadened the scope of that 

general rule,” holding that a non-client may bring a disqualification motion 

based on an attorney’s breach of a duty of confidentiality owed to the nonclient. (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 352, citing DCH Health 

Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832 (DCH Health Services) 

[“Standing arises from a breach of the duty of confidentiality owed to the 

complaining party, regardless of whether a lawyer-client relationship 

existed”].) 

As it did below, Starstone relies on Colyer, supra, 50 F.Supp.2d 966, 

which recognized what California courts have described as the “minority” 

view for standing to bring a disqualification motion.2 (See Great Lakes, 

2 Starstone asserts “there is insufficient authority to characterize 

standing by a non-party movant in a disqualification motion as a ‘minority 

view.’ ” We disagree. Colyer itself described the view as an “exception” to the 

general rule that only a client or former client could object to an allegedly 

adverse representation. (See Colyer, supra, 50 F.Supp.2d at p. 969, citing In 
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supra, 186 Cal.App.4th at p. 1357; In re Marriage of Murchison, supra, 245 

Cal.App.4th at p. 852.) Colyer addressed the question of when a party has 

standing to move to disqualify opposing counsel based on that counsel’s 

breach of its duties of loyalty and confidentiality to a third party. (Colyer, at 

p. 969.) The court noted standing to bring a disqualification motion in federal 

court that is based on a conflict of interest ordinarily is limited to clients or 

former clients, but as Great Lakes described, “Colyer, however, recognized a 

minority view that a non-client might have standing to bring a 

disqualification motion. A non-client must establish a ‘personal stake’ in the 

motion to disqualify opposing counsel that is sufficient to satisfy the standing 

requirements of article III of the United States Constitution. [Citation.]

‘Generally, only the former or current client will have such a stake in a 

conflict of interest dispute.’ [Citation.] But, where the ethical breach is “ 

‘manifest and glaring’ ” and so ‘infects the litigation in which disqualification 

is sought that it impacts the moving party’s interest in a just and lawful 

determination of [his or] her claims’ [citation], a non-client might meet the 

standing requirements to bring a motion to disqualify based upon a third 

party conflict of interest or other ethical violation.” (Great Lakes, supra, 186 

Cal.App.4th at p. 1357, quoting Colyer, supra, 50 F.Supp.2d at pp. 971–972.) 

After articulating this view, the Colyer court, however, did not invoke 

the minority rule. (Colyer, supra, 50 F.Supp.2d at pp. 972–973.) The court 

found Colyer did not have a personal stake in the duty of loyalty opposing 

counsel owed to his client and would suffer no harm from any purported 

re Yarn Processing Patent Validity Litigation v. Leesona Corp. (5th Cir. 1976) 

530 F.2d 83, 89 (In re Yarn Processing).) And two of the four published 

California cases citing Colyer expressly refer to that exception as a “minority” 

view. (See Great Lakes, supra, 186 Cal.App.4th at p. 1357; In re Marriage of 

Murchison (2016) 245 Cal.App.4th 847, 852.) 
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breach. (Id. at p. 972.) It explained: “His broad interest in the 

administration of justice is insufficiently concrete and particularized to 

support a finding of standing here. The alleged conflict—if it exist[ed]—

simply [did] not rise to the level where it infects the proceedings and 

threatens Colyer’s individual right to a just determination of his claims.” 

(Id. at p. 973.) The court added, “to the extent Colyer argues that he has 

standing to complain of a breach of confidentiality because any such breach

will increase his chances of losing this lawsuit, his abstract interest in 

winning or losing this litigation is not legally cognizable. All plaintiffs have a 

stake in winning the cases they file, but this tactical ‘interest’ cannot 

independently satisfy Article III.” (Ibid.) Thus, the court denied the motion 

to disqualify based on lack of standing. 

Great Lakes read Colyer as “recogniz[ing] a minority view inasmuch as 

it permits a non-client to move to disqualify opposing counsel.” (Great Lakes, 

supra, 186 Cal.App.4th at p. 1358.) However, “its minority view does not 

alter well-established standing requirements” because “the non-client must 

meet stringent standing requirements, that is, harm arising from a legally 

cognizable interest which is concrete and particularized, not hypothetical.” 

(Id. at pp. 1357, 1358, citing Colyer, supra, 50 F.Supp.2d at pp. 971–973.) 

Great Lakes also agreed with Colyer that “imposing a standing requirement 

for attorney disqualification motions protects against the strategic 

exploitation of the rules of ethics and guards against improper use of 

disqualification as a litigation tactic.” (Great Lakes, at p. 1358, citing Colyer, 

at p. 973.) 

Starstone appears to propose another rule: “[S]tanding requires only 

that the moving party establish harm to the moving party by the continued 

participation of counsel . . . .” For this proposition, Starstone relies in part on 
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Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1205 (Kennedy),

3 which 

concluded “where an attorney’s continued representation threatens an 

opposing litigant with cognizable injury or would undermine the integrity of 

the judicial process, the trial court may grant a motion for disqualification, 

regardless of whether a motion is brought by a present or former client of 

recused counsel.” There, in a child custody dispute between a mother and 

father, the trial court granted the mother’s motion to disqualify the child’s 

paternal grandfather from representing the child’s father. The grandfather 

was an attorney who had previously represented the maternal grandfather in 

a family law matter, in which mother had filed declarations per the request of 

that attorney’s firm. (Id. at pp. 1201–1202.) The mother also had previously 

worked for that attorney’s firm. (Id. at p. 1202.) In holding the mother had 

standing as a non-client, the court noted that through his prior 

representation of the maternal grandfather, the attorney almost certainly 

learned confidential facts about the mother’s family situation that could be 

used against her in the custody dispute. (Id. at pp. 1205, 1207–1208.) The 

court also explained that, “[b]ecause of the close relationship between [the 

mother] and her father, the similarity between the two cases and the 

3 Starstone also cites DCH Health Services, supra, 95 Cal.App.4th 829, 

and FMC Technologies, Inc. v. Edwards (W.D. Wash. 2006) 420 F.Supp.2d 

1153. Neither stands for the broad proposition advanced by Starstone. 

Although Starstone correctly notes that DCH Health Services explained that 

an attorney-client relationship is not the only way to establish standing to 

bring a disqualification motion, it nonetheless required a confidential 

relationship between the movant and target attorney. (DCH Health Services, 

supra, 95 Cal.App.4th at pp. 832–833.) And FMC Technologies, Inc. v. 

Edwards, supra, 420 F.Supp.2d at pp. 1156–1157, cited the exception for nonclient standing in Colyer, which, as explained above, “does not alter wellestablished standing requirements” although it recognizes a minority view in 

allowing non-clients in proper circumstances to move to disqualify counsel.

(Great Lakes, supra, 186 Cal.App.4th at p. 1357.) 
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overlapping factual issues common to both, we also conclude that [mother] 

and her father should be treated as a single unit for purposes of determining 

whether an ethical conflict exists.” (Id. at p. 1208.) 

Thus, despite the broad language in Kennedy quoted by Starstone, it 

was ultimately the attorney’s possession of information the non-client had 

shared confidentially, as well as the close relationship between the non-client 

and the attorney’s former client, that justified disqualification. (See Acacia

Patent Acquisition, LLC v. Superior Court (2015) 234 Cal.App.4th 1091, 1100

[observing Kennedy’s “holding was tethered to messy interfamilial 

squabbles”].) Accordingly, to the extent Starstone contends Kennedy supports 

a broad rule that any injury to it in litigation, regardless of the source, is 

sufficient to confer standing, we do not believe this is a fair reading of 

Kennedy. 

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

reviewed for abuse of discretion.” (People ex rel. Dept. of Corporations v. 

SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143.) However, 

where the trial court’s ruling is based on a legal conclusion, such as lack of 

standing, we review the order de novo in light of the relevant legal principles. 

(Great Lakes, supra, 186 Cal.App.4th at p. 1354.) 

The Trial Court Properly Denied the Disqualification Motion

As noted, the trial court concluded Scaffold had no standing to move to 

disqualify Boxer Gerson on two grounds: first, Starstone never had an 

attorney-client relationship with Boxer Gerson; and second, even in the 

absence of such a relationship, under Colyer, it failed to show counsel’s 

continued participation would invade “ ‘a legally protected interest which is 

(a) concrete and particularized, and (b) actual or imminent, not conjectural or 
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hypothetical.’ ” Starstone contends the trial court’s conclusions were error.4 

We disagree. 

It is undisputed Starstone never had an attorney-client relationship 

with Boxer Gerson. Starstone also has submitted no evidence of any 

confidential or fiduciary relationship between it and Boxer Gerson, nor a 

legally cognizable expectation of confidentiality with Boxer Gerson. In fact, 

Starstone states its “disqualification motion is not based on a breach of duty 

of confidentiality, an expectation of confidentiality, a fiduciary relationship, a 

privileged relationship, breach of duty of loyalty, or a traditional conflict of 

interest”—as acknowledged and confirmed at oral argument that loyalty and 

confidentiality are “not involved.” Therefore, under the general standing 

rules requiring “some sort of confidential or fiduciary relationship” (Dino v. 

Pelayo, supra, 145 Cal.App.4th at p. 353; DCH Health Services, supra, 

95 Cal.App.4th at p. 832), the trial court correctly determined Starstone 

lacked standing to move to disqualify Boxer Gerson. 

Starstone nonetheless asserts it had standing as a non-client under 

Colyer, its claimed “personal stake” based on its status as Moreci’s employer’s

workers’ compensation insurer, particularity its right under the workers’ 

compensation statutes to seek reimbursement for benefits it paid to Moreci.

Starstone’s opening brief presents a lengthy discussion of those statutes in an 

attempt to define the respective legal interests and obligations of an 

4 Although Starstone’s motion sought to disqualify all of the attorneys 

of record for Scaffold, including Wolfe and Wyman, its claims of error on 

appeal are solely directed at Boxer Gerson and its member, Gary Roth. 

Therefore, to the extent Starstone continues to seek the disqualification of 

Wolfe and Wyman as well, we consider those claims abandoned. (See Berger 

v. Godden (1985) 163 Cal.App.3d 1113, 1117 [“failure of appellant to advance 

any pertinent or intelligible legal argument . . . constitute[s] an abandonment 

of the [claim of error”].)
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employee and employer in a lawsuit involving workers’ compensation and a 

third party. As fleshed out below, we understand the thrust of Starstone’s 

standing argument to be that because of the “unique relationship” between 

an employer and employee within the workers’ compensation scheme, Boxer 

Gerson was prohibited from taking a position adverse to the employer once it 

represented the employee in a personal injury action against alleged third 

party tortfeasor. 

Before addressing these arguments, we provide an overview of the 

relevant workers’ compensation laws. 

An employee injured in the course of employment is entitled to receive 

compensation benefits from his or her employer without regard to negligence

of either the employee or the employer. (Lab. Code, § 3600, subd. (a).) The 

employee’s claim for compensation benefits is the employee’s exclusive 

remedy against the employer; the employee generally may not sue the 

employer to recover in tort. (Id., §§ 3601, 3602, subd. (a).) But this does not 

preclude suit by the employee against a negligent third party. (Id., § 3852). 

An employee or employer who sues a third party is required to notify 

the other forthwith by personal service or certified mail and file proof of 

service in the action. (Lab. Code, § 3853.) The employer has a right to 

intervene in any action brought by the employee against a third party 

tortfeasor. (Ibid.) 

To prevent an employee from retaining a double recovery—i.e., both 

third party damages and workers’ compensation benefits for the same 

injuries and disabilities—an employer may recoup the benefits it has paid to 

the employee by utilizing any of three different means: (1) a direct action 

against the third party (Lab. Code, § 3852); (2) as a party or an intervener in 

an action by the employee against the third party (id., § 3853); or (3) as a lien 
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claimant against the employee’s recovery in an action against the third party 

(id., § 3856, subd. (b)). (Abdala v. Aziz (1992) 3 Cal.App.4th 369, 374–375.) 

The employer’s right to reimbursement may be limited or denied if the 

employer’s negligence contributed to or caused the employee’s injuries. 

(DaFonte v. Up–Right, Inc. (1992) 2 Cal.4th 593, 599; Witt v. Jackson (1961) 

57 Cal.2d 57, 69, 71–73 (Witt).) 

“The California workers’ compensation scheme seeks to ensure that, 

regardless of whether the employee or the employer sues the third party, 

both recover their due, and, as far as possible, the third party need defend 

only one lawsuit.” (O’Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, 

653 (O’Dell).) 

With respect to the settlement of claims with a third party tortfeasor 

by either the employee or employer, prior to 1971, no such settlement was 

valid without the written consent of the other. (O’Dell, supra, 10 Cal.App.4th 

at p. 655.) “This provision prevented both the employee and the employer 

from settling with a third party tortfeasor at the expense or disadvantage of 

the other and encouraged employers and employees to settle their claims 

simultaneously. [Citations.]

“However, when the Supreme Court in Witt[, supra, 57 Cal.2d 57] held 

the third party tortfeasor could assert the employer’s concurrent negligence 

to defeat the employer’s subrogation rights, the mutual consent provision 

gave the negligent employer ‘bargaining power in the settlement context 

unrelated to the likelihood of its success in any litigation. By taking 

advantage of an employee’s or third party’s interest in a quick settlement, a 

contributorily negligent employer could conceivably coerce an employee or 

third party into allowing it to share in a settlement.’ [Citations.]
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“In order to free the employee from the necessity of obtaining the 

employer’s consent before settling with a third party tortfeasor, the 

Legislature amended sections 3859 and 3860 in 1971. Subdivision (b) was 

added to section 3859. It states: ‘Notwithstanding anything to the contrary 

contained in this chapter, an employee may settle and release any claim he 

[or she] may have against a third party without the consent of the employer. 

Such settlement or release shall be subject to the employer’s right to proceed 

to recover compensation [the employer] has paid in accordance with Section 

3852.’ [Citation.]

“Section 3860, subdivision (b), was amended to read in part: ‘Except as 

provided in section 3859, the entire amount of such settlement, with or 

without suit, is subject to the employer’s full claim for reimbursement for 

compensation [the employer] has paid or become obligated to pay . . . .’

“These amendments permitted an employee to segregate his or her own 

damage claim from the employer’s claim for reimbursement for workers’ 

compensation benefits paid. ‘The employee thus is permitted to settle his [or 

her] own claim for a sum exclusive of amounts . . . already received in the 

form of a workers’ compensation award without jeopardizing the employer’s 

subrogation right.’ ” (O’Dell, supra, 10 Cal.App.4th at pp. 655–656.) 

The chapter of the Labor Code establishing these remedies defines the 

term “employer” to include its insurer. (Lab. Code, § 3850, subd. (b).) “The 

remedies available to the employer therefore are equally available to the 

insurer, and the insurer may sue in its own name without joining the 

employer as a party.” (Duncan v. Wal-Mart Stores, Inc. (2017) 

18 Cal.App.5th 460, 469.) Thus, we sometimes refer to Starstone as Moreci’s 

“employer.” 

With these principles in mind, we now turn to Starstone’s arguments.
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As discussed above, Starstone argues it had standing to move to 

disqualify Boxer Gerson under the exception in Colyer, supra, 50 F.Supp.2d 

966, which requires a showing that counsel’s manifest ethical breach infected 

the litigation and sufficiently impacted Starstone’s interest in a just 

determination of its claims. (See id. at pp. 968, 971–972.) The purported 

ethical breach here is Boxer Gerson “switching sides,” by representing Moreci 

in the lawsuit against Scaffold, and then, after settling the case, assuming

Scaffold’s defense, pursuant to the indemnification provision. According to 

Starstone, it is improper for “an attorney for an injured worker who has 

settled with a third party without the employer’s consent [to] switch sides to 

represent the defendant.” The premise of Starstone’s arguments is that the 

workers’ compensation statutes recognize the employer-employee 

relationship as one of “sanctity” and “do[] not allow . . . the employee to be 

directly adverse [to] the employer as to workplace injury claims. ” Starstone 

further argues the alleged ethical breach “threatens [Starstone’s] right to a 

full and fair determination of its claims” because it will “frustrate and/or 

impede/defeat [its] reimbursement request and/or achieve a double recovery”

for Moreci. In a related argument, Starstone contends Boxer Gerson has 

“obtain[ed] access to intimate, confidential case information through [its] 

prior and concurrent representation of employee Moreci” that will be used to 

Starstone’s disadvantage.

5 Starstone also maintains Moreci’s failure to give 

timely notice of his lawsuit affords it standing because it prejudiced 

Starstone by giving its adversaries an “opportunity to frame the issues and 

develop the evidence without [its] participation.” 

5 A contention that is in apparent conflict with Starstone’s concessions 

in its briefs and representation at oral argument.
16

We are not persuaded. To begin with, we disagree with the premise of

Starstone’s arguments—that the legal interests of an employee and employer

cannot be adverse to each other in litigation involving workers’ compensation 

and a third party. It is true an employee may not directly sue an employer 

for injuries sustained while in the course and scope of employment. (Lab. 

Code, §§ 3601, 3602, subd. (a).) It is also true an employer’s subrogation 

action is derivative of the employee’s action against a third party. (Board of 

Administration v. Glover (1983) 34 Cal.3d 906 (Glover).) However, it does not 

necessarily follow from these principles that the legal interests of the

employee and employer must be aligned, such that the employee is charged 

with a duty to safeguard the employer’s right to sue a third party. Thus, to 

the extent Starstone assumes Moreci and Starstone should be treated as 

having a mutuality of interests for purposes of determining whether an 

ethical conflict exists, such an assumption is flawed. 

Starstone relies on Glover, supra, 34 Cal.3d 906, for the proposition 

that the intertwined nature of the employee’s and the employer’s claims was 

recognized by the pre-1971 consent requirement, the purpose of which was to 

“ ‘protect the rights and interests of employee and employer and . . . prevent 

or discourage either of them from obtaining a recovery from the third party at 

the expense or the disadvantage of the other.’ ” (Glover, at p. 913, citing 

Brown v. Superior Court of San Bernardino County (1970) 3 Cal.3d 427, 433

(Brown).) Starstone also cites Carden v. Otto (1974) 37 Cal.App.3d 887 

(Carden), which stated an employee cannot, “in settling his claim, impair to 

any degree the ability of the employer to effectively litigate as against the 

third party.” (Id. at p. 896.) However, the quoted excerpts do not assist 

Starstone, since, as Starstone acknowledges, they were referring to pre-1971 

Labor Code sections 3859 and 3860, which prohibited settlement of claims 
17

against third party tortfeasors by employers or employees without the 

consent of the other. (See Glover, at pp. 913–914; Carden, supra, 37 

Cal.App.3d at p. 896.) Those provisions were amended in 1971 to “authorize[] 

an employee’s settlement of his own unreimbursed claim for damages without 

the employer’s approval and recognize[] the employer’s independent right to 

proceed against the alleged tortfeasor to recovery payments it had made to its 

employee.” (Glover, at p. 914.) 

Courts have refuted the notion that in the workers’ compensation 

context, an employee, relative to his or her employer, is akin to trustee, 

fiduciary, or legal representative or in privity—that is, “a person is so 

identified in interest with another that he represents the same legal right.” 

(Carden, supra, 37 Cal.App.3d at p. 892; see O’Dell, supra, 10 Cal.App.4th at 

pp. 658–660.) 

O’Dell is instructive. That case involved the analogous situation 

concerning an employer’s standing to set aside the dismissal of its employee’s 

personal injury action against a third party following the employee’s

settlement of that action. (O’Dell, supra, 10 Cal.App.4th at pp. 658–660.) 

O’Dell found that only a party to an action or his or her legal representative 

may seek to set aside a dismissal under Code of Civil Procedure section 473,

and the employer had been neither a party nor a legal representative.

(O’Dell, at pp. 658–660, citing Roski v. Superior Court (1971) 17 Cal.App.3d 

841, 846.) O’Dell explained that upon the employee’s voluntary dismissal of 

the lawsuit, it terminated, and the filing of a lien after the dismissal could 

not confer standing on the employer. (O’Dell, at p. 659.) In so holding, the 

court rejected the employer’s assertion that the employee and employer were 

“in privity” or that they had a relationship analogous to “a trust or fiduciary 

relationship” for purposes of standing. (Ibid.) 
18

The O’Dell court cited Carden, supra, 37 Cal.App.3d 887, in which an 

employer moved to set aside a judgment entered after the employee and a

third party had litigated the employer’s negligence in the employer’s absence. 

(O’Dell, supra, 10 Cal.App.4th at pp. 659–660, citing Carden, at pp. 890–891.) 

Carden refuted the view “ ‘that . . . the employee represents the employer in a 

manner analogous to a trustee bringing an action on behalf of the 

beneficiaries. This, of course, suggests the existence of a fiduciary 

relationship, one which . . . clearly does not exist.’ ” (O’Dell, at pp. 659–660, 

citing Carden, at p. 894.) Carden went on: “In litigating the issue of the 

employer’s contributory negligence the employee does not represent the same 

‘legal right’ as the employer. . . . ‘[T]he employee thus lacks such mutuality of 

interest in that issue as might be helpful to the employer.’ ” (Carden, at 

p. 892, citing Brown, supra, 3 Cal.3d at p. 433.) Thus, “Carden held the 

adjudication of the employer’s negligence was not res judicata as to the 

employer because it was neither a party nor in privity with a party. No 

privity appeared because, but for the exclusivity of the workers’ compensation 

remedy, the employer would have been a defendant.” (O’Dell, at p. 659, citing 

Carden, at p. 894, italics added.) 

Moreover, “[t]he introduction of a Witt[, supra, 57 Cal.2d 57] defense

changes the complexion of the case.” (Aetna Casualty & Surety Co. v. 

Superior Court (1993) 20 Cal.App.4th 1502, 1508.) “Until that time an 

employee’s interests do not clash with the employer’s interests in a third 

party action; each wants to be compensated for separate items of damage. 

However, once such a defense is claimed, a conflict of interest between 

plaintiff and the employer arises. [Citation.] Because of its alleged 

negligence, the amount due the employer becomes a subject of considerable 

dispute and the employer cannot expect the employee to argue on its behalf 
19

during any negotiations or at trial.” (Ibid., citing Brandon v. Santa Rita 

Technology, Inc. (1972) 25 Cal.App.3d 838, 846, italics added.) 

Based on the above authorities, we conclude that in touting “the 

sanctity of the employer-employee relationship,” Starstone overstates the 

nature of that relationship. The authorities refute the assertion that the 

legal interests of Moreci and Starstone must be aligned for all purposes. To 

the contrary, they indicate that where, as here, the employer’s negligence is 

asserted as a defense by a third party under Witt, supra, 57 Cal.2d 57, the 

interests of the employee and employer become adverse. We therefore

disagree with Starstone’s premise that Moreci and Starstone should be 

treated as essentially one unit for purposes of analyzing the existence of a 

conflict of interest. And since that premise is flawed, it cannot support 

Starstone’s conclusion that Boxer Gerson’s assumption of Scaffold’s defense 

created a “legal and ethical” conflict that “undermines the structural 

integrity of the workers’ compensation system.”

But even if such a conflict existed, Starstone has failed to show it was

“manifest and glaring” sufficient to qualify for the exception identified in 

Colyer. (Colyer, supra, 50 F.Supp.2d at p. 972.) Starstone repeatedly asserts 

throughout its briefs that Boxer Gerson’s continued participation will “most 

certainly ‘jeopardize’ ” Starstone’s right to reimbursement and result in a 

“double recovery” for Moreci. Starstone also cites to Duncan v. Wal-Mart 

Stores, Inc., supra, 18 Cal.App.5th 460, and Bailey v. Reliance Insurance Co. 

(2000) 79 Cal.App.4th 449, to argue counsel’s conduct was aimed to

“manipulate[] the employer’s right to reimbursement” or “ ‘colluded . . . to 

make a bad faith and/or fraudulent allocation of the settlement proceeds in 

order to defeat the employer’s third party credit rights.’ ” But Starstone fails 

to articulate with meaningful analysis how such conduct is at play or how the 
20

results complained about will ensue—much less support these conclusory 

assertions with citation to facts. (See Lister v. Bowen (2013) 215 Cal.App.4th 

319, 337.)

As Scaffold puts it, “to the extent we can discern an argument about 

double recovery, it appears Starstone is concerned that attorney Roth might 

assist Scaffold Solutions to prove that Hydra was contributorily negligent, 

thus reducing Starstone’s claim on Moreci’s settlement under Witt.” Even so,

without more information explaining how Boxer Gerson’s representation will 

result in a double recovery, one can only surmise that there might be 

duplication. But surmise obviously “is not sufficiently concrete and is highly 

speculative. Such a highly speculative and tactical interest does not meet the 

standing requirements.” (Great Lakes, supra, 186 Cal.App.4th at p. 1359.) 

Starstone also asserts it had standing to bring a disqualification motion

because Boxer Gerson may have learned confidential information from 

Moreci that it will use to Starstone’s disadvantage in the present case. To no 

avail. Starstone has adduced no evidence that any of its confidential or 

privileged information has been given to Boxer Gerson. Thus, any

informational advantage gained by opposing counsel is insufficient to support 

standing in the absence of a “ ‘legally recognizable expectation of 

confidentiality’ ” in any information between Moreci and Boxer Gerson, as 

discussed above. (DCH Health Services, supra, 95 Cal.App.4th at p. 832.) 

Starstone’s complaint about counsel’s possession of confidential 

information boils down to a concern that the information will give counsel an 

“unfair, improper advantage in litigation” over Starstone. But, as explained 

in Colyer, supra, 50 F.Supp.2d at p. 973, an “abstract interest in winning or 

losing this litigation is not legally cognizable. All plaintiffs have a stake in 

winning the cases they file but this tactical ‘interest’ ” cannot support a basis 
21

for standing. Furthermore, Starstone’s argument is a specious basis to 

support disqualification because even if Moreci gave Boxer Gerson 

confidential information that is potentially harmful to his employer, this 

would still be true if Boxer Gerson were replaced with new counsel.

Starstone next suggests that Moreci’s failure to give timely notice of his 

personal injury complaint supplies a separate basis for standing. The parties 

agree Moreci did not give Starstone notice of his complaint against 

defendants “forthwith” as required by Labor Code section 3853.

6 Boxer 

Gerson later notified Starstone of the lawsuit, as well as settlement 

negotiations, when it provided Starstone’s attorneys with the then upcoming 

mediation date. Starstone complains that the “late notice” in essence 

prevented it from intervening earlier in the action and placed it at a 

disadvantage because its adversaries were able to engage in discovery and 

develop the evidence in Starstone’s absence. While we agree with Starstone 

that Moreci failed to comply with Labor Code section 3853, Starstone’s 

argument conflates any injury or harm to Starstone with the “legally 

cognizable” injury that is required for standing. Moreover, to the extent 

Starstone’s challenge to the late notice is based on its informational 

disadvantage in the case, we explained above this is an “abstract interest in 

winning or losing this litigation [that] is not legally cognizable.” (Colyer, 

supra, 50 F.Supp.2d at p. 973.) 

Furthermore, the alleged conflict in this case is distinguishable from 

cases that have found standing under the exception based on a “manifest and 

6 Labor Code section 3853 provides in part: “If either the employee or 

the employer brings an action against such third person, he shall forthwith 

give to the other a copy of the complaint by personal service or certified mail. 

Proof of such service shall be filed in such action.”
22

glaring” or “open and obvious” ethical breach. (Colyer, supra, 50 F.Supp.2d at 

p. 969.) Colyer drew this exception from In re Yarn Processing, supra,

530 F.2d 83 (see Colyer, at pp. 969, 971–972), and In re Yarn Processing

contemplated the exception in the context of four specific cases: Emle

Industries, Inc. v. Patentex, Inc. (2d. Cir. 1973) 478 F.2d 562; Porter v. Huber

(W.D. Wash. 1946) 68 F.Supp. 132; Empire Linotype School, Inc. v. United 

States (S.D.N.Y. 1956) 143 F.Supp. 627; and Estates Theatres, Inc. v. 

Columbia Pictures Industries, Inc. (S.D.N.Y. 1972) 345 F.Supp. 93. (See In re 

Yarn Processing, supra, 530 F.2d at p. 89.) Each of these cases is 

distinguishable. 

Emle Industries, Inc. v. Patentex, Inc., supra, 478 F.2d 562, as described 

by In re Yarn Processing, involved a motion to disqualify an attorney made by 

a corporation that the former client of the attorney controlled. (In re Yarn 

Processing, supra, 530 F.2d at p. 89.) Because that motion was essentially 

made by the former client, Emle Industries, Inc. v. Patentex, Inc. is materially 

different from the present case. 

In Porter v. Huber, supra, 68 F.Supp. at pp. 132–135, the court, as 

opposed to a third party, challenged the attorney’s change of sides where the 

defendant’s attorney had previously been employed by the plaintiff in a legal 

capacity and was the superior of another attorney who had worked on a 

dispute that formed the basis of the case. 

In Empire Linotype School, Inc. v. United States, supra, 143 F.Supp. at 

pp. 631–632, before changing sides to represent the plaintiff, the attorney 

had prepared, and even signed on behalf of the defendant, some of the most 

crucial documents that were the heart of the lawsuit. 

Finally, in Estates Theatres Industries, Inc. v. Columbia Pictures, Inc., 

supra, 345 F.Supp. at p. 93, the plaintiff who was the current client of an 
23

attorney, named the former client as a co-conspirator with the defendant, 

even though the former client was not itself a defendant in the case. 

According to the In re Yarn Processing court, when the former client 

appeared by counsel to argue for disqualification, even though he was not the 

formal moving party, the “adverse nature” of the former client’s interests, 

relative to the new client’s, were so “open and obvious” that they “confronted 

the court with a plain duty to act.” (In re Yarn Processing, supra, 530 F.2d at 

p. 89.) 

Those cases, unlike here, involved a disqualification motion that was 

essentially made through the former client, even if not formally filed by that 

client. The conflicts that arose were based on a genuine “change of sides,” 

which involved the target attorney becoming directly adverse to a former 

client. 

For all of the reasons above, the exception to the general rule for 

manifest and glaring conflicts, whatever that exception’s breadth and 

content, does not encompass this case. Without any legally cognizable 

interest, we are left with an opposing party’s perception of a conflict arising 

from Boxer Gerson’s representation of Scaffold. But any harm to Scaffold or 

Moreci stemming from a breach of the duty of loyalty in any way by their

attorneys is, to echo the Great Lakes court, “of no concern” to Starstone.

(Great Lakes, supra, 186 Cal.App.4th at p. 1358.) Instead, as the trial court 

correctly found, the thrust of Starstone’s motion rests on a purported effort to 

safeguard the integrity of the judicial system and the “scrupulous 

administration of justice.” “None of these lofty values, however, implicates 

any personal right of [Starstone] which is burdened by the alleged conflict of 

interest.” (Colyer, supra, 50 F.Supp.2d at p. 973.) 
24

In sum, the trial court properly concluded Starstone had no standing to 

bring the disqualification motion. And lack of standing alone is sufficient for 

the trial court to deny that motion. (See Great Lakes, supra, 186 Cal.App.4th 

at p. 1359.) 

Superimposed on all of the above is that even if Boxer Gerson were 

disqualified, Moreci would be free to hire a new attorney to defend Scaffold 

pursuant to the settlement agreement and to continue pursuing interests 

that are inimical to Starstone’s—leaving Starstone in the same situation. 

Because disqualification would have no effect on the alleged harms, Starstone 

has sought the wrong legal remedy by bringing a disqualification motion.

DISPOSITION

The order denying the motion to disqualify counsel is affirmed. 

Scaffold is awarded costs on appeal. 
25

_________________________

Richman, Acting P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Moreci v. Scaffold Solutions, Inc (A161193)