Filed 4/2/13; pub. order 4/25/13 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

BEHNAM KHANI et al.,

 Plaintiffs and Appellants,

 v.

FORD MOTOR COMPANY et al.,

 Defendants and Respondents. 

 B239611

 (Los Angeles County

 Super. Ct. No. BC466626)

APPEAL from order of the Superior Court of Los Angeles County, 

Amy D. Hogue, Judge. Reversed. 

Strategic Legal Practices, Payam Shahian, Gielegheim & Associates and 

Neil Gielegheim, for Plaintiffs and Appellants. 

Baker & Hostetler, Mary L. Arens, Rosslyn Hummer, and Jack Samet for 

Defendants and Respondents. 

______________________________
2

Behnam Khani and his trial counsel, Payam Shahian and Strategic Legal Practices, 

appeal from an attorney disqualification order. We reverse. 

FACTUAL AND PROCEDURAL SUMMARY

On August 11, 2011, Khani, represented by Shahian and his law firm, Strategic 

Legal Practices, sued Ford Motor Company (Ford) and its dealer, Galpin Motors, Inc., 

under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq., popularly 

known as California‘s Lemon Law) for defects in a 2008 Lincoln Navigator. On 

September 16, 2011, Ford‘s counsel sent a letter to Shahian, requesting his withdrawal 

from the litigation on the ground that he previously had defended Ford in lemon law 

cases. On October 4, 2011, Shahian responded, refusing to withdraw. 

On December 31, 2011, Ford filed a motion to disqualify Shahian and his law 

firm. The motion was accompanied by the declaration of Brian Takahashi, a partner at 

the law firm Bowman and Brooke, which employed Shahian between June 2004 and July 

2007. Bowman and Brooke was Ford‘s corporate counsel, and during his tenure there 

Shahian worked on 150 cases, including California Lemon Law cases. According to 

Takahashi, Shahian was ―privy to confidential client communications and information 

relating to the defense of‖ such cases, as well as to ―pre-litigation strategies, tactics, and 

case handling procedures.‖ Shahian provided unspecified ―input‖ to Ford‘s Office of 

General Counsel and Consumer Affairs and communicated regularly with Ford about 

lemon law cases. 

The court granted the disqualification motion, ruling that the legal issues in lemon 

law cases are substantially similar, and presuming that Shahian‘s previous work exposed 

him to confidential information about Ford‘s handling of such cases. The court did not 

address Shahian‘s argument that Ford had waived its right to seek his disqualification. 

This timely appeal followed. 

DISCUSSION

―Generally, a trial court‘s decision on a disqualification motion is reviewed for 

abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the 

reviewing court should not substitute its judgment for the trial court‘s express or implied 
3

findings supported by substantial evidence. [Citations.] When substantial evidence 

supports the trial court‘s factual findings, the appellate court reviews the conclusions 

based on those findings for abuse of discretion. [Citation.] However, the trial court‘s 

discretion is limited by the applicable legal principles. [Citation.] Thus, where there are 

no material disputed factual issues, the appellate court reviews the trial court‘s 

determination as a question of law. [Citation.] In any event, a disqualification motion 

involves concerns that justify careful review of the trial court‘s exercise of discretion.‖ 

(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 

20 Cal.4th 1135, 1143–1144.) Since the principal issue in this case is whether the court 

applied the correct legal test, we review its determination independently. 

In the case of successive representation of clients with adverse interests, a 

disqualification motion juxtaposes the client‘s right to be represented by his or her 

counsel of choice with the attorney‘s duty to maintain the confidences of his or her 

former client. (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 

38 Cal.4th 839, 846 (Cobra Solutions).) In a case like this, ―the trial court must balance 

the current client‘s right to the counsel of its choosing against the former client‘s right to 

ensure that its confidential information will not be divulged or used by its former 

counsel.‖ (Ibid.)

In order to disqualify the attorney, the former client must show that the subjects of 

the successive representations are substantially related. (Cobra Solutions, supra, 

38 Cal.4th. at p. 847.) A substantial relationship exists where ―the attorney had a direct 

professional relationship with the former client in which the attorney personally provided 

legal advice and services on a legal issue that is closely related to the legal issue in the 

present representation. (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 

698, 710–711 [(Jessen)].) If the former representation involved such a direct relationship 

with the client, the former client need not prove that the attorney possesses actual 

confidential information. (Id. at p. 709.)‖ (Cobra Solutions, at p. 847.) The attorney is 

conclusively presumed to possess confidential information ―if the subject of the prior 

representation put the attorney in a position in which confidences material to the current 
4

representation would normally have been imparted to counsel.‖ (Ibid.; see also Flatt v. 

Superior Court (1994) 9 Cal.4th 275, 283; H. F. Ahmanson & Co. v. Salomon Brothers, 

Inc. (1991) 229 Cal.App.3d 1445, 1453.) 

The trial court in this case was under the impression that Cobra Solutions requires 

consideration of only the legal issues involved in successive representations, and it 

assumed that all lemon law cases raise similar legal issues. In Cobra Solutions, our 

Supreme Court reviewed the legal principles established in Jessen and other cases. 

(Cobra Solutions, supra, 38 Cal.4th. at p. 847.) The Jessen court made clear that where 

the attorney had a direct relationship with the former client, the substantial relationship 

test requires that ―the evidence before the trial court support[] a rational conclusion that 

information material to the evaluation, prosecution, settlement or accomplishment of the 

former representation given its factual and legal issues is also material to the evaluation, 

prosecution, settlement or accomplishment of the current representation given its factual 

and legal issues. [Citations.]‖ (Jessen, supra, 111 Cal.App.4th at p. 713.) 

In Farris v. Fireman’s Fund Ins. Co. (2004) 119 Cal.App.4th 671 (Farris), the 

court clarified that ―the Jessen evaluation of whether the two representations are 

substantially related centers precisely upon the factual and legal similarities of the two 

representations.‖ (Id. at p. 679, citing Jessen, supra, 111 Cal.App.4th at pp. 709–710.) 

The Farris court explained that Jessen did not adopt a ―playbook approach‖ to the 

substantial relationship test or create ―a lifetime prohibition against representation 

adverse to a former client.‖ (Farris, at p. 680.) The attorney‘s acquisition of general 

information about the former client‘s ― ̳overall structure and practices‘ would not of itself 

require disqualification unless it were found to be  ̳material‘—i.e., directly in issue or of 

critical importance—in the second representation. [Citation.] The same is true about 

information such as the first client‘s  ̳litigation philosophy‘ or  ̳key decision makers.‘‖ 

(Farris, at p. 680.) The substantial relationship test requires comparison not only of the 

legal issues involved in successive representations, but also of evidence bearing on the 

materiality of the information the attorney received during the earlier representation. 
5

The attorney in Farris had worked as a coverage counsel for an insurance

company for over 10 years. (Farris, supra, 119 Cal.App.4th at p. 677.) He had shaped 

the company‘s practices and procedures in handling California coverage claims. (Id. at 

p. 688.) Six months after the attorney had stopped working for it, the company denied an 

insured‘s request for a defense. (Id. at p. 686.) The court held the attorney was 

disqualified from representing the insured in the ensuing bad faith case, reasoning that the 

claims processing practices and procedures the attorney shaped would likely be at issue 

in the bad faith case, and senior claims personnel with whom the attorney closely worked 

would likely be called as witnesses. (Id. at pp. 685, 688.) 

The evidence in this case does not establish that any information to which Shahian 

was exposed during his representation of Ford would be material to his representation of 

Khani in this case. While Ford presented evidence that Shahian represented it in 

California Lemon Law cases, it did not establish that any confidential information about

the defense in those cases would be at issue in this case. Neither the allegedly defective 

2008 Lincoln Navigator nor its repair history by Galpin Motors was the subject of any 

lawsuit in which Shahian represented Ford. Takahashi‘s declaration does not show that 

Ford had any policies, practices, or procedures generally applicable to the evaluation, 

settlement or litigation of California Lemon Law cases at the time Shahian represented 

Ford, or that any such policies, practices, or procedures continued in existence unchanged 

between 2007 and 2011. Nor does it show that the same decision makers that were 

involved in cases Shahian handled for Ford are involved in this case. 

The trial court abused its discretion in concluding that the prior cases were 

substantially related to the current case just because they involved claims under the same 

statute. The substantial relationship test does not subject an attorney to automatic 

disqualification on this ground alone. (See Banning Ranch Conservancy v. Superior 

Court (2011) 193 Cal.App.4th 903, 918 [successive representations in cases under 
6

California Environmental Quality Act not substantially related].)1 The court also 

incorrectly assumed that Shahian‘s exposure to playbook information in prior lemon law 

cases was sufficient to disqualify him in this case without any showing of its materiality. 

(See Farris, supra, 119 Cal.App.4th at p. 680; see also Elliott v. McFarland Unified 

School Dist. (1985) 165 Cal.App.3d 562, 572 [conclusory statements insufficient].) 

Ford‘s bare-bones evidence in this case is insufficient to establish that Shahian‘s previous 

representation of Ford in California Lemon Law cases exposed him to confidential 

information that would be material to his current representation of Khani. 

Since we conclude that the court abused its discretion in disqualifying Shahian and 

his law firm, we do not decide whether Ford impliedly waived attorney disqualification 

by not filing its motion in a timely fashion. 

DISPOSITION

The order is reversed. Appellants are entitled to their costs on appeal.

EPSTEIN, P. J.

We concur:

WILLHITE, J. SUZUKAWA, J.

 

1

Similarly, in Hartford Cas. Ins. Co. v. American Dairy and Food Consulting 

Laboratories, Inc. (E.D.Cal., June 17, 2010, No. 1:09-CV-0914) 2010 WL 2510999, the 

federal district court rejected as overbroad the argument that, since all bad faith insurance 

cases share common elements, representing an insurance company in such cases 

precludes an attorney from ever representing another client in a bad faith case against the 

company. Unpublished federal district court decisions may be persuasive authority. 

(Aleman v. Airtouch Cellular (2012) 209 Cal.App.4th 556, 576, fn. 8.)
Filed 4/25/13

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

BEHNAM KHANI et al.,

 Plaintiffs and Appellants,

 v.

FORD MOTOR COMPANY et al.,

 Defendants and Respondents. 

 B239611

 (Los Angeles County

 Super. Ct. No. BC466626)

THE COURT:*

Good cause appearing, it is ordered that the opinion in the above entitled matter, 

filed April 2, 2013, be published in the official reports. 

________________________________________________________________________

*EPSTEIN, P. J. WILLHITE, J. SUZUKAWA, J.