Filed 7/24/15 Jogani v. Jogani CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

SHASHIKANT JOGANI,
Plaintiff and Respondent,

v.

HARES H JOGANI et al.
, Defendants and Appellants. B257750
(Los Angeles County Super. Ct. No. BC290553)

A PPEAL from order s of the Superior Court of Los Angeles, Rolf M. Treu, Judge.
R eversed in part with directions ; dismissed in part

. Keller Rackaukas, Jennifer L. Keller, Yen

- Shyang Tseng for Defendants and Appellants. Reed Smith, Margaret M. Grignon, Paula M. Mitchell for Plaintiff and Respondent.

_____________________2

This represents the fifth in a long series of appellant ex amination s of issues arising
from disputed real estate interests between plaintiff Shashikant Jogani and his four
brothers. 1 Jogani alleged that he and his brothers entered into an oral partnership agreement under which the brothers would provide capital to purchase real property that he would identify, acquire and manage, and that he would receive a 50 percent share of the properties’ equity after the brothers had recouped their investment plus a percentage.
When after seven years of successful operation s his brothers had fully recouped their investment and agreed return but r efused to pay him half the enterprise profits and denied that any partnership existed, Jogani sued his brothers and the ir real estate holding companies, alleging fraud, breach of con tract, and quantum meruit
, seeking approximately $250 million

. As the matter near ed trial (not for the first time), the defendants renewed their
earlier effort s to disqualify the participation on Jogani’s behalf of a transactional attorney
who had been involved in the property transactions of the alleged partnership during the approximately seven years from its inception until its collapse . The attorney had represented and negotiated with third parties on behalf of the plaintiff, his brother, and
the ho lding

- company entities ; he had acted as negotiator and real estate broker with respect to their real estate transactions ; and after the dispute arose with respect to the partnership’s existence, he continued to represent Jogani, including assisting Jogani and
his trial counsel with the ir prosecution of this lawsuit. The defendants sought order s disqualifying the attorney from continuing to represent Jogani, from assisting him and his trial attorney in t his lawsuit, and from appearing as a witness on his be half at trial

. The trial court denied the requested relief, instead a ccepting the attorney ’s offer to end his consultations with the plaintiff and his trial counsel about the lawsuit
, if the court
would make no findings a dverse to him

— apparently meaning, no findings that his

1 Because the litigation involves five brothers and other relatives who share the same surname, we refer to plaintiff and respondent Shashikant Jogani (often called “Shashi”) as “Jogani”; intending no disrespect , we identify other Jogani family members, when necessary, by their given names.3

disqualification was required by a conflict of interest or breach of his duties to each of the brothers, his client and his former client. Th is appeal challenges the court’s denial of the requested relief.

Background 2
A. The Complaint

.
Jogani allege s in his s econd a mended c omplaint , filed in November 2003, that in 1979 he began investing in residential apartment properties in and around Los Angeles County . During the following 10 years he acquired approximately 6,500 residential apart ment units, having a fair market value of about $375 million and a net equity of $100 million

. But h is fortunes reversed when the nationwide recession in real estate
values , exacerbated by other factors including the Northridge earthquake, caused him to
f ace defaults, foreclosures
, and lawsuits.
In 1995, Jogani and two of his four brothers, Haresh and Rajesh, acting both for themselves and as agents for the two other brothers
, Chetan and Sailesh, negotiated and entered into an oral general partnership a greement. Under their agreement, Jogani would
transfer his interest s in his troubled residential apartment properties for the partnership ’s
benefit
, he would identify and acquire new properties on behalf of the partnership, and he
would manage the partner ship ’ s portfolio. He also transferred a number of valuable life insurance policies, his residence, his interests in certain securities, and the use of his time and energies, his employees, and his offices for the partnership’s benefit. The brothers
would provide capital to acquire the properties from Jogani, and to fund the acquisition of additional properties for the partnership portfolio

. Jogani would be paid minimal

2 Our statement of the factual and procedural background for this appeal is taken largely from relevant portions of various pu blished and unpublished opinion s of this court in previous appe llate proceedings arising from the parties’ lawsuit. (See Jogani v. Jogani (2006) 141 Cal.App.4th 158 ( Jogani I ) ; Jogani v. Superior Court (200 8 ) 165 Cal.App.4th 901, 904 ( Jogani II

) ; Jogani v . Superior Court (July 28, 2010, B224398 [nonpub. opn

. ] ) ( Jogani III

) ; Jogani v. Jogani (Dec. 5, 2012, B222561 consol

. with B228875 [nonpub. opn

. ] ) ( Jogani IV

) .)4

compensation ; his brothers would have first call on all proceeds of the operation unti l
the ir principal investment was repaid , plus a 12 percent per year return. 3 At that point Jogani would become entitled to a “contingent promotional interest” consisting of half of all profits, proceeds, and value of the partnership portfolio. During t he next approximately six or seven years the enterprise thrived. By mid

2001 t he holding companies had acquired title to hundreds of apartment buildings
, owning about 15,900 apartment units with a value in excess of $1 billion and net equity of around $55 0 million. By about November 2001, the brothers had been repaid about $70 million, representing their entire principal investment, plus the agreed interest on
investment and about $4 million for taxes. Jogani claims that his contingent promotional
intere st in the partnership assets

— then allegedly worth more than $250 million

— “became fully earned, vested, and due.” According to Jogani’s pleading
, Haresh, a greed in late 2001 to a $4.8 million
distribution of partnership proceeds, one half to Jogani and the other half to Haresh and
the other brothers. Nevertheless, in about June 2002, Haresh ( acting for himself and the
other brothers ) removed Jogani from management of the partnership portfolio, recharacterized the earlier $2.4 million distribution to Jog ani as a loan, demanding its repayment , withdrew some $15 million in purported fees for himself and the other brothers, without accounting to Jogani , and refused to honor Jogani ’s vested interest in the partnership and its properties. In February 2003, J ogani filed this action against his brothers, the holding companies, and various other family members , and filed a s econd a mended c omplaint in
November 2003

. After an unsuccessful challenge to the pleadings, the defendants answered with a general denial. ( Jogani I , supra , 141 Cal.App.4th at p. 167 .) ( Only Haresh, P inkal (a nephew of Jogani) and t he holding companies appeared. ) Haresh and

3 According to the pleading, the partnership would use Jogani’s redemption rights for it ( or various holding companies, nominally owned by Haresh or other family members) to acquire his troubled properties at discounts, either at or in lieu of foreclosure, thereby restoring the previously troubled properties to a positive cash flow.5

certain of the holding company entities cross

- complained against Jogani , alleging mismanagement. ( Ibid. ) Jogani ’s p leading alleg e s c auses of action for breach of contract, breach of fiduciary duty, fraud, conspiracy to commit fraud (against Pinkal only), dissolution of partnership, quantum meruit, unjust enrichment, and constructive trust. He sought at least $250 mill ion in damages, dissolution of the partnership, an accounting, injunctive relief, institution of a constructive trust, and appointment of a receiver to manage the partn ership portfolio

. The individual defendants other than H a resh and Pinkal were dismissed from the action in July 2004 and February 2005
, and summary adjudication in Pinkal’s favor was affirmed in December 2012. ( Jogani IV , supra , B222561 .)
B. The 2004 Summary Judgment Motion , the Motion to Disqualify Attorney
Steven Glass, and the Jogani I A ppe al

. In June 2004, the defendants moved for summary judgment . The motion
contend ed that the oral partnership alleged by Jogani was illegal and unenforceable as a matter of law because it s intention was t o defraud creditors ; and that Jogani ’s lawsuit was b arred by judicial estoppel
, because he had repeatedly denied to prospective lenders and judgment creditors that he owned any interest at all in the holding company assets or in any companies owned directly or indirectly by Haresh. ( Jogani I , supra , 141 Ca l.App.4th

at p p

. 166

- 167

. ) On July 30, 2004, while the summary judgment motion was pending and a fter a June 2004 deposition of a ttorney Steven Glass, a transactional attorney who had assisted throughout Jogani’s efforts to build the real estate enterpris e , the defendants moved for Glass’s disquali fication

. 4 The disqualification motion s ought two rulings: that Glass is disqualified from acting as counsel for Jogani in this matter; and that Glass is disqualified from testifying on Jogani ’s behalf as a per cipient witness at trial

. The defendants

4 Glas s had appeared as Jogani’s attorney at Jogani’s first deposition, and had testified at his own deposition in 2004 that he had represented Jogani in connection with the lawsuit since it was filed. At his own deposition Glass also followed plaintiffs’

couns el’s instructions not to answer certain questions on attorney

- client

- privilege grounds.6

contended that Glass ’s representation of Jogani
, and his assistance to Jogani and his trial attorney in his suit against Haresh and the other defendants
, violate d the duties of loyalty and confidentiality he owed t o Haresh and to t he holding companies , who had also been
his clients

. In September 2004, t he trial granted the summary judgment motion, and den ied Jogani leave to further amend the complaint. The defendants dismissed the ir cross

complaint

. ( Jogani I , supra , 141 Cal.App.4th at p. 168.) The motion to disqualify Glass and a pending discovery motion were taken off calendar as moot. Jogani successfully appealed from the resulting judgment. ( Jogani I , supra , 1 41 Cal.App.4th at p. 189

. ) T his court held that Jogani’s lawsuit was not necessarily barred by t he doctrine of judicial estoppel , because judicial estoppel does not necessarily prevent a party from making inconsistent statements under oath ; it is established only when the party “‘ took a contrary p osition under oath in a prior proceeding and

. . . the prior position was accepted by the court

. ” ( Id. at p. 176 , original italics

. ) Because Jogani ’s
denials ( though deliberate ) were not shown to have been submitted to or accepted by a court in rendering a decision on a contested matter , the defendants had failed to show that Jogani ’s prior position “ was accepted by the court”

— a prerequisite to judicial estoppel.
C. The 2007 Summary Adjudication and the Jogani II Appeal

. The defendants again moved for summ ary judgment, on different grounds

. On December 3, 2007, the trial court granted summary adjudication in defendants ’ favor on all of Jogani ’ s claims except quantum meruit and unjust enrichment. ( Jogani II , supra , 165 Cal.App.4th at p. 904.) After the tr ial court struck Jogani’s request for jury trial, Jogani petitioned this court for a writ of mandate

. We granted the requested relief, holding that quantum meruit ( the only unresolved cause of action of the second amended complaint ) is a legal claim for w hich Jogani is entitled to a jury trial . ( Id. at pp. 903

- 904, 912.)
D. Trial on the Quantum Meruit Claim and the Jogani I V Reversal.
In the trial o f the quantum meruit claim
, the jury returned special verdicts in Jogani’s favor and against various of the de fendants, totaling $65,618,000

. T he trial7

court granted the losing defendants’ motion for new trial , finding the jury had committed misconduct by considering matters outside the evidence ; Jogani appealed from the new trial order , a nd from orders and instr uctions that had limited the trial’s scope and
excluded evidence ( including a summary adjudicat ion eliminat ing causes of action based

on Jogani’s al leged partnership ) . T he defendants also appealed , claiming error in the
denial of their post

- trial motion f or judgment notwithstanding the verdicts. ( Jogani III , supra , B224398 .) 5
This court reversed the judgment

. In the defendants’ favor we held that the trial
court was within its discretion in ordering a new trial on the ground that jury misconduct
had mat erially affected the defendants’ substantial rights . H owever , in Jogani’s favor we
held that the court had improperly limited the trial by summarily adjudicating Jogani’s
claims for breach of contract, breach of fiduciary duty, fraud, and dissolution of

p artnership

. ( Jogani IV

, supra , B222561 .)
E. The Second Motion to Disqualify Glass as Counsel For Jogani, and to
Preclude Attorney Glass’s Participation as a Witness at Trial

. On F ebruary 5 , 2014, the defendants’ attorney s received a written communication
f rom Jogani’s attorney of record stating that attorney Glass “has been advising Mr. Shashi Jogani on this matter,” 6 that Jogani’s attorne y intend s “ t o utilize his skill and knowledge in preparing for and trying th is case , ” and that “[t]herefore, he will als o have access to the documents which are the subject of the protective order
, ” the terms of which the parties were then negotiating. The letter asked if Glass could be exempted from the proposed protective order’s terms
, or “if you will require us to asso ciate Attorney Glass onto the case . . . .” According to the defendants’ trial counsel, although they knew that Glass had previously represented both Jogani and the defendants in “transactions and related

5 This court granted a peremptory writ of mandate ordering the trial court to enter a final appealable judgment. ( Jogani III , supra , B224398 .)

6 Respondent Jog ani’s common nickname is “Shashi.” (See fn. 1, ante .)8

matters” connected with this case, until receiv ing the February 5 communication they
were unaware that he continued to be assisting Jogani with his lawsuit . Defendants’ counsel immediately demanded of Glass that he “cease representing Shashi in this case and refrain from communicating with Shashi or h is attorneys about our clients or any aspect of this litigation.” A response from Jogani’s trial counsel suggested that “for the time being, our side does not designate Mr. Glass as trial counsel . . . .” On February 18, 2014, the defendants moved to di squalify Glass . The ir motion sought to disqualify Glass from acting as counsel for Jogani in this matter ; to prohibit Glass from communicating with Jogani and his trial counsel , directly or indirectly, about the case; and to prohibit Glass from testifying as a percipient witness at the trial. The motion was supported by evidence

— and Glass’s admission

— of his current assist ance to Jogani and his attorneys in preparing the case against the defendants for trial

. And it
included deposition excerpts and exhibi ts in which Glass had confirmed that he had represented both Jogani and some or all of the defendants in numerous transactions from
1995 until mid

- 2002

— transactions that Jogani’s lawsuit contends were done nominally on Haresh’s behalf, but were actually do ne for the benefit of the partnership that is at the center of the parties’ dispute

. 7
Glass admitted had that in late 2001 he became aware of a clear adversity and conflict of interest between Jogani and the defendants
, which he had initially attempted to mediate. When he learned of his clients’ conflict of interest with respect to the business he did not resign from his representation of both clients , but over a period of time he resigned from his representation of the defendants

. H e confirmed that he had shared information with Jogani’s trial counsel that he had gained in connection with his representation of the defendant corporations.

7 Glass had testified at his deposition that Haresh was the nominal owner of the defendant holding companies, and that both he and Haresh had repeatedly advised lenders, judgment creditors, and othe rs that Jogani owned no interest at all in the holding companies o r t he properties they held. Glass had testified that until late 2001 he saw no conflict of interest in his representation of both Jogani and the defendants, and he did not advise either Har esh or Jogani on that subject.9

T he defendants argued that Glass’ s representation of both Jogani and the
defendants during the years that Jogani had managed the enterprise
, without obtaining
waivers , breached his fiduciary duties of loyalty and confidentiality to his clients; that his continuing representation of and assistance to Jogani in t his law suit constitute s a continuing conflict of interes t ; and that he should not be permitted to testify at trial on Jogani’s behalf

. 8 ( Jogani and Glass had opposed the request for an order precluding Glass from testifying on Jogani’s behalf
, but only Glass filed opposition to the requests for Glass’s disqual ification from appearing as Jogani’s counsel and prohibiting him from communicating with Jogani or his counsel about the case. ) Glass’s opposition to his disqualification and preclusion from communicat ing with Jogani and his attorneys offered a compromis e: H e would agree not to advise or
communicate with Jogani o r his trial attorney in connection with the preparation o r trial

— but only on the condition that the court would make no factual or legal findings
adverse to him.
T he trial court den ied the di squalification motion a fter hearing brief argument . It explain ed that it “accept s Mr. Glass’ offer to refrain from acting as counsel or communicating with Plaintiff or Plaintiff’s counsel in connection with the litigation of
this action.” 9 The court also denied the defendants’ motion to preclude Glass from testifying on Jogani’s b ehalf (without prejudice to evidentiary objections that might be
raised during his testimony), citing the absence of authority for such a ruling

. 10

8 Based on their motion t he defendants obtained an ex parte temporary restraining order , barring Glass from communicating with Jogani or his counsel of record about any issue relating to the case

.

9 Glass was separatel y represented at the hearing.

10 The court also denied the defendants’ summary adjudication motion, which had contended that the alleged partnership agreement on which Jogani’s claims are based (except his quantum meruit claim) is illegal and therefor e unenforceable. This court summarily denied the defendant’s petition for writ of mandate to set aside the summary adjudication denial. ( Jogani v. Superior Court (Aug. 13, 2014, B257752) .)10

F. The Appeal and Motion to Dism iss the Appeal

. The defendants appealed from the court’s denial of the disqualification motion on July 2 4 , 2014. 11 Jogani moved to dismiss the appeal, arguing primarily that the defendants are not aggrieved by the challenged ruling , and that attorney Glas s’s compromise concession renders the motion moot

. On November 5, 2014 , th is court granted Jogani ’s motion in part, dismissing as nonappealable the portion of the appeal challenging the denial of th e motion to preclude Glass from testifying at trial.

D iscussion
A. Appealability
The trial court’s denial of the defendants’ motion for Glass’s disqualification , and for an order barring him from having direct or indirect communications with Jo g ani and his trial counsel about the case, is appealable either as a n order denying an injunction (Code Civ. Proc.
, § 904.1, subd. (a)(6) ) , or as a final order on a collateral matter unrelated to the merits of the underlying litigation. ( Meehan v. Hopps (1955) 45 Cal.2d 213; Truck Ins. Exchange v. Fireman’s Fund Ins. Co. (1992) 6 Cal.App.4th 1050, 1052, fn. 1.) The court’s denial of the defendants’ request for an order barring Glass from testifying at trial as a percipient witness is an interim evidentiary ruling, which can be
modified at any time un til entry of final jud gment. ( Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) It has none of the attributes of a final judgment, a final order on a collateral matter, or any other category of order that is made appealable by Code of Civil Procedure section 904.1. The appe al from it therefore must be dismissed ( Estate of
Bartholomae (1968) 261 Cal

. App

. 2d 839) , and nothing in this opinion is intended to intimate whether Glass can or should be precluded from testifying at trial as a percipient
witness on Jogani’s behalf.

11 The filing of the appeal is shown by court records. Appellan t’s appendix filed on Jogani’s behalf (mislabeled as “Exhibits In Support Of Opening Brief ” ) does not include the notice of appeal. (See Cal. Rules of Court, rules 8.122(b)(1) (A) & 8.124(b)(1)(A) [a ppellant’s a ppendix “must contain” copy of conformed noti ce of appeal ].)11

B. Stan ding and Mootness Respondent Jogani moved in this court to dismiss the appeal from the order denying Glass’s disqualification
, on t wo closely related grounds : that the defendants lack standing to appeal the trial court’s denial of the disqualification re quest , and that the appeal is moot. The contention is that the defendants lack standing because the trial court’s acceptance of Glass’s offer to dis continue his consultations with Jogani and his
trial counsel about the lawsuit provides the defendants with all the relief they would have gained from a disqualification order. And Jogani argues that the defendants’ appeal from
the denial of the disqualification motion is moot, because Glass’s disqualification is impossible as he is not now acting as Jogani’s trial counsel.
We have granted dismissal of the appeal from the order denying the motion to bar Glass from testifying at trial; but we denied the motion to dismiss the appeal from the trial court’s order denying the motion to disqualify Glass as Shashi’s attorney. We find that the defendants do not lack standing to appeal t he order denying their motion for Glass’s disqualification, and we find that the appeal is not moot.
1. The defendants have standing to appeal from the order denying disqualification of a t torney Glass

. The right to appeal in civil actions is wholly statutory. ( Woodman v. Ackerman (1967) 249 Cal.App.2d 644, 649.) To exercise that right an appellant must have standing to appeal, and must take an appeal from a statutorily declared appealabl e judgment or order. ( Ibid .) This rule is jurisdictional. ( United Investors Life Ins. Co. v. Waddell & Reed, Inc . (2005) 125 Cal.App.4th 1300, 1304.) Appellate standing is governed by Code of Civil Procedure section 902, which provides that only those persons who are parties aggrieved by the appealed order or judgment h ave a right to pursue an appeal from it . ( Eggert v. Pacific States Savings &
Loan Co. (1942) 20 Cal.2d 199, 200

- 201 [an appeal may be taken only by a “party aggrieved” by the appealed ju dgment or order]; In re D.M. (2012) 205 Cal.App.4th 283,
293

- 295; In re Pacific Std. Life Ins. Co. (1992) 9 Cal.App.4th 1197, 1200

- 1203.) A party is aggrieved only if its “rights or interests are injuriously affected by the judgment.”12

( County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737; Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.) Jogani argues that the defendants are not aggrieved by the trial court’s order : “ T he order on appeal is tantamount to a disqualification order because it effective ly grants Defendants the very relief they requested, to wit , it orders A ttorney Glass to refrain from acting as counsel or communicating with Plaintiff or Plaintiff’s counsel in connection
with this case.”
But t he defendants were not granted the relie f they requested . T heir disqualification motion was denied; there is no order preventing Glass from counseling and assisting Jogani in his prosecution of this action against the defendants; and in denying the disqualification motion, the court declined to consider , or rule, on the question whether Glass ’s former representation of both Jogani and the defendants with respect to the transactions involved in their suit constitute grounds requiring his disqualification from assisting Jogani in his suit against the defendants

. Attorney Glass filed a response to the defendants’ disqualification motion in the trial court. In his response, Glass expressly refused to concede any of the motion’s
factual assertions. H e instead proposed that “he will not (a) assist , or (b) communicate with [Jogani] or his counsel in connection with the preparation of or trial of this action”

— but only on the condition that there would be “no adverse factual or legal findings by the Court against Glass

. ” That is, Glass told the court that he would voluntarily agree to some p ortion of what the defendants sought, but that he would do so only if the court ma de no determination that the defendants are entitled to his disqualification

— only if the court would refrain from finding that Glass is or was guilty of the charged conflict of interest, or that he is or was disqualified from representing Jogani, by virtue of his (admitted) representation of the defendants with respect to the same events and transactions. In short, if

— but only if

— the court would refrain from finding that he had breached his professional and ethical duties to his clients, Glass would refrain from breaching those duties anymore. Or, as the appealing defendants put it, he told the court, “let bygones be bygones, trust me , I won’t do it again.”13

The trial court denied the disqualification motion, purporting to accept Glass’s “offer to refrain from acting as counsel [for] or communicating with” Jogani or his trial
counsel in connection with the lawsuit. 12 But the court did not condition its denial of the motion on Glass’s willingness to adhere to the terms of his offer, and nothing in the court’s order bars Glass from changing his mind. T he defendants are not aggrieved by the motion’s denial, Jogani contends
, because they “do not seriously argue that Attorney Glass would escape court sanction, were he to violate the court’s order.” But how could
he violate the court’s order, which denied any order binding Glass or Jo g ani ? The court made no order barring Glass from serving as Jogani’s attorney in this ( or any other ) case, or barring him from continuing to assist Jogan i and his trial attorney in their preparation and prosecution of the lawsuit against the defendants (who were admittedly his clients with respect to transactio ns involved in this lawsuit). An order embodying the terms of Glass’s informal assurances might have rendered those assurances enforceable, if they were later violated. (Code Civ. Proc.
, § 1209, subd. (a)(5) [contempt for violation of court order]; Koehl er v. Superior Court (2010) 181 Cal.App.4th 1153, 1159 [party’s disobedience of a judge’s order is common example of contempt].) But here , there is simply no order.
The defendants therefore are aggrieved, and do not lack standing to appeal from
the trial court’s ruling

. 2. The appeal is not moot. An appeal ordinarily will be dismissed as moot if intervening events have made it impossible for the court to render effective relief to the appellant. ( Eye Dog Foundation v. State Board of Guide Dogs for the Blin d (1967) 67 Cal.2d 536, 541; but see In re
William M . (1970) 3 Cal.3d 16, 23 [court retains discretion to review moot issue on the merits where the appeal poses recurring issue of broad public interest].) We have

12 Glass’s response in the trial court did not actually say anything about not “ acting as counsel ” for Jogani, but only that he would no longer assist or communicate with Jogani or his counsel about the lawsuit’s preparation or trial.14

previously denied Jogani’s motion to dismi ss the appeal from the order denying Glass’s disqualification, and we confirm that ruling here

. The defendants’ appeal is not moot

. Without an order disqualifying Glass from representing Jogani and barring his participation in the prosecution of the law suit against his former clients, nothing at all provides the court with the ability to enforce Glass’s assurances , and nothing provides the
defendants with any remed y in the event of a later change of mind by Glass

. Glass’s
conditional offer to discontinu e the challenged conduct does not justify t he trial court’s denial of the disqualification motion. “‘It is settled that the voluntary discontinuance of alleged illegal practices does not remove the pending charges of illegality from the sphere of judicial power or relieve the court of the duty of determining the validity of such charges where by the mere violation of a party the challenged practices may be resumed.’” ( Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 929.) This dispels t he assertion t hat the court’s acceptance of Glass’s offer to discontinue his consultations with Jogani and his counsel about the lawsuit have provided the defendants
with all they cou ld have gained from the requested disqualification order

.

C. Standard s o f Review
The t rial court ’ s decision on a disqualification motion is reviewed for abuse of
discretion. ( In re Charlisse C. (2008) 45 Cal.4th 145, 159.) “ When reviewing an order granting or denying a motion to disqualify, a reviewing court defers to the t rial court ’ s decision, absent an abuse of discretion. ” ( Truck Ins. Exchange v. Fireman’s Fund Ins.
Co. , supra , 6 Cal.App.4th at p. 1055.) “As to disputed factual issues, a reviewing court’s role is simply to determine whether substantial evidence support s the trial court ’ s findings of fact; ‘the reviewing court should not substitute its judgment for

. . . express or implied [factual] findings [that are] supported by substantial evidence. [Citations.]’ [Citation.] As to the trial court’s conclusions of law, however, review is de novo ; a disposition that rests on an error of law constitutes an abuse of discretion.” ( In re
Charlisse C. , supra , 45 Cal.4th at p. 159.) The court’s application of the law to the facts is reversible only if arbitrary and capri cious. ( Ibid. ; Fiduciary Trust Internat. of15

California v. Superior Court (2013 ) 218 Cal.App.4th 465, 481.) However, the court’s
d iscretion is also abused when it fail s to exercise discretion in a situation where the
exercise of its discretion is required

. ( Truck Ins. Exchange v. Fireman’s Fund Ins. Co.
, supra , 6 Cal.App.4th at p. 1055 ; Gardner v. Superior Court (1986) 182 Cal.App.3d 335,
338

- 339 .)

D. Glass’s Conditional Assurance That He Would End His Consultation s With Jogani’s Trial Counsel Did Not Render The Disqualification Motion Moot

. The trial court denied the request for Glass’s disqualification based on Glass’s representation to the court that he would discontinue his ongoing consultation with and
assistance to Jogani’s trial counsel with respect t o the issues in the lawsuit , if the court

were to make no factual or legal findings adverse to him. That is, Glass told the court that he would agree to two of the conditions sought by the motion, but only if the court would refrain from ruling that Glass ’s conduct constituted a conflict of interest
, that Glass is or was disqualified from representing Jogani , a nd that Glass is or was in breach of
duties owed to the parties . In short, Glass said he would not breach his duties anymore
, if
the court would no t determine that he ever had . Or, as the appealing defendants put it , he
asked the court to “let bygones be bygones, trust me, I won’t do it again”

— but only if

court made no order that he could not continue to represent Jogani.
In s ection E of t his opin ion , below, we conclude that the grounds stated in the defendants’ motion requir e Glass’s disqualification . T he trial court therefore abused its discretion by denying the motion for an order that Glass is disqualified from representing Jogani and from ass isting Jogani and his attorney in their prosecution of the lawsuit against the defendants.
The record reflects no basis on which the court could have determined that a disqualification order was not justified , or that its denial of such an order would b e adequate to protect the defendants’ right to prevent Glass from advising and assisting Jogani in his prosecution of the suit against them. Glass had long acted as counsel for Jogani with respect to the issues raised by the lawsuit, both during his repre sentation of16

the defendants and after his discharge by the m . Jogani’s trial attorney had affirmed that Glass had been assisting in the prosecution of the lawsuit against the defendants, and had
stated his intention that Glass would have access to document s covered by an anticipated protective order, and would continue to “utilize his skill and knowledge in preparing for and trying this case

. ”
A lthough the court apparently believed that Glass’s response to the motion
constituted a promise to discontinue his activities on Jogani’s behalf, Glass in fact had made no promise , and nothi ng in the record shows that Glass had actually ceased assisting Jogani in his lawsuit against his former clients

. Instead, Glass had represented
that only if the court were to make no ruling s implying findings adverse to him on the disqualification issue

— in other words, only if the court were to deny the motion

—he
would the reafter v oluntarily refrain from continuing to engage in the conduct justifying his disqualification

. Gl ass’s conditional offer to voluntarily end his assistance to Jogani did not remove the charges of conflict of interest and disqualification “‘ from the sphere of judicial power or relieve the court of the duty of determining the validity of such charges whe re by the mere violation of a party the challenged practices may be resumed. ’” ( Marin County Bd. of Realtors, Inc. v. Palsson
, supra , 16 Cal.3d at p. 929.) “ It is also well established that an appeal is not rendered moot where the parties raise substanti al questions of public interest that are likely to recur. ” ( United Farm Workers v. Dutra Farms (2000) 83 Cal.App.4th 1146, 1164.) Notwithstanding the court’s purported acceptance of Glass’s conditional offer of compromise, its denial of the disqualific ation motion actually rendered Glass’s offer
unenforceable. The motion’s denial left nothing at all preventing Glass from continuing to act as Jogani’s attorney and advisor with respect to matters involved in his lawsuit and Glass’s former representation of the defendants. If he were to do so, the defendants apparently would be back to square one; their only recourse would be to renew their disqualification request, on the same grounds

— grounds that s upport the requested relief
, as we determine below

. A b reach of Glass’s offer to refrain from further assistance to17

Jogani, w ithout a court order, would provide them with no basis for relief. (See In re
Wren (1957) 48 Cal.2d 159, 163

- 164 [without lawful order, court has no basis on which to find contempt]; In re Hagan (1964) 224 Cal

. App.2d 590, 594 [no contempt in absence of order].) The trial court’s denial of the disqualification motion is not rendered moot by its acceptance of Glass’s offer.

E. Rule s Governing Attorney Disqualification

Rule 3

- 310 of the Rul es of Professional Conduct 13 requires that attorneys avoid representing clients with conflicting interests (at least without the clients’ informed
written consent ). 14 Rule 3

- 310(C) deals with concurrent representation of clients with conflicting interests, provid ing that an attorney “ shall not

. . . : (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in
which th e interests of the clients actually conflict; or (3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose
interest in the first matter is adverse to the client in the first matter. ” Rule 3

- 31 0(E) deals
with conflicting representations that might be either concurrent or successive: “ A
member shall not

. . . accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment. ”
The distin ctions between concurrent and successive representations are frequently important , because the values at stake for each are not the same and t he disqualification
standards tha t a ppl y to each therefore are different. In cases of successive representation, “‘the chief fiduciary value jeopardized is that of client confidentiality ’”

— t he former

13 References to professional rules are to the Rules of Professional Conduct of the State Bar of California, unless otherwise specified.

14 Because no issue in this appeal involves written consent, we omit the quoted rules’ requirements for the clients’ written consent to conflicting representations. (See

r ule 3

- 310(A)(2).)18

client’s right to rely on the confidentiality of communications with his or her former

c ounsel . T he rule in such cases is that disqualification of the attorney is required , but only if there is “‘a “substantial relationship”’” between the former and the current representations, which gives rise to a presumption that confidential communicatio ns passed between them. ( In re Charlisse C.
, supra , 45 Cal.4th at p. 161, quoting Flatt v. Superior Court (1994) 9 Cal.4th 275, 283.)
But t he values at stake , and the standard s for attorney disqualification, are
different when there has been a concurr ent representation of clients with conflicting
interests . “ In simultaneous representation cases, ‘ [t]he primary value at stake . . . is the attorney ’ s duty

— and the client ’ s legitimate expectation

— of loyalty , rather than confidentiality. ’ ” ( In re Charliss e C. , supra , 45 Cal.4th at p. 16 0 , quoting Flatt v. Superior Court , supra , 9 Cal.4th at p. 28 4 .) T he ethical duty not to disclose client confidences and the attorney

- client evidentiary privilege both arise from the law’s need to

encourage clients to discl os e to their attorneys all pertinent information, and the concomitant need to protect that disclosure . But the duty not to represent conflicting
interests arises not just from the need for confidentiality of attorney

- client communications, but also from t he fiduciary nature of the attorney

- client relationship
itself . Clients repose confidence in the ir attorneys beyond mere ly engaging in
confidential communications ; t hey also rely on their attorney’s continuing loyalty to the ir

cause. T he rule against c oncurrent representation of conflicting interests therefore rests
on both of these factors

. B ecause conflict s threatening the duty of loyalty are so serious

— and because the rules protecting attorney

- client communications do not protect against violations of the duty of loyalty

— “ ‘ [w] ith few exceptions, disqualification [in a case of simultaneous representation] follows automatically, ’” without any showing that
the client’s confidential communications are at risk. ( In re Charlisse C.
, supra , 45 Cal.4th at p . 160 , quoting People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1147.) “The principle precluding representing an interest adverse to those of a current client is based not on any concern with the19

confidentia l relationship between attorney and client but rather on the need to assure the attorney ’ s undivided loyalty and commitment to the client.” ( Civil Service Com. v. Superior Court (1984) 163 Cal.App.3d 70, 78, fn. 1.) “‘[R]epresentation adverse to a

presen t client must be measured . . . against the duty of undivided loyalty which an attorney owes to each of his clients.’ [Citations

. ] If this duty of undivided loyalty is violated, ‘public confidence in the legal profession and the judicial process’ is
unde rmined.” ( Truck Ins. Exchange v. Fireman’s Fund Ins. Co.
, supra , 6 Cal.App.4th at

p p. 1056

- 1057.) In cases of concurrent representation, the moving party need not show a disclosure of confidential information; “in all but a few instances, the rule of
dis qualification in simultaneous representation cases is a per se or ‘automatic’ one.” ( In
re Flatt
, supra , 9 Cal.4th at p. 284.) 15

F. Glass Is Disqualified From Representing Jogani In His Case Against T he
Defendants. Here, the record shows both concurrent and successive conflicting representations by Glass. Concurrent representations typically occur when an attorney representing one client is also engaged to represent a second client, in the same or in another matter, whose
interest s are adverse to those of th e first client. But a conflicting concurrent representation also arises when an attorney represents clients who are acting jointly with respect to a single matter, but the clients ’ interests in the matter later diverge. In such a case, what began as a co ncurrent conflicting representation (when the clients’ interests initially diverged) becomes a successive representation of conflicting interests if the attorney then withdraws or is discharged from representation of one of the clients, but
continues to re present the other in an action against the first.

15 “In cases involving the representation of a client against a former client, ‘the initial question is “whether the former representation is ‘substantially related’ to the current re presentation.”’ ” “ If a substantial relationship exists, courts will presume that confidences were disclosed during the former representation which may have value in the current relationship. Thus, actual possession of confidential information need not be proven when seeking an order of disqualification.” ( Truck Ins. Exchange v. Fireman’s Fund Ins. Co.
, supra , 6 Cal. A pp.4th at p. 1056; Civil Service Com. v. Superior Court
, supra , 163 Cal.App.3d at pp. 79

- 80.)20

That’s what happened here. For about six years Glass represented both Jogani and the defendants with respect to their joint operation of the real estate investment enterprise
, during which period neither Glass nor the parties perceived any actual conflict
of interest

. Then, after the conflict between the parties became apparent
, Glass tried for
at least a brief period to continue acting on behalf of both Jogani and the defendants, and apparently even to m ediate their dispute d rights with respect to their interests in the real

estate enterprise

. During that period h e was concurrent ly represent ing clients with conflicting interests, prohibited by r ule 3

- 310(C) without regard to whether his representation th reatened client confidences

. ( In re Charlisse C.
, supra , 45 Cal.4th at p. 160.) And when he was discharged by the defendants, but continued to represent Jogani

— including assisting him and his trial counsel to prosecut e this lawsuit against his
former cli ents

—his disqualification was mandatory for that reason as well. ( Id . at p. 161 [disqualification required for successive representation of conflicting interests where there is substantial relationship between subjects of former and current representation s].)
E ven in cases involving only successive representations , d etermining whether disqualification is required involves more than just protecting the parties’ interests with respect to disclosure of protected confidential communications. ( Truck Ins. Ex change v. Fireman’s Fund Ins. Co

. , supra , 6 Cal.App.4th at p p . 1056

- 1057.) As our Supreme Court
has reiterated, the applicable rules arise not only in order to protect t he confidentiality of privileged communication s , but also to protect and preserve the essential public trust in the administration of justice and the integrity of the bar. ( In re Charlisse
, supra , 45 Cal.4th at p. 159; People ex. rel. Dept. of Corporations v. SpeeDee Oil Change Systems,
Inc. , supra , 20 Cal.4th at p. 1145.) “ ‘ 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 with21

a judicial proceeding before it, i n every matter pertaining thereto. ”’ ” ( In re Charlisse
, supra , 45 Cal.4th at p. 159.) 16
Glass has admit ted that he concurrently represented both Jogani and the
defendants in the operation of their real estate enterprise from at least April 1995, until
his representation of the defendants ended sometime after December 2001

— the time at
which he concedes that his clients’ conflict s of interest had become actual and apparent.
His representation of Jogani and the defendants therefore reflects elements of both

con current and successive conflicting representation s : He concurrently represented clients with conflicting interests

— and made some attempt to mediate their conflicts

— at least during the period from late 2001 until his actual discharge by the defendants ; and
when he was discharged by the defendants sometime after the parties’ conflict s of interest
had become apparent in late 2001, Glass continued his representation of and assist ance to Jogani in his prosecution of this law suit against the defendants

. Gl ass’s disqualification from representing either party against the other therefore is required , without regard to whether his conflicting representations are considered to be successive, or concurrent , for two reasons

. 17 First, his disqualification is requi red even if the conflicting representations are considered to be only successive, not concurrent
, because of the identity of the matters as to which he had represented both parties. ( In re
Charlisse C.
, supra , 45 Cal.4th at p. 161 [ d isqualification is req uired where there is a “substantial relationship” between the subjects of the former and current

16 “‘“ It has long been established in civil c ases that the court has the power

. . . to disqualify an opposing attorney from participating in a trial when, for example, the attorney improperly seeks to proceed against a former client. [Citation s.] ” [Citations.] Although there may be greater reason for disqualifying an attorney in a conflict of interest case, the court nevertheless has authority to disqualify in any instance when, as here, the court reasonably deems it necessary to “ . . . control in furtherance of justice, the conduct of its ministe rial officers . . . . ” (Code Civ. Proc., § 128; [citation]

. ) ’ ” ( Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 605.)

17 Glass’s representation of Jogani may be viewed either as concurrent with his representation of the defendants (as it was for a time), or successive to his representation of the defendants (as it became after his discharge by the defendants).22

representations].) 18 Second, t he fact that Glass’s concurrent representation of his clients with conflicting interests ended long ago ( and his conflicting repr esentation became
successive ), does not affect the mandatory disqualification requirement. “ [ A ] law firm that knowingly undertakes adverse concurrent representation may not avoid disqualification by withdrawing from the representation of the less favored client before hearing. ” ( Truck Ins. Exchange v. Fireman’s Fund Ins. Co.
, supra , 6 Cal. A pp.4th at p.
105 7; see Unified Sewerage Agency, etc. v. Jelco Inc. (9th Cir. 1981) 646 F.2d 1339,
1345 , fn. 4 [ d isqualification requirement “ continues even though the r epresentation ceases prior to filing of the motion to disqualify. If this were not the case, the challenged attorney could always convert a present client into a ‘ former client ’ by choosing when to cease to represent the disfavored client ” ]; Picker Intern ational , Inc. v. Varian Associates,
Inc . (N.D.Ohio 1987) 670 F.Supp. 1363, 1366, affd. 869 F.2d 578 (Fed.Cir. 1989) [ a ttorney owes client duty of undivided loyalty
, even though firm may cease representing client before disqualification motion ]; Harte Biltm ore Ltd. v. First Pennsylvania Bank,
N.A. (S.D.Fla. 1987) 655 F.Supp. 419, 422 [ d isqualification is required, because “Public confidence in lawyers and the legal system must necessarily be undermined when a lawyer suddenly abandons one client in favor of a nother”]; Margulies v. Upchurch (Utah 1985) 696 P.2d 1195, 1203 [right to disqualification is judged by standards applicable at the time of the concurrent representation, even after attorney no longer represents both clients]

. )
T he requirement of disquali fication in this case is not n egated by the possibility
that some or all of the communications during the parties’ years

- long joint representation

18 Jogani and Glass contended that Glass should not be disqualified because his representation of the parties involved only hi s confirmation of Haresh’s record ownership of the entity defendants (contrary to lenders’ and creditors’ claims that J ogani own ed some share). But their contention that this is unrelated to the current lawsuit is not consistent with Jogani’s contention t hat Glass ’s testimony on Jogani’s behalf will be

“ directly relevant to the claims in this action.” The lawsuit is about whether Jogani does or does not share in the assets about which Glass made ownership representations to others. The relevance of Glass ’s testimony in this action will be for the trial court to determine.23

by Glass might be unprotected under the joint

- client exception or other evidentiary rules applicable to the a ttorney

- client privilege (Evid. Code
, § 9 62 ). 19 The law’s concern with concurrent representations of clients with conflicting interests is not limited to disclosure
of client confidences. ( Fiduciary Trust v. Superior Court
, supra , 218 Cal.App.4th at pp.
4 82

- 486 & fn. 5 [

j oint representation and waiver of attorney

- client privilege do not excuse the court’s obligation to order disqualification].) “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’; ra ther, ‘[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 p ublic interests, we do not agree that matters of disqualification should be determined solely by reference to evidentiary rules.” ( Id. at pp. 485

- 486 ; Western Continental Operating Co. v. Natural Gas Corp. (1989) 212 Cal.App.3d 752, 762 [attorney

- client p rivilege is based only on duty not to disclose confidential communications; conflict

- of

- interest rules are based also on fiduciary duty of loyalty] .) The application of the attorney

- client privilege is not controlling with respect

to the issue of attorney disqualification . ( Fiduciary Trust v. Superior Court
, supra , 218 Cal.App.4th at p. 486, fn. 5 .) 20

19 Evidence Code section 962 provides: “ Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest of an y 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 (or his successor in interest) and another of such client s (or his successor in interest). ”

20 In Cho v. Superior Court (1995) 39 Cal.App.4th 113
, the court explained why confidentiality of communications is not the only important factor. There, a judicial settlement officer had retired and joined the firm th at represented the litigant’s opposition. No matter how careful the former settlement officer’s insulation from the litigation, the court explained, “ No one could have confidence in the integrity of a legal process in which this is permitted to occur with out the parties’ consent

. ” ( Id . at p. 125.) The same rule applies when the mediation is conducted by attorneys rather than judges. ( Castaneda v. Superior Court ( June 24, 2015, B259950).)24 Conclusion

Glass represented both Jogani and the defendants for many years in many transactions and appearances that may well have important and perhaps d ecisive implications for the disputes raised by their current lawsuit. His current appearance continuing assistance to Jogani and his counsel in their prosecution of the lawsuit against
his former clients , involving transactions with respect to which he r epresented both parties , can only appear unseemly at best, without regard to whether their
communications were confidential as between the parties , and without regard to whether they are or are not protected from disclosure in the trial of this case

. 21

B ecause the undisputed circumstances require Glass’s disqualification from advising Jogani as his attorney or assisting him with respect to the matters with respect to which he formerly represented the defendants, the trial court’s denial of the disqualific ation motion was an abuse of discretion. The defendants are entitled to an order that Glass is disqualified from representing and assisting Jogani in the prosecution
of his lawsuit against the defendants

.
Disposition The request for judicial notice is de nied. The appeal from the trial court’s denial of an order barring a ttorney Steven Glass from testifying as a witness at trial is dismissed. The order denying the motion for Glass’s disqualification to act as an attorney and advisor to Shashikant Jogani with respect to the lawsuit against the defendants is reversed. The trial court is directed to grant the disqualification motion in a manner consistent with this opinion and the record in this case.

21 Because our decision is not dependent on the extent to which t he parties’ communications may or may not be confidential or privilege , or whether any possible objections to Glass’s testimony may or may not have been waived, we deny Jogani’s January 23, 2015 request for judicial notice of documents purportedly relevant to that issue.25

The defendants are entitled to their costs on appeal.
NOT TO BE PUBLISHED.

CHANEY, A cting P. J.

We concur:

J OHNSON , J.

MOOR, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.