Filed 2/24/22 Preovolos v. Preovolos CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PETER PREOVOLOS,

Plaintiff and Respondent,

v.

ATHANASIOS K. PREOVOLOS et al.

Defendants and Appellants.

 D078796

 (Super. Ct. No. 

 37-2020-00040896-CU-PN-CTL)

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

Timothy B. Taylor, Judge. Motion to dismiss denied; order reversed.

Nemecek & Cole, Michael McCarthy, Mark Shaeffer and Vikram Sohal

for Defendants and Appellants. 

Caietti Law Group, Robert M. Caietti, Kristin Alysse Kameen and 

Gregory Edward Catangay; Horvitz & Levy, Jeremy Brooks Rosen and Eric 

Samuel Boorstin for Plaintiff and Respondent. 
2

Plaintiff and respondent Peter Preovolos,1 sued defendants and 

appellants Athanasios (Thanasi) Preovolos and his law firm Preovolos Lewin 

ALC (Preovolos Lewin), for malpractice and breach of fiduciary duty for 

Thanasi’s alleged conduct in, among other things, failing to disclose conflicts 

of interest and taking actions harming Peter while simultaneously 

representing him. Thereafter, Peter applied ex parte for a temporary 

restraining order, asserting in part that Thanasi in his capacity as corporate 

counsel to certain family businesses endeavored to oust Peter from board 

positions and withhold income from him. The trial court in the malpractice 

action issued an order that enjoins Thanasi and Preovolos Lewin from 

“providing legal assistance, legal counsel, legal representation, or legal advice 

to anyone adverse to [Peter] in and out of court.” 

Thanasi contends: (1) the order is unconstitutionally vague and 

overbroad; (2) the order significantly changed the status quo rather than 

preserved it; (3) the court lacked subject matter jurisdiction to grant the 

order; (4) the order adversely impacted the rights of individuals and entities 

over which the court had no personal jurisdiction; and (5) Peter did not 

satisfy the basic requirements for injunctive relief, in part because the order 

constitutes an invalid prior restraint. Peter has filed a motion to dismiss this 

appeal and the related appeal in Peter’s probate action. We deny the motion 

1 We refer to the parties by their first names for clarity, not out of 

disrespect. Thanasi separately appeals from an order disqualifying Preovolos 

Lewin from representing him in a probate action filed by Peter in September 

2020. We granted Peter’s unopposed motion to augment the record on appeal 

with documents that were before the trial court when it issued the temporary 

restraining order. Some of these documents were filed in support of and 

opposition to Peter’s request to disqualify Preovolos Lewin and include the 

verified probate court petition filed by Peter as well as the probate court’s 

disqualification order. 
3

to dismiss. The temporary restraining order here is an overly broad “obey the 

law”-type directive for ethical rules of conduct. It is also unreasonably vague. 

We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

We briefly summarize the circumstances leading up to the trial court’s 

issuance of the temporary restraining order from declarations and other 

documents submitted with Peter’s ex parte application.

For many years, Peter individually and jointly with his then-wife Litsa 

used the legal services of their attorney son Thanasi and his law firm, now

known as Preovolos Lewin. Thanasi assisted in estate planning, property

transactions, and preparing Peter’s personal income taxes. Thanasi is 

counsel for PenChecks, Inc. (PenChecks) a business Peter founded and of 

which Peter was chief executive officer, and Alpha & Omega Financial

Management Consultants, Inc. (Alpha & Omega), of which Peter was 

president. 

After marital disputes arose between Peter and Litsa, they retained 

Preovolos Lewin in 2014 to assist them in mediating the issues and possibly 

file a dissolution action. Thanasi drafted an irrevocable trust into which all 

of Peter and Litsa’s assets would be placed as well as a postmarital 

agreement that was intended to serve as an “economic sanction” on Peter. 

Thanasi was to serve as the “trust protector” of the irrevocable trust. In 

2019, Thanasi drafted a restatement of the family trust, also naming Thanasi 

as the “trust protector” and had Peter sign a durable power of attorney 

naming Thanasi and Thanasi’s brother Spiro as agents. 

In early 2020, Thanasi blocked Peter’s attempt to purchase property 

adjoining a storage facility that Peter had earlier purchased with separate 

property funds, telling the seller that Peter had no authority to enter into the 
4

discussions. Peter then learned he had lost his controlling interest in the 

property; the storage facility had been placed into another entity and half of 

his interest transferred to his three sons. When Peter began exploring a 

possible sale of PenChecks, Thanasi threatened that Peter would be removed 

from the company. The PenChecks board ultimately voted to force Peter’s 

retirement in June 2020 after Thanasi recommended that action be taken. 

In July 2020, Litsa filed for dissolution of her and Peter’s marriage. 

Several months later, Peter petitioned in the probate court to set aside the 

irrevocable trust and postmarital agreement, and sought damages for fraud, 

breach of fiduciary duty and financial elder abuse against Litsa, Thanasi and 

his other sons. 

In early November 2020, Thanasi and Preovolos Lewin as counsel for 

Alpha & Omega accused Peter of misappropriating funds, embezzlement,

conversion, and self-dealing, stating Peter had breached his fiduciary duties 

of loyalty and care by making a corporate check payable to himself and 

depositing it into a personal bank account. Thanasi demanded Peter return 

the funds and threatened to sue Peter on Alpha & Omega’s behalf if he did 

not do so. 

Days later, Peter filed this action against Thanasi and Preovolos Lewin 

for legal malpractice, breach of fiduciary duty and other relief. He alleged he 

brought the action to “redress the harm suffered by Peter following [Thanasi 

and Preovolos Lewin’s] systematic abuse of their position of trust as Peter’s 

attorney, which position . . . Thanasi used to systematically divert Peter’s 

assets into a trust which Thanasi controls (and is a primary beneficiary of), 

while simultaneously removing Peter’s authority to control his assets and 

companies . . . .” He alleged: “In the past 18 months, while still purportedly 

serving as Peter’s counsel, [Thanasi and Preovolos Lewin] worked with Litsa 
5

and . . . Thanasi’s brother Spiro to oust Peter from his role as CEO of the 

company he founded and ran for the last 40 years, and have now threatened 

to sue Peter, their purported client, on behalf of Litsa and the business which 

Peter jointly owns with Litsa.” 

Peter alleged reasonably careful counsel would have disclosed and 

advised him of the unwaivable conflict of interest in the joint representation 

of him and Litsa; advised whether he could or should have waived the 

conflict; ensured any such waiver was obtained with informed consent; 

advised him to seek advice from separate counsel; advised him of his 

community and separate property interests in the property transmuted to the 

irrevocable trust; and advised him of the impacts of the postmarital 

agreement, irrevocable trust, and a confidential statement of facts that 

allegedly formed the basis for those documents. He alleged reasonably

competent attorneys would have encouraged him to obtain independent 

counsel. Peter alleged further conflicts arose from Thanasi and Preovolos 

Lewin’s concurrent representation of Alpha & Omega, the positions they had

taken in Litsa’s favor, their accusations of misconduct, and their threats of 

litigation against him. He alleged competent counsel would have identified 

the conflicts and advised Alpha & Omega to obtain independent counsel. 

Peter alleged he suffered damages from the loss of his separate 

property and ownership rights; loss of control over his separate and 

community property as well as his estate plan; transmutation of his separate 

property to community property; loss of distributions, salary, and income 

from the businesses; and from incurring attorney fees in seeking to set aside 

the postmarital agreement and irrevocable trust. 

After Peter filed the malpractice action, the PenChecks board held its 

November 2020 meeting and considered Peter’s proposed retirement package, 
6

which Peter and his counsel had negotiated with a special board committee. 

Thanasi, who was present as corporate counsel, and Litsa and Spiro in their 

capacity as board members, declined to recuse themselves from the meeting. 

The board disapproved the negotiated package, but later gave Peter a new 

proposal in part requiring him to dismiss his actions and abandon other 

rights such as his right to income from businesses including Alpha & Omega. 

In January 2020, Peter moved in the probate court to disqualify 

Thanasi and Preovolos Lewin from representing Thanasi in that action. On 

February 10, 2021, the probate court issued its order disqualifying Preovolos 

Lewin from representing Thanasi in the probate matter.

On February 19, 2021, Peter attended another PenCheck’s board 

meeting. Thanasi was present as PenChecks’s general counsel, but denied

Preovolos Lewin had a conflict of interest preventing him from acting in that 

capacity. Thanasi asked the board to renew his law firm’s contract with 

PenChecks, and the board confirmed its appointment as general counsel. The 

board later followed Thanasi’s recommendations to remove Peter as 

PenChecks’s chairman of the board, deny Peter’s request for distribution of 

income to him based on PenChecks’s 2020 earnings, and remove Peter as a 

board member of PenChecks’s charitable foundation. Thereafter, Peter 

obtained agendas of upcoming board meetings for Alpha & Omega as well as 

other businesses of which Peter was a board member. Agenda items included 

removing Peter from the various boards, even though he remained a 50 

percent shareholder of PenChecks and a 42.5 percent owner of Alpha & 

Omega and had similar ownership interests in the other companies. 

In early March 2020, Peter applied ex parte for a temporary restraining 

order and order to show cause why a preliminary injunction should not issue. 

Peter asserted that Thanasi and Preovolos Lewin “are continuing 
7

representation of multiple parties to pending actions where defendants have 

a conflict of interest and in non-litigated business matters adverse to” Peter. 

According to Peter, he needed immediate intervention because even after the 

probate court disqualified Preovolos Lewin in the probate court proceeding, 

Thanasi and Preovolos Lewin continued to take directly harmful actions—

“outside the courtroom and beyond judicial scrutiny”—in the face of 

unwaivable conflicts of interest and in disregard of the California Rules of 

Professional Conduct. Peter argued the unethical breaches of fiduciary duty 

aided Thanasi’s personal financial interest in controlling Peter’s assets and 

estate, as Thanasi, a beneficiary to Peter’s estate, was enriched by preventing 

Peter from accessing or using any of his own assets.2 Peter argued Thanasi 

and Preovolos Lewin had repeatedly taken actions adverse to his interests,

pointing to the documents Thanasi drafted giving Thanasi control to remove 

Peter as beneficiary of the trusts holding his assets, block Peter from 

receiving trust disbursements, and prevent the sale of trust assets until 

Thanasi and his brothers inherit them. He argued Thanasi’s “unethical 

conduct” towards him had escalated, referring to Thanasi blocking the sale of 

PenChecks, diverting Peter’s income to an account controlled by Litsa, 

working with the PenChecks board to remove him as CEO, accusing him of 

misappropriating funds, and asking Peter to dismiss his litigation in 

exchange for a retirement package. Peter argued Thanasi willfully “violated 

the professional rules” (some capitalization omitted) by taking various actions 

2 Peter argued “[Thanasi and Preovolos Lewin’s] increasingly aggressive 

abuse of their professional obligations is interfering with Peter’s autonomy 

and stripping Peter of virtually all income, rendering him unable to pay his 

regular bills, placing him in imminent jeopardy of being unable to continue 

fighting for his rights, and denying him access to the wealth he has created 

before he is dead.” 
8

adverse to him in Thanasi’s role as PenChecks’s general counsel.3 Peter 

argued he would suffer permanent and irreparable harm without an 

injunction, and, citing Machado v. Superior Court (2007) 148 Cal.App.4th 875 

and Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft (1999) 69 

Cal.App.4th 223, asserted such relief was available and appropriate to 

prohibit an attorney from continuing a representation when the attorney has 

a conflict of interest. 

Peter argued he was likely to prevail on the merits given Thanasi and 

Preovolos Lewin taking “multiple positions adverse to [him]” including in 

respect to the concurrent joint representation of him and Litsa, as well as 

Thanasi’s status as a beneficiary and trust protector of the irrevocable trust. 

Peter asserted Thanasi and Preovolos Lewin did not advise him whether he 

could or should waive the conflicts, explain the repercussions of the 2014 

trust and postmarital agreement, give him informed written consent to the 

joint and concurrent representation, or withdraw when consent to the conflict 

was no longer possible. He argued Thanasi and Preovolos Lewin breached 

their fiduciary duties and engaged in conduct falling below the standard of 

care by these omissions and their failure to disclose actual conflicts to Peter 

and the various businesses. 

Following an unreported hearing on the matter, the trial court issued 

the order to show cause and a temporary restraining order. After the court 

3 In a supporting declaration, Peter pointed to Thanasi’s 

recommendations that the PenChecks board remove him from board positions 

and deny him income, and asserted from his experience and observation that 

“it is clear that Thanasi is influencing Litsa and the PenChecks Board to act 

in ways that are detrimental to me. I know Thanasi and Litsa frequently 

communicate and Litsa has historically done what Thanasi wants.” 
9

considered and largely rejected Thanasi’s ensuing request for “clarification,”4

it modified the temporary restraining order to state in part: “[P]ending the 

hearing on plaintiff’s application for an order to show cause for preliminary

injunction, [Thanasi] and Preovolos Lewin . . . are restrained and enjoined 

from providing legal assistance, legal counsel, legal representation, or legal 

advice to anyone adverse to [Peter] . . . in and out of court.” (Some 

capitalization omitted.) The court ordered the temporary restraining order to 

4 Thanasi’s request for “clarification” of the temporary restraining order’s 

scope asked the court to enter a new order providing that the temporary 

restraining order did not (1) control the probate court proceedings including 

the automatic stay of the probate court disqualification order following 

Thanasi’s appeal; (2) prohibit Thanasi from attending a March 19, 2021 

Alpha & Omega shareholder meeting or casting his shareholder vote; (3) 

prohibit Thanasi from performing his corporate counsel duties for Alpha & 

Omega and PenChecks “that are unrelated to [Peter]”; and (4) prohibit 

Thanasi from communicating with his mother and brothers. Thanasi 

asserted “the specific irreparable harm at issue herein will be suffered” before 

the upcoming April 1, 2021 hearing. Treating it as a motion for 

reconsideration, the trial court denied Thanasi’s request with the exception of 

modifying its order to add the word “legal” between the words “providing” and 

“assistance.” It otherwise ruled: “The court is not persuaded there is any 

irreparable harm to defendants between now and the April 1 hearing. The 

impact of the [temporary restraining order] on the Probate case (if any) is for 

the Probate Court to determine.” The court stated that “Alpha & Omega 

should have independent counsel at the March 19 shareholders meeting and 

the SEC inquiry. PenChecks should also have independent counsel for the 

tax audits. Defendants’ continuing representation of these parties, in which 

plaintiff has ownership interests, carries all the problems of divided loyalties 

identified in the moving papers filed last week.” The court made its 

modification and stated that in all other respects, the temporary restraining 

order “remains unchanged and in full force and effect.” The court did not 

amend the temporary restraining order to include its recommendation that 

the family businesses retain independent counsel for various meetings, 

inquiries and audits. 
10

expire on April 1, 2021, unless extended, but later stayed the order pending 

appeal. 

Thanasi filed this appeal. The parties do not dispute that the order is 

directly appealable. (Code Civ. Proc., § 904.1, subd. (a)(6) [appeal may be 

taken from “an order granting . . . an injunction”]; Courtesy Temporary 

Service, Inc. v. Camacho (1990) 222 Cal.App.3d 1278, 1286; Luitwieler v. 

Superior Court of Cal. in and for Los Angeles County (1921) 54 Cal.App. 528, 

530 [statute makes no distinction between temporary and permanent 

injunctions].)5

DISCUSSION

I. Motion to Dismiss Appeal

As Peter did in the accompanying appeal, he moves to dismiss this 

appeal on grounds it is frivolous or taken solely for delay. He claims

Thanasi’s four main points raised in opposition to Peter’s application are 

“completely without merit” and thus there is no reasonable argument the 

trial court abused its discretion in entering the temporary restraining order. 

We deny the motion to dismiss. In purporting to recount Thanasi’s 

assertedly frivolous arguments, Peter does not address Thanasi’s appellate 

contentions, and in particular Thanasi’s arguments that the temporary 

restraining order is unconstitutionally vague and overbroad or the court 

lacked subject matter jurisdiction to impose it. Peter’s assertion that 

Thanasi’s arguments in the trial court were frivolous or unreasonable does 

not make the necessary showing: that Thanasi’s appeal indisputably has no 

5 Following the filing of this appeal, the trial court ruled it lacked 

jurisdiction to proceed on Peter’s request for a preliminary injunction. 

Thereafter, Thanasi and Preovolos Lewin filed an amended notice of appeal 

including the court’s later orders on the request for clarification and its 

jurisdictional order.
11

merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) And even if 

that were not the case, we must examine Thanasi’s arguments to assess 

Peter’s motion. (See People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 

1315, 1318.) 

II. Legal Principles and Appellate Review of Injunctive Relief

We apply strict review in this matter for two reasons: the trial court’s 

injunction was mandatory, and it was entered on an ex parte basis. “An 

order disqualifying an attorney from continuing to represent a party . . . is a 

mandatory injunction because it requires affirmative acts that upset the 

status quo at the time the disqualification motion was filed.” (URS Corp. v. 

Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 886; see Machado 

v. Superior Court, supra, 148 Cal.App.4th at p. 882 [disqualification order is 

an injunctive order].) Mandatory injunctions are rarely granted, and are 

“ ‘ “subject to stricter review on appeal.” [Citation.] As our Supreme Court 

noted many years ago, “[t]he granting of a mandatory injunction pending the 

trial, and before the rights of the parties in the subject matter which the 

injunction is designed to affect have been definitely ascertained by the 

chancellor, is not permitted except in extreme cases where the right thereto is 

clearly established and it appears that irreparable injury will flow from its 

refusal.” ’ ” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 

446; Itv Gurney Holding v. Gurney (2017) 18 Cal.App.5th 22, 29.)

The underlying legal principles do not differ between mandatory and 

prohibitory injunctions. (Ryland Mews Homeowners Assn. v. Munoz (2015) 

234 Cal.App.4th 705, 712, fn. 4.) In determining whether to issue an

injunction, the trial court considers two interrelated factors: the likelihood 

that the plaintiff will prevail on the merits at trial, and whether the harm the 

plaintiff is likely to sustain if the injunction is denied outweighs the harm the 
12

defendant will suffer if the court grants the request. (Butt v. State of 

California (1992) 4 Cal.4th 668, 677-678; King v. Meese (1987) 43 Cal.3d 

1217, 1226; Midway Venture LLC v. County of San Diego (2021) 60 

Cal.App.5th 58, 76; Evans v. Evans (2008) 162 Cal.App.4th 1157, 1166.)

“[I]njunctive relief lies only to prevent threatened injury and has no 

application to wrongs that have been completed. [Citation.] It should neither 

serve as punishment for past acts, nor be exercised in the absence of any 

evidence establishing the reasonable probability the acts will be repeated in 

the future. . . . ‘[T]o authorize the issuance of an injunction, it must appear 

with reasonable certainty that the wrongful acts will be continued or 

repeated.’ ” (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332-333.) 

“ ‘The ultimate goal of any test to be used in deciding whether [an injunction] 

should issue is to minimize the harm which an erroneous interim decision 

may cause.’ ” (White v. Davis (2003) 30 Cal.4th 528, 554.) The court’s 

decision is not a final adjudication of the ultimate rights in controversy. 

(Midway Venture LLC, at p. 77.)

The abuse of discretion standard governs whether the lower court 

properly examined these factors. (Midway Venture LLC v. County of San 

Diego, supra, 60 Cal.App.5th at p. 76; Evans v. Evans, supra, 162 Cal.App.4th 

at p. 1166.) “To the extent the analysis depends on a determination of the 

constitutionality of the injunction, we independently review the question 

whether the trial court correctly interpreted and applied the applicable 

constitutional principles. [Citation.] Facts relevant to the constitutional 

analysis must be reviewed de novo, independent of the trial court’s findings.” 

(Evans, at p. 1166; see also Midway Venture, at p. 77.) Any other specific 

determination underlying the decision is subject to the review standard 

appropriate to that determination. (Midway Venture, at pp. 76-77.) These 
13

review standards apply equally to temporary injunctive relief. (See Biosense 

Webster, Inc. v. Superior Court (2006) 135 Cal.App.4th 827, 834.)

The “[e]ntry of any type of injunctive relief has been described as a 

delicate judicial power, to be exercised with great caution. [Citation.] This is 

doubly true when granting relief on an expedited basis using an ex parte 

request for a temporary restraining order rather than a properly noticed 

preliminary injunction.” (Newsom v. Superior Court of Sutter County (2020)

51 Cal.App.5th 1093, 1097.) “ ‘A court will not grant ex parte relief “in any 

but the plainest and most certain of cases.” ’ [Citation.] Substantively, ‘[a]n 

applicant must make an affirmative factual showing in a declaration 

containing competent testimony based on personal knowledge of irreparable 

harm, immediate danger, or any other statutory basis for granting relief ex 

parte.’ [Citations.] ‘A trial court should deny an ex parte application absent 

the requisite showing.’ ” (Ibid.)

III. Peter’s Claim of Forfeiture

We begin with Peter’s claim that Thanasi forfeited his “ability to 

challenge the [temporary restraining order]” by providing an inadequate 

record and also by failing to cite many of the relevant facts supporting the 

court’s order. Peter’s contention goes too far: a party will forfeit sufficiency of 

the evidence challenges by failing to provide a fair summary of all the 

material evidence on a point. (Foreman & Clark Corp. v. Fallon (1971) 3 

Cal.3d 875, 881; see Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 

728, 737-738.) As to the relevant background facts Peter claims Thanasi 

omitted, it is not clear to us that they are disputed. And while Peter asserts 

Thanasi omitted Peter’s exhibits supporting his ex parte application (which 

Peter has now submitted via augmentation), Peter does not further explain 

how the absence of the documents prevents us from considering Thanasi’s 
14

appellate contentions. We decline to resolve the matter on forfeiture grounds, 

particularly where Thanasi’s main claims raise questions of law turning on 

the scope of the temporary restraining order’s language. (People v. Williams 

(1998) 17 Cal.4th 148, 161, fn. 6 [forfeiture doctrine is not absolute]; accord, 

In re M.F. (2022) 74 Cal.App.5th 86, 99, fn. 3 [declining to exercise forfeiture 

in light of lack of disputed facts and novel legal issues presented]; 

Conservatorship of C.O. (2021) 71 Cal.App.5th 894, 903.) 

IV. Claimed Absence of Subject Matter Jurisdiction

Thanasi contends the trial court lacked subject matter jurisdiction to 

grant the temporary restraining order. Success on such a claim would mean 

the court was entirely without authority or power to act. (See Kabran v. 

Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339.) Thanasi maintains case 

law—Sheller v. Superior Court (2008) 158 Cal.App.4th 1697 and In re 

Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, as well as some outof-state authority—establishes that a court’s inherent power to disqualify an 

attorney “does not bestow upon a trial court the authority to control attorney 

conduct in matters not before that court” and does not extend to attorney 

disciplinary actions, which are the province of the Supreme Court and the 

State Bar. 

Thanasi’s contention is in fact a claim that the court acted in excess of 

jurisdiction, meaning the court had jurisdiction over the subject matter and 

the parties to the malpractice action (Peter, Thanasi, and Preovolos Lewin) in 

the fundamental sense, but was not authorized by law to act as it did or 

failed to conduct itself in a manner prescribed by law. (See Kabran v. Sharp 

Memorial Hospital, supra, 2 Cal.5th at p. 339.) The California Supreme 

Court in Kabran explained: “A lack of fundamental jurisdiction is ‘ “ ‘an 

entire absence of power to hear or determine the case, an absence of 
15

authority over the subject matter or the parties. [Citation.] . . . ’ [¶] . . . 

[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or 

consent. Rather, an act beyond a court’s jurisdiction in the fundamental 

sense is null and void” ab initio. [Citation.] “Therefore, a claim based on a 

lack of . . . fundamental jurisdiction[ ] may be raised for the first time on 

appeal.” ’ ” (Ibid.) 

“ ‘Even when a court has fundamental jurisdiction, however, the 

Constitution, a statute, or relevant case law may constrain the court to act 

only in a particular manner, or subject to certain limitations.’ [Citation.] We 

have described courts that violate procedural requirements, order relief that 

is unauthorized by statute or common law, or otherwise ‘fail to conduct 

[themselves] in the manner prescribed’ by law as acting ‘in excess of 

jurisdiction.’ [Citation.] Because a court that acts in excess of jurisdiction

still has ‘jurisdiction over the subject matter and the parties in the 

fundamental sense’ [citation], any such act is ‘valid until set aside, and 

parties may be precluded from setting it aside by such things as waiver, 

estoppel, or the passage of time’ [citation].” (Kabran v. Sharp Memorial 

Hospital, supra, 2 Cal.5th at pp. 339-340.) Issues relating to jurisdiction in 

its less fundamental sense may be subject to forfeiture for failing to timely 

raise it below. (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6; see People 

v. Delgado (2017) 2 Cal.5th 544, 558.) 

In this case, Thanasi was compelled to respond to Peter’s ex parte 

request on short notice, and his argument concerning the scope of the trial 
16

court’s inherent power to disqualify counsel was not made below.6 Whether 

the temporary restraining order exceeded the trial court’s inherent power 

under Code of Civil Procedure section 128 “to control the conduct of persons 

‘in any manner connected with a judicial proceeding before it’ ” (In re 

Complex Asbestos Litigation, supra, 232 Cal.App.3d at p. 600) requires 

examination of the underlying “circumstances of each case.” (Ibid.) Such 

focus on the underlying facts would normally prevent our consideration of the 

question for the first time. But this and other contentions by Thanasi turn on 

the overbroad and vague nature of the temporary restraining order’s 

language, as well as whether it improperly extends beyond the malpractice

litigation, presenting questions of law on which we exercise de novo review. 

(Midway Venture LLC v. County of San Diego, supra, 60 Cal.App.5th at p. 76;

Evans v. Evans, supra, 162 Cal.App.4th at p. 1166; see In re P.O. (2016) 246 

Cal.App.4th 288, 299.) We have discretion to consider such questions on 

undisputed facts for the first time on appeal (Meridian Financial Services, 

Inc. v. Phan (2021) 67 Cal.App.5th 657, 699), and do so here.

V. Temporary Restraining Order Is an Overbroad “Obey the Law” Mandate 

Untethered to the Malpractice Action

An injunctive order “should be limited in scope to the subject of the 

litigation.” (City of Redlands v. County of San Bernardino (2002) 96 

Cal.App.4th 398, 415.) “In fashioning a remedy, a court should ‘strive for the 

least disruptive remedy adequate to its legitimate task’ and tailor it to the 

6 In opposition to Peter’s ex parte application, Thanasi argued (1) there 

were no grounds for Peter to seek a temporary restraining order on an ex 

parte basis; (2) Peter’s request for injunctive relief sought to change the 

status quo, not preserve it; (3) Peter had not clearly established any right to a 

mandatory injunction; (4) the requested relief was an improper prior 

restraint; and (5) Peter did not satisfy the basic requirements for injunctive 

relief. 
17

harm at issue. [Citation.] And an injunction against legitimate business 

activities ‘should go no further than is absolutely necessary to protect the 

lawful rights of the parties seeking such injunction.’ ” (People v. Uber

Technologies, Inc. (2020) 56 Cal.App.5th 266, 313.) When an injunction 

restrains “the commission of unlawful acts ‘disassociated from those which a 

defendant has committed’ ” (id. at p. 316), it cannot stand. (See ibid.) 

The temporary restraining order broadly states: “[P]ending the hearing 

on [Peter’s] Application for an Order to Show Cause for Preliminary 

Injunction, [Thanasi] and Preovolos Lewin . . . are restrained and enjoined 

from providing legal assistance, legal counsel, legal representation, or legal 

advice to anyone adverse to Peter . . . in and out of court.” The order is 

without context. It does not define or describe what it means to be “adverse 

to” Peter. It extends beyond the persons and business entities mentioned in 

Peter’s malpractice complaint, on whose behalf Thanasi and Preovolos Lewin 

were alleged to have acted to Peter’s detriment. It extends to persons or 

entities who may not even be clients of Thanasi or Preovolos Lewin. It is not 

limited even to court proceedings, but extends “out[side] of court” to nonlegal 

business or even non-business matters. 

The injunction prohibiting Thanasi and Preovolos Lewin from taking 

on work for unspecified persons or entities with “adverse” interests is so 

broad and unspecific as to constitute an impermissible “obey the law”-type 

directive. In effect, it directs Thanasi and Preovolos Lewin to not violate

ethical rules of conduct relating to conflicts of interest and implicating duties 
18

of confidentiality and undivided loyalty.7 “[A] court may not issue a broad 

injunction to simply obey the law, thereby subjecting a person to contempt 

proceedings for committing at any time in the future some new violation 

unrelated to the original allegations,” though it may “restrain the person 

from committing similar or related unlawful activity.” (City of Redlands v. 

County of San Bernardino, supra, 96 Cal.App.4th at p. 416; Connerly v.

Schwarzenegger (2007) 146 Cal.App.4th 739, 752 [plaintiff “was not entitled 

to an injunction compelling defendants to follow the law”]; see Cook v. Craig

(1976) 55 Cal.App.3d 773, 785-786 [petitioner’s prayer to have the court 

command law enforcement agency to “comply with the requirements of the 

Administrative Procedure Act [APA] in adopting, repealing, or amending the 

rules and regulations of the [agency] in all future actions which may be 

taken” was an overly broad order to “obey all laws”; the court had no way of 

identifying what regulations, if any, should have been promulgated pursuant 

to the act and its only recourse would be to order the agency to “literally 

comply with the APA”].)

The temporary restraining order also preemptively disqualifies Thanasi 

and Preovolos Lewin from accepting clients or performing legal work for 

others who are “adverse to” Peter in entirely unrelated legal or business 

matters. Disqualification is a “drastic” remedy. (Big Lot Stores, Inc. v. 

7 See California Rules of Professional Conduct, rules 1.7, 1.9, eff. Nov. 1, 

2018, former rule 3-310(C), (E). Rule 1.7 provides in part: “(a) A lawyer shall 

not, without informed written consent from each client and compliance with 

paragraph (d), represent a client if the representation is directly adverse to 

another client in the same or a separate matter.” Rule 1.9, subdivision (a) 

provides: “A lawyer who has formerly represented a client in a matter shall 

not thereafter represent another person in the same or a substantially 

related matter in which that person’s interests are materially adverse to the 

interests of the former client unless the former client gives informed written 

consent.”
19

Superior Court of San Diego County (2020) 57 Cal.App.5th 773, 782.) The 

trial court’s authority to disqualify counsel “ ‘derives from the power inherent 

in every court “[t]o control in furtherance of justice, the conduct of its 

ministerial officers, and of all other persons in any manner connected with a 

judicial proceeding before it, in every matter pertaining thereto.” ’ ” (Walker 

v. Apple, Inc. (2016) 4 Cal.App.5th 1098, 1106, quoting People ex rel. Dept. of 

Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 

1145 (SpeeDee Oil); Code Civ. Proc., § 128, subd. (a)(5).) But “a court is 

limited to exercising this inherent authority only when the misconduct ‘will 

have a continuing effect on the judicial proceedings.’ [Citations.] If a court’s 

purpose is merely ‘to punish a transgression which has no substantial 

continuing effect on the judicial proceedings . . . , neither the court’s inherent 

power to control its proceedings nor Code of Civil Procedure section 128 can 

be stretched to support the disqualification.’ [Citation.] Simply stated, ‘ “the 

purpose of a disqualification must be prophylactic, not punitive.” ’ ” (In re 

Marriage of Murchison (2016) 245 Cal.App.4th 847, 852-853; see also

City of San Diego v. Superior Court (2018) 30 Cal.App.5th 457, 471

[“ ‘Disqualification is inappropriate . . . simply to punish a dereliction that 

will likely have no substantial continuing effect on future judicial 

proceedings’ ”]; Sheller v. Superior Court, supra, 158 Cal.App.4th at p. 1711; 

Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 219 

[disqualification “should not be taken simply out of hypersensitivity to ethical 

nuances or the appearance of impropriety”].) Given this preventative 

purpose, “ ‘[t]he significant question is whether there exists a genuine 

likelihood that the status or misconduct of the attorney in question will affect 

the outcome of the proceedings before the court.’ ” (McDermott Will & Emery 
20

LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1120; Oaks Management 

Corporation v. Superior Court (2006) 145 Cal.App.4th 453, 467.)

Peter cannot make this showing. As stated, the temporary restraining 

order is untethered to the persons and entities involved in the malpractice 

action. Though the order effectively disqualifies Thanasi/Preovolos Lewin 

from acting as corporate counsel for PenChecks and Alpha & Omega in view 

of recommendations for board votes against Peter’s interests (now completed 

acts claimed to be breaches of professional or fiduciary duties), it is apparent 

the trial court was also concerned about future, entirely unrelated ethical 

transgressions on the part of Thanasi and Preovolos Lewin. That is 

understandable as Peter’s argument to the court was that Thanasi and 

Preovolos Lewin had “repeatedly ignored the Rules of Professional Conduct 

and taken multiple positions adverse to Peter” and their actions “ma[d]e clear 

they have no regard for legal ethics.” But a “ ‘violation of a rule of the State 

Bar Rules of Professional Conduct does not necessarily compel 

disqualification.’ ” (In re Marriage of Murchison, supra, 245 Cal.App.4th at p.

853.) And it was not the court’s role to police their ethical misconduct. 

In addressing Thanasi’s overbreadth challenge, Peter focuses on 

Thanasi’s and Preovolos Lewin’s free speech rights, asserting those rights are 

not at issue because the order “targets their conduct, i.e., their undertaking 

to provide legal services to parties adverse to Peter in violation of their 

ethical duties” and only “incidentally” affects speech. Peter argues that even 

if the order targets free speech rights, Thanasi and Preovolos Lewin’s 

concurrent representation of him “and parties adverse to [him]” warrants 

disqualification even if the representations have nothing in common. He 

argues the broad injunction was justified for Thanasi’s and Preovolos Lewin’s

“extensive history of flouting their ethical responsibilities . . . .”
21

Thanasi’s overbreadth arguments are not limited to the injunction’s 

targeting of free speech rights. And Peter’s assertion that concurrent 

representations warranted disqualification do not acknowledge that the 

court’s order goes well beyond Thanasi and Preovolos Lewin’s asserted joint 

representation of Peter on the one hand, and Litsa or the family businesses 

on the other. That Thanasi and Preovolos Lewin may be repeatedly “flouting 

their ethical duties” does not warrant such a broad and unspecific injunction 

directing them to simply comply with those duties, as we have discussed 

above.

Absent context or specificity about the unrelated current or future 

representations, there is no way to establish a conflict of interest that would 

justify disqualification.8 Peter cannot demonstrate that preventing Thanasi 

8 Whether a disqualifying conflict of interest exists between clients must 

be determined in context of the assertedly conflicting matters. When a 

former client seeks to have a previous attorney disqualified as to a successive, 

potentially adverse client, the governing test requires that the client 

demonstrate a substantial relationship between the subjects of the 

antecedent and current representations. (Flatt v. Superior Court (1994) 9 

Cal.4th 275, 283; Capra v. Capra (2020) 58 Cal.App.5th 1072, 1097.) “To 

establish a prohibited successive relationship, plaintiffs must do more than 

show merely that [the attorney] previously represented them . . . on any type 

of matter. ‘[I]t is not the services performed by the attorney that determines 

whether disqualification is required, it is “the similarities between the legal 

problem involved in the former representation and the legal problem involved 

in the current representation.” ’ ” (Capra, at pp. 1097-1098.) The California 

Supreme Court has also stated: “An attorney who seeks to simultaneously 

represent clients with directly adverse interests in the same litigation will be 

automatically disqualified.” (City and County of San Francisco v. Cobra 

Solutions, Inc. (2006) 38 Cal.4th 839, 846, citing Flatt, at p. 284, fn. 3.) The 

temporary restraining order here is not limited to the litigation context, and 

absent specificity as to the parties Thanasi and Preovolos Lewin purport to be 

representing, one cannot confirm there is even simultaneous or concurrent 

representation. 
22

and Preovolos Lewin from representing unidentified adverse parties or 

entities adverse to him will negatively impact the outcome of the malpractice 

action or have a “substantial continuing effect” on future proceedings in that 

case. The order went beyond the court’s inherent authority to control the 

conduct of officers in judicial proceedings before it. 

We observe that “[a] court is not powerless to act . . . in the face of . . .

possible ethical violations . . . .” (In re Marriage of Murchison, supra, 245 

Cal.App.4th at p. 853.) “ ‘There are other sanctions which in that situation 

must suffice, including imposition of attorneys[’] fees and costs incurred by 

the other side as a result of the misconduct (Code Civ. Proc., § 128) and 

reporting of the misconduct to the State Bar of California so that it may 

determine whether disciplinary action is appropriate . . . .’ ” (City of San 

Diego v. Superior Court, supra, 30 Cal.App.5th at pp. 471-472.) 

VI. The Injunction Is Unreasonably Vague

As an independent basis for the result we reach, we conclude the 

injunction here is also unreasonably vague. “ ‘An injunction must be 

narrowly drawn to give the party enjoined reasonable notice of what conduct 

is prohibited.’ [Citation.] It ‘must be sufficiently precise to provide a person 

of ordinary intelligence fair notice that her contemplated conduct is 

forbidden.’ ” (Midway Venture LLC v. County of San Diego, supra, 60 

Cal.App.5th at p. 92; see also People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 

1090, 1115; In re Berry (1968) 68 Cal.2d 137, 156; People ex rel. Gascon v. 

HomeAdvisor, Inc. (2020) 49 Cal.App.5th 1073, 1082 [“ ‘An injunction must be 

sufficiently definite to provide a standard of conduct for those whose 

activities are to be proscribed”].) To put it simply, for an injunction to be 

valid, the enjoined party must be able to determine what they may or may 

not do in order to comply. (People v. Gordon (1951) 105 Cal.App.2d 711, 725;
23

City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th at p. 

415.) 

The temporary restraining order does not meet this standard. Thanasi 

and Preovolos Lewin risk violating the injunction and contempt exposure for 

merely giving legal advice or assistance or undertaking legal representation 

in unspecified capacities or contexts deemed “adverse” to Peter. In a 

litigation scenario, it is reasonably clear when litigants are adverse. But the 

temporary restraining order in this case goes beyond litigation contexts (in a 

declaration supporting his request for clarification, Thanasi mentions his 

right to exercise an Alpha & Omega shareholder vote, as well as his handling 

of tax and Securities and Exchange Commission audits) and even beyond 

business contexts. The use of the term “adverse” without context makes the 

order “a model of overreaching and confusion.” (In re Berry, supra, 68 Cal.2d 

at p. 156.) Because a reasonable person must necessarily guess at the 

injunction’s meaning, it cannot form the basis for the “potent weapon” of 

contempt. (Ibid.)

Peter’s arguments do not convince us otherwise. Quoting People v. 

Uber Technologies, Inc., supra, 56 Cal.App.5th 266, he argues a “contextual 

application of otherwise unqualified legal language may supply a clue to a 

law’s meaning, giving facially standardless language a constitutionally 

sufficient concreteness.” But in the general context of attorney/client 

relationships, particularly outside a litigation scenario, one must examine the 

nature of the matters to give meaning to the term (see footnote 8, ante). 

Further, given the order’s breadth, it “cannot be cured by reference to the 

‘context’ in which it issues” and must “stand or fall on the basis of what it 

purports to enjoin; the fact that it literally prohibits [lawful activity] cannot

be overcome by speculation that appellants subjectively understood what was 
24

intended by the injunction.” (People v. Kelley (1977) 70 Cal.App.3d 418, 422-

423.) Uber is inapposite. The injunction there “specifically identified” the 

conduct sought to be restrained—continued misclassification of drivers—and 

the injunction was “specific to the Labor Code provisions, Unemployment 

Insurance Code provisions, and Wage Orders” with which the defendants had 

to comply. (Id. at p. 316.) This broad disqualification order here contains no 

specificity at all. 

Peter further argues the word “adverse” is well within the requisite 

level of specificity to survive a vagueness challenge, pointing to use of the 

word in the Rules of Professional Conduct and by the California Supreme 

Court in Flatt v. Superior Court, supra, 9 Cal.4th 275 and SpeeDee Oil, supra,

20 Cal.4th 1135. He argues Thanasi’s inability to understand its meaning is 

“tantamount to saying that [he and Preovolos Lewin] cannot understand 

their ethical duties as members of the Bar, and does nothing to demonstrate 

that the term’s use in a temporary restraining order renders the order 

unconstitutional.” However, both Flatt and SpeeDee Oil make clear that 

determining adversity in successive representation scenarios requires 

information about the subject matter of the representation, and absent a 

litigation context, or information about the client (or non-client) entities one 

cannot know whether adverse interests are implicated.

VII. Thanasi’s Remaining Arguments

Having concluded the temporary restraining order is overbroad and 

vague, we need not reach Thanasi’s remaining arguments, including that the 

order is an unconstitutional prior restraint or that Peter did not meet the 

basic requirements for injunctive relief. However, because the trial court will 

presumably revisit the matter on Peter’s request for a preliminary injunction, 

we point out that many of Thanasi’s alleged wrongful acts are now complete 
25

(preparation of the irrevocable trust or postmarital agreement, his 

recommendations that Peter be removed as an officer or board member of 

PenChecks) or they resulted in monetary loss, which is not irreparable 

damage. Injunctive relief is not available to remedy such acts and harm. 

(Scripps Health v. Marin, supra, 72 Cal.App.4th at pp. 332-333; Thayer 

Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 

306 [“if monetary damages afford adequate relief and are not extremely

difficult to ascertain, an injunction cannot be granted”], limited on other 

grounds as stated in GHK Associates v. Mayer Group, Inc. (1990) 224 

Cal.App.3d 856, 880.)

DISPOSITION

The motion to dismiss is denied. The order is reversed. Appellants 

shall recover costs on appeal.

O’ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.