Devone v. Western Financial Bank

Filed 3/15/06 Devone v. Western Financial Bank CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Dismissed. Motion to augment denied. Motion to strike granted.

Kahdeman, Nickel & Frost and Richard J. Kahdeman for Defendant and Appellant.

Law Office of Linda E. Powell, Inc. and Linda E. Powell for Plaintiff and Respondent.

* * *

Defendant and appellant Western Financial Bank (Western Financial) appeals from an order denying its motion to disqualify counsel. As Western Financial admits, after the trial court denied its motion and before the matter went to trial, the law firm it had sought to have disqualified substituted out of the case. Plaintiff and respondent Adam DeVone (DeVone) claims the matter on appeal is now moot and should be dismissed. Western Financial says the matter is not moot and that this court should now order the trial court to disqualify not only the original attorney, but also the substitute attorney.

We agree that the appeal from the order denying the motion to disqualify the original law firm is moot. Furthermore, the issue of the disqualification of the substitute attorney is not before this court. We dismiss the appeal. We also deny Western Financial's tardy request to augment the record to include documents not pertinent to the issue of the disqualification of the original law firm and we grant DeVone's motion to strike any reference in Western Financial's briefs to the purported motion to disqualify the substitute attorney and the purported order denying that motion.

I

DISCUSSION

On January 19, 2005, Western Financial filed a motion to disqualify the law firm of Turner, Reynolds, Greco & O'Hara (the Turner firm) from representing either DeVone or any other party to the litigation. The court denied the motion by formal order dated March 8, 2005, stating, inter alia, that Western Financial had no standing to bring the motion. Western Financial filed its notice of appeal on March 15, 2005.

In its opening brief filed October 14, 2005, Western Financial states in a footnote, and without citation to the record: â€