Marriage of Herath
Filed 12/31/12
Marriage of Herath CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
In re the
Marriage of
ASOKA
HERATH and LALANIE
HERATH.
___________________________________
ASOKA HERATH,
Respondent,
v.
LALANIE
HERATH,
Appellant.
B238292
(Los Angeles County
Super. Ct. No.
PD041132)
APPEAL
from an order of the Superior Court of
County. R. Carlton
Seaver, Judge. Affirmed
______
Vorzimer
Masserman, Dean E. Masserman, and David A. Randall for Appellant.
David
S. Delnero for Respondent.
Lalanie Herath appeals from the trial court’s
order denying her motion to disqualify opposing counsel in this
BACKGROUND
On
May 11, 2006, Asoka Herath filed a petition to dissolve his marriage to Lalanie Herath.
own a day care center for young children.
On
August 30,
2011, Asoka had
the day care center’s license on the basis of various alleged
and Patricia O’Connor to represent and assist them in those proceedings. (All subsequent references to “O’Connor†are
to Robert O’Connor.)
O’Connor
wished to meet with Asoka and Lalanie at the day care center in the morning of Saturday, October 1, 2011. O’Connor tried to telephone
Asoka on September 30 but was unable to reach him. O’Connor then telephoned Asoka’s attorney,
David Delnero, and eventually learned that Asoka was not feeling well enough to
attend the meeting the following morning.
Delnero has represented Asoka since April 2006.
The
O’Connors arrived at the day care center at approximately 9:45 a.m. on October 1, 2011. The day care center was having an “open
house†that morning, and Lalanie began giving the O’Connors a tour of the
facility while also attending to other guests.
Delnero
arrived at approximately 10:00 a.m. and joined the
O’Connors on their tour. Lalanie
introduced him to the O’Connors as “David†and said he was an attorney, but she
did not say that he represented Asoka.
Later, after Delnero left, Lalanie told O’Connor that Delnero was
Asoka’s lawyer.
According
to Delnero, he was never alone with Lalanie, never asked her any questions, and
never asked for a tour of the facility.
According to Lalanie, Delnero asked for a tour and “asked questions
and was treated as a prospective parent would be treated touring the
facility.†She also testified that she
was alone with him for 10 to 15 minutes. All witnesses appear to agree that Delnero
was at the facility for approximately 20 to 30 minutes. O’Connor does not recall seeing Delnero alone
with Lalani or hearing Delnero ask Lalanie any questions.
On
October 5,
2011, Lalanie moved to disqualify Delnero
on the basis of “gross ethical misconduct†because, in the course of his
contact with her at the day care center on October 1, 2011,
he communicated with her outside the presence of her attorney and without her
attorney’s consent. Asoka filed written
opposition, including declarations by O’Connor and Delnero. Lalanie, Delnero, and O’Connor all testified
at the hearing on the motion.
The
trial court denied the motion. The court
stated that a case cited by Lalanie explained that ruling on a motion to
disqualify counsel requires the court to engage in a “‘cautious balancing of
competing interest[s].’†The court
determined that Delnero’s conduct was “not egregious†and that Asoka had “not
had the opportunity to take advantage of [Delnero’s conduct] in some unpleasant
way.†The court concluded that Delnero’s
“offense is modest compared to the incredible downside of disqualifying
counsel†and accordingly denied the motion.
Lalanie timely appealed. An order
denying a motion to disqualify counsel is appealable. (Apple
Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253,
1263-1364.)
DISCUSSION
“We
review a trial court’s ruling on a disqualification motion for abuse of
discretion, and we accept as correct all express or implied findings that are
supported by substantial evidence. . . . ‘However, the trial
court’s discretion is limited by the applicable legal principles. . . .
Thus, where there are no material disputed factual issues, the appellate court
reviews the trial court’s determination as a question of
law. . . . [A] disqualification motion involves concerns
that justify careful review of the trial court’s exercise of discretion.’†(Brand
v. 20th Century Ins. Co./21st Century Ins. Co. (2004) 124 Cal.App.4th 594,
601.)
Lalanie
first argues that “[d]e novo review is appropriate in this matter because there
are no material facts in dispute.†We
disagree, because some of the material facts are disputed. It is undisputed that Delnero had contact
with Lalanie outside the presence of her attorney and without her attorney’s
consent, but the nature and extent of that contact—whether Delnero was ever
alone with Lalanie, whether he asked her any questions, and what she told
him—are disputed. Lalanie does not
contend that contact between a lawyer and an opposing party outside the
presence of the opposing party’s lawyer and without that lawyer’s consent must
regardless of how minor the infraction and how grave the detriment of retaining
substitute counsel. The nature and
extent of Delnero’s contact with Lalanie are therefore material, because they
partly determine the gravity of Delnero’s offense. We accordingly reject Lalanie’s argument that
there are no material factual disputes and that the trial court’s order is
consequently subject to de novo review.
We therefore review the order for abuse of discretion.
Lalanie’s
only remaining argument is that the trial court abused its discretion because
its order is not supported by substantial evidence. We are not persuaded.
Lalanie
argues that no evidence supports the trial court’s determination that Asoka
would suffer severe detriment (“incredible downsideâ€) if the motion were
granted. We disagree. Delnero’s declaration reflects that he has
represented Asoka in this matter since April 2006 and that the case was set for
trial by July 2008. It was reasonable
for the trial court to infer that a replacement attorney would require a
substantial amount of time to learn the facts, analyze the legal issues, and
develop the arguments in order to duplicate the familiarity with the case that
Delnero has acquired during five years of representation and trial
preparation. Substantial evidence
therefore supports the trial court’s finding that Asoka would suffer severe
detriment if the disqualification order were granted.
The
trial court determined that Delnero’s conduct was “not egregious,†that it had
not conferred a significant tactical advantage upon Asoka, and that
disqualification of Delnero would cause severe detriment to Asoka. All of those determinations were supported by
substantial evidence, namely, Delnero’s declaration and testimony, according to
which Delnero (1) has represented Asoka in this matter since 2006 and
(2) merely received a tour of the day care center from Lalanie in much the
same manner as any other guest attending the open house. Combined with the effect of a party’s
right to counsel of choice and an attorney’s financial interest in
representing a client (Bell v. 20th
Century Insurance Company (1989) 212 Cal.App.3d 194, 197-198), both of
which weigh against disqualification, the trial court’s determinations amply
supported the denial of Lalanie’s motion to disqualify Delnero. The trial court did not abuse its discretion.
DISPOSITION
The
order is affirmed. Respondent shall
recover his costs of appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD,
Acting P. J.
We concur:
CHANEY, J. JOHNSON,
J.
the parties share a last name, we will refer to them by their first names to
avoid confusion. No disrespect is
intended.
summary of the facts is drawn from the declarations and other documents in the
record. We will describe any relevant
factual disputes, but many of the material facts are undisputed.
