Filed 7/8/26 Raz v. Beith David Educational Center CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
RAFAEL RAZ, et al., B341572
Plaintiffs, Cross-Defendants, (Los Angeles County
and Appellants, Super. Ct. No.
v. 24STCV08540)
BEITH DAVID EDUCATIONAL
CENTER,
Defendant, Cross-Complainant,
and Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, Upinder S. Kalra, Judge. Affirmed in part, reversed in
part.
Schreiber & Schreiber, Edwin C. Schreiber, Eric A.
Schreiber, and Ean M. Schreiber for Appellants.
Hooman Moshe Gideon, in pro. per., for Appellant.
Farivar Law Firm and Fahim Farivar for Respondent.
_______________________________________
This action involves a dispute over the governance of a
nonprofit religious corporation, Beith David Educational Center
(Beith David). Plaintiffs and appellants Rafael Raz and Shlomo
Sherf, along with several other plaintiffs, initiated this action by
filing a petition to void a Board Member Election held on
December 3, 2023. Beith David filed a cross-complaint and then
a first amended cross-complaint (the FACC) against appellants
and other plaintiffs for, among other things, alleged
misappropriation of Beith David funds and other alleged
financial misconduct to the detriment of Beith David.
Appellants moved to strike nine of the seventeen causes of
action in the FACC under Code of Civil Procedure section 425.16,
the anti-SLAPP statute.1 They also moved for an order
disqualifying Beith David’s counsel and his firm based on an
alleged conflict of interest and the advocate-witness rule.
The trial court denied both motions. With respect to the
special motion to strike, the court concluded appellants did not
meet their burden of demonstrating the conduct forming the
basis of the underlying FACC involved protected activity within
the meaning of section 425.16. As to the motion to disqualify, the
trial court found neither the advocate-witness rule nor counsel’s
dual roles (i.e., a Beith David Board Member and counsel for
Beith David) mandated disqualification.
1 SLAPP is the acronym for strategic lawsuit against public
participation. All further undesignated statutory references are
to the Code of Civil Procedure.
2
Appellants appeal from the orders denying the motions.2
We conclude the trial court did not abuse its discretion in denying
the motion to disqualify counsel. We further conclude the trial
court correctly denied appellants’ motion to strike causes of
action in their entirety because those claims are primarily based
on allegations of financial misconduct that is not protected under
the anti-SLAPP statute. However, we agree with appellants that
allegations in support of some of the causes of action regarding
appellants’ attempt to overturn the election must be stricken. We
therefore reverse the order, in part, denying the anti-SLAPP
motion, and direct the court to strike specific allegations in the
FACC as we shall detail below. On remand, the court shall
determine whether appellants are prevailing parties on the anti-
SLAPP motion entitled to attorney’s fees, or whether appellants’
partial success was of no practical effect and, therefore, attorney’s
fees are not required. We express no view on this issue that lies
within the broad discretion of the trial court.
2 Cross-defendant Hooman Moshe Gideon, in pro per, also
purports to appeal from the orders denying the motions by filing
his own notice of appeal and a joinder to appellants’ opening
brief. We grant Beith David’s motion to dismiss Gideon’s appeal
for lack of standing. The trial court denied Gideon’s motion to
join in appellants’ anti-SLAPP motion (and he does not appeal
from this ruling), and he did not file any motion or joinder to
disqualify counsel. He has therefore not been aggrieved by an
appealable order. (§ 902.)
3
BACKGROUND
A. The FACC’s Allegations
The FACC consists of 50 pages of allegations, along with
hundreds of pages of exhibits.3 We summarize the facts and
allegations as relevant here.
Beith David was founded in 1996 as a non-profit
corporation. It was organized for religious purposes and operates
a synagogue serving the local Jewish community in Tarzana.
Although Beith David established a Board of Directors when it
was founded, due to the nature of its purpose as a religious
organization and the close-knit community it serves, its Board
members did not always operate under strict protocol and in
accordance with its bylaws.
Hooman Moshe Gideon independently operated a catering
and takeout business utilizing the kitchen facilities of Beith
David. In return for the co-share of Beith David’s kitchen
facilities, Gideon agreed to pay a fee to Beith David and
“contribute a significant portion towards Beith David’s utility
costs.”
In or around 2012-2013, Beith David was suffering from
financial troubles and had debts totaling approximately $1.7
million. At the time, Farhad Farzan, with the consent of the
3 The Code of Civil Procedure provides that a complaint or
cross-complaint shall contain a “statement of the facts
constituting the cause of action, in ordinary and concise
language” (§ 425.10, subd. (a)(1)), without including allegations
that are “not essential” to a cause of action (§ 431.10, subd.
(b)(1)). The FACC violates these rules. Rather than setting forth
a short and plain statement of the ultimate facts that support
Beith David’s causes of action, the FACC includes voluminous,
superfluous allegations.
4
Board, directed all of the then Board members to resign and
declared he would be taking over all financial matters for Beith
David. Specifically, on August 6, 2012, many of the Board
members and trustees of Beith David, including Raz, Ken
Pezeshki, and Javid Rad were either terminated or resigned with
almost all responsibilities of Beith David being delegated to
Farzan.
In late-2019, Raz, Pezeshki and several others orchestrated
a plan that effectively coerced Farzan into relinquishing his
position at Beith David. Raz and Pezeshki began having issues
with Gideon, including issues with past due rent and utilities. In
late August 2023, Raz exchanged emails with Gideon in which
they both accused each other of wrongdoing. At this stage, Raz
and Pezeshki concluded that forming a legitimate Board was
essential to confront and manage the situation with Gideon.
Beith David held an election for the Board of Directors.
Fahim Farivar received the highest number of votes in the
election. There was initially a spirit of unity and collaboration
among the new Board members. This allegedly changed,
however, when Raz began to feel the new Board was real and he
may lose his absolute control over Beith David, having to share
responsibilities. Thus, Raz, with the support of some of his allies,
“began to propagate a baseless claim of ‘election fraud.’ ”
The Board began setting agendas, organizing events for the
community, and discussed how to proceed with Gideon as an
independent contractor of Beith David. The Board submitted a
proposal to Gideon by providing him with a draft lease
agreement, “but to no avail.” On January 9, 2024, Raz and other
Board members signed the Board minutes agreeing to events that
occurred during the Board meeting on January 3, 2024.
5
In the meantime, the Board was unable to reach any
agreement with Gideon because he was essentially asking for his
business to use Beith David’s kitchen without paying Beith
David. Despite numerous efforts, Gideon did not agree to any
proposal by the Board and continued to claim he was not going to
agree to any terms and he was planning to leave by May 31,
2024. Immediately after the impasse with the Board, Gideon
started spreading false information about the election and the
Board. Raz’s attitude then “completely changed” and he started
defending Gideon and opposing any proposition to legally evict
Gideon.
On March 12, 2024, Raz “unilaterally and without
providing any notice, removed all of [ ] Farivar’s online banking
access to Beith David’s accounts.”
Beith David held a general Board meeting on March 14,
2024, during which various positions of the Board were filled,
including Chairperson, Vice Chair, Treasurer, and President.
Pezeshki and Sherf also voted for the positions. The following
day, a statement was released by Beith David to the community,
announcing the positions, “hoping to take steps towards peace
and unity.” “However, shortly after these events,” Raz, Pezeshki,
Gideon, and Sherf “continued to disrupt the governance of the
[B]oard through various acts and omissions.”
Raz and Gideon colluded to engage in “tactics seemingly
intended to coerce [B]oard members.” Raz and Gideon are
allegedly “taking actions to ensure the newly duly elected [B]oard
would fall apart, so that they would be able to advance their own
personal agenda, [while] continuing to exploit Beith David for
their own personal gain, advantage, and to the detriment of [the]
community.”
6
On March 24, 2024, Beith David was hosting a Purim party
for the community and retained Simon Caterer to cater the food.
Raz, however, spoke to Simon Caterer and told him it was “not a
proper time for him to contract with Beith David to provide
catering services.” Raz was “intentionally trying to sabotage a
potential profitable catering agreement between Simon Caterer
and Beith David and intentionally breached his fiduciary duty to
Beith David.”
On April 5, 2024, Farivar emailed all the Board members
reminding them of their obligations and their fiduciary duties to
Beith David. Farivar expressed concern regarding several legal
and regulatory compliance issues, including reporting obligations
for non-profit organizations. The email also “highlighted
concerns regarding zoning, health codes, and business licenses,
particularly related to the operating of catering services of [ ]
Gideon at Beith David” and Gideon’s “continued non-payment of
rents and obligations.” Farivar “called for a collective effort to
ensure Beith David’s operational integrity and legal standing and
urged regular meetings to audit practices, seek expert advice,
and create action plans to resolve issues.”
The day before Farivar emailed the Board, on April 4, 2024,
appellants, along with other plaintiffs, filed a “Verified Petition
for an Order Voiding Purported Election of Non-Profit
Corporation and Order a New Properly Supervised Election and
Verified Complaint for Injunctive Relief” (the petition). The
FACC alleges the filing of the petition was “frivolous and in bad
faith” and that appellants “agreed to the legitimacy of the
Election and signed documents agreeing not to challenge the
Election.” Appellants are “aware the Election was conducted
legally with fairness and integrity. In fact, [ ] Raz oversaw the
7
entire election process” and appellants never “expressed any
concern with the Election until after the results were obtained.”
The FACC further alleges appellants have “intentionally
caused harm to Beith David by either illegally misappropriat[ing]
and/or allow[ing] misappropriation of Beith David
funds . . . . Further, four of the Cross-Defendants ran for election
to the [B]oard of [D]irectors and lost–now seeking legal recourse
to change election results which did not go in their favor. It
seems Cross-Defendants are colluding in a coordinated effort to
overturn a legitimate election and continue their financial control
and abuse of [Beith David].” Raz and Gideon continue to
“intentionally bully, threaten, and/or intimidate the [B]oard
members in an attempt to hold onto [their] power and continue to
take advantage of Beith David.”
The FACC goes on to allege that the actions of Raz,
Pezeshki, Sherf, and their associates raise “serious questions
about their proclaimed commitment to the best interests of Beith
David” and “[t]heir decision to sue the organization, emasculating
it by taking over its accounts to make sure Beith David has no
funds to defend itself, effectively leaving it without
representation, alongside their failure to take necessary
protective measures, starkly contradicts their claims of acting for
the community’s benefit.”
The FACC states that on April 11, 2024, the trial court
denied appellants’ ex parte application for a preliminary
injunction and temporary restraining order. The following week,
Raz allegedly delivered a speech to the synagogue’s congregants
and intentionally provided “misinformation and false narratives
to the congregants about Beith David and the current elected
[B]oard” including that the Board members were invalidly
8
elected. Raz “aimed to perpetuate his false narrative of election
fraud, seeking applause and support for solely him and [ ]
Pezeshki to continue managing the [synagogue], despite the
presence of a duly elected [B]oard of [D]irectors.”
The FACC alleges seventeen causes of action against
appellants, Gideon, Sherf, Pezeshki and other individuals
sounding in both contract and tort.
B. The Special Motion to Strike
Appellants moved to strike the following causes of action in
the FACC under the anti-SLAPP statute: breach of the covenant
of good faith and fair dealing (second cause of action); breach of
fiduciary duty (third cause of action); fraud (fourth cause of
action); conspiracy to commit fraud (fifth cause of action);
removal of director from non-corporation for malfeasance
(seventh cause of action); aiding and abetting (tenth cause of
action); intentional interference with prospective economic
interests (fourteenth cause of action); intentional interference
with current business advantage (fifteenth cause of action); and
declaratory relief (seventeenth cause of action). They
alternatively moved to strike specific allegations in the
“Statement of Facts” section of the FACC and other specific
allegations alleged in support of each of the nine causes of action.
After a hearing on the special motion to strike, the trial
court denied the motion.
C. Motion to Disqualify Counsel
In a separate motion, appellants moved to disqualify
Farivar and his law firm from representing Beith David. They
argued Farivar has a conflict of interest based on his role as
Chairman of the Board of Directors of Beith David and because
9
he is an individual defendant in the action.4 The trial court found
that disqualification was unwarranted because Beith David,
through its Board of Directors, “executed an informed written
consent as to the potential dual nature of Farivar’s role in the
instant matter.” It further stated that “should the FACC proceed
to trial it will be a bench trial” and the “court is not concerned
that it will confuse Farivar’s arguments as evidence.” The court,
therefore, denied the motion. The court noted at the hearing,
however, that it believed it could “separate counsel as a witness
and an advocate” but if the situation became “impractical” in the
future, the issue could be raised again at trial.
Appellants timely appealed from the order denying their
anti-SLAPP motion and the order denying their motion to
disqualify counsel.5
DISCUSSION
I. ANTI-SLAPP MOTION
A. The Anti-SLAPP Statute and Standard of
Review
The Legislature enacted section 425.16—known as the anti-
SLAPP statute—to provide a procedural remedy to dispose of
lawsuits or individual causes of action that are brought to chill
4 Appellants also argued a conflict existed based on Farivar
being a cross-complainant, but the FACC removed Farivar as a
cross-complainant, leaving only Beith David.
5 We deny both Beith David’s motion to dismiss the appeal
on procedural grounds, and appellants’ request for sanctions for
filing a frivolous motion to dismiss.
10
the valid exercise of a person’s constitutional rights. (Rusheen v.
Cohen (2006) 37 Cal.4th 1048, 1056; see Baral v. Schnitt (2016) 1
Cal.5th 376, 395 (Baral); § 425.16, subd. (b)(1).)
The anti-SLAPP statute requires a two-step process: first,
the moving party must establish that the lawsuit’s claims are
based on activity protected by the statute. (Briganti v.
Chow (2019) 42 Cal.App.5th 504, 508.) The anti-SLAPP statute
provides for four categories of protected activity. (See § 425.16,
subd. (e)(1) to (e)(4).) “If the defendant makes the required
showing, the burden shifts to the plaintiff to demonstrate the
merit of the claim by establishing a probability of success.”
(Baral, supra, 1 Cal.5th at p. 384.) “In making these
determinations the court considers ‘the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability
or defense is based.’ (§ 425.16, subd. (b)(2).)” (Briganti, at
p. 508.)
In “so-called mixed causes of action” cases—“that is, a
cause of action that rests on allegations of multiple acts, some of
which constitute protected activity and some of which do
not”— the moving party “must identify the acts alleged in the
complaint that it asserts are protected and what claims for relief
are predicated on them.” (Bonni v. St. Joseph Health System
(2021) 11 Cal.5th 995, 1010 (Bonni).) “In turn, a court should
examine whether those acts are protected and supply the basis
for any claims. It does not matter that other unprotected acts
may also have been alleged within what has been labeled a single
cause of action; these are ‘disregarded at this stage.’ [Citation.]
So long as a ‘court determines that relief is sought based on
allegations arising from activity protected by the statute, the
second step is reached’ with respect to these claims.” (Bonni, at
11
p. 1010.) “ ‘Allegations of protected activity that merely provide
context, [however], without supporting a claim for recovery,
cannot be stricken under the anti-SLAPP statute.’ ” (Id. at p.
1012; accord Baral, supra, 1 Cal.5th at p. 394 [“Allegations of
protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the
anti-SLAPP statute”].)
If the nonmoving party cannot demonstrate that its claims
based on protected acts are legally sufficient, “those particular
allegations [of protected activity] will be stricken. Conversely, to
the extent any acts are unprotected, the claim based on those acts
will survive.” (Bonni, supra, 11 Cal.5th at p. 1012.)
“The anti-SLAPP procedures are designed to shield a
defendant’s constitutionally protected conduct from the undue
burden of frivolous litigation. It follows, then, that courts may
rule on plaintiffs’ specific claims of protected activity, rather than
reward artful pleading by ignoring such claims if they are mixed
with assertions of unprotected activity.” (Baral, supra, 1 Cal.5th
at p. 393.)
We review the trial court’s decision to grant or deny an
anti-SLAPP motion de novo. (Monster Energy Co. v. Schechter
(2019) 7 Cal.5th 781, 788.)
12
B. The Allegations of Attempting to Overturn a
Lawful and Legitimate Election in Support of
the Second, Third, Fifth, Seventh, Tenth,
Fourteenth, Fifteenth, and Seventeenth Causes
of Action Must be Stricken
1. Prong 1: Whether Beith David’s Claims are Based on
Protected Activity
Appellants contend nine causes of action in the FACC are
based on their filing of the petition seeking to vacate the Beith
David election and speech related to the filing of the petition. It
follows, according to appellants, that those claims are based on
protected activity under section 425.16(e)(1) and (e)(2) as written
or oral statements made “before a . . . judicial proceeding” and/or
“in connection with an issue under consideration or review by
a . . . judicial body.” Beith David does not dispute that
statements, writings, and pleadings in connection with civil
litigation constitute protected petitioning activity under the anti-
SLAPP statute. It counters, however, that the FACC’s claims
arise from alleged financial misconduct, self-dealing, and
interference with corporate governance—not the filing of the
petition. They argue that any references to election-related
speech or petitioning are merely incidental background rather
than the injury-producing conduct.
Consistent with Bonni and Baral, we reviewed the FACC to
determine whether Beith David’s allegations regarding the
petition supply the elements of the causes of action or merely
provide context. First, we note that several of the allegations in
the FACC identified by appellants do not refer to the filing of the
petition, and thus, with respect to those allegations, appellants
have not met their burden to demonstrate the conduct constitutes
13
protected activity. For example, paragraph 48 alleges that Raz
“with the support of some of his allies, began to propagate a
baseless claim of ‘election fraud.’ ” Another paragraph identified
by appellants in their motion, paragraph 63, provides: “It now
seems to reflect a pattern of behavior resembling collusion
between Mr. Gideon and Mr. Raz, who have engaged in tactics
seemingly intended to coerce board members. Many of these
board members are young professionals unaccustomed to facing
such aggressive levels of intimidation. Clearly, Mr. Raz and Mr.
Gideon are taking actions to ensure the newly duly elected board
would fall apart, so that they would be able to advance their own
personal agenda, with continuing to exploit Beith David for their
own personal gain, advantage, and to the detriment of this
community.” As the trial court aptly noted during the hearing on
the motion, displeasure with the election “was expressed long
before any lawsuit was filed[.]” Thus, not all allegations in the
FACC regarding appellants’ displeasure with the election or their
desire for the Board to “fall apart” constitute allegations based on
filing a lawsuit, as appellants contend.
Second, we agree with Beith David that some of the
allegations in the “Statement of Facts” referring to the filing of
the petition explicitly merely provide context for the action. For
example, under the heading “Legal Action and Harassment,” the
FACC lists the procedural history of the lawsuit, including that
appellants filed an ex parte application for an Order to Show
Cause for a Preliminary Injunction and Temporary Restraining
Order, which was denied, and that appellants’ filing of the
petition was frivolous and in bad faith because they did not
express concern with the election until after the results were
14
obtained. Appellants have not tied those allegations, however, to
any elements of Beith David’s claims.
Accordingly, we reject appellants’ assertion that nine
causes of action must be stricken in their entirety because the
FACC incorporates by reference the general allegations in the
“Statement of Facts.” We agree with appellants’ alternative
argument, however, that allegations of “attempting to overturn a
fair and legitimate election” are subject to an anti-SLAPP motion
because they refer to the filing of the petition (protected activity)
and they support a claim for recovery.
Specifically, in support of the second and third causes of
action for breach of covenant of good faith and fair dealing and
breach of fiduciary duty, the FACC alleges that appellants
“breached [their duty of loyalty, duty to use reasonable care, and
their fiduciary duties by] attempting to overturn a lawful and
legitimate election in contravention to the Beith David bylaws.”
In support of the fifth cause of action for conspiracy to commit
fraud, the FACC alleges Raz, along with other cross-defendants
“were part of a conspiracy to defraud Beith David
by . . . [attempting] to overturn a lawful and legitimate election in
contravention to the Beith David bylaws.” The seventh cause of
action seeks to remove appellants from the Board of Directors in
part based on the allegation that they recently “escalated such
conduct in an attempt to overthrow a fair and legitimate election,
to the detriment of the corporation and its members.” The tenth
cause of action for aiding and abetting alleges that, through their
concerted effort together, appellants “are attempting to overturn
a lawful and legitimate election in contravention to the Beith
David bylaws in an attempt to damage Beith David.” Similarly,
in support of the fourteenth and fifteenth causes of action for
15
intentional interference with prospective economic interests and
intentional interference with current business advantage, the
FACC alleges appellants knowingly and intentionally engaged in
conduct to disrupt a business relationship by, among other
things, “attempting to overturn a fair and legitimate election,
crippling Beith David’s ability to function and advance its
interests.” Finally, in seeking declaratory relief, Beith David
alleges that appellants are “collaborating in a coordinated effort
to overturn a fair and legitimate election.”
Although these allegations do not explicitly reference the
petition, a fair reading of the FACC is that these allegations are
based on appellants’ filing of the petition to overturn the election.
Appellants note the only way to overturn an election is by filing a
lawsuit, and Beith David does not dispute this assertion.
Beith David instead argues the gravamen of its cross-
claims is “alleged financial misconduct, misappropriation of
funds, obstruction of corporate governance, and breaches of
fiduciary duty—noncommunicative conduct that is not protected
under section 425.16.” Beith David further claims that “[e]ven if
all references to [a]ppellants’ statements and litigation conduct
were excised from the pleading, Beith David’s causes of action
would remain independently viable because liability is based on
[a]ppellants’ alleged misappropriation of funds, obstruction of
governance, and breaches of fiduciary duty—not on any protected
speech or petitioning activity.” We agree with Beith David on
both of these points. But that does not change the fact that, as
alleged, appellants’ petitioning activity forms one of the bases for
relief. Under Bonni and Baral, these allegations are subject to
an anti-SLAPP motion, and the court must proceed to the second
step of the analysis.
16
2. Prong 2: Beith David Cannot Show a Probability of
Prevailing on the Merits
It is undisputed that any claims based on the filing of the
petition are barred by the litigation privilege and, therefore, fail
as a matter of law. (See Civ. Code, § 47, subd. (b).) Thus, under
the standard set forth in Bonni and Baral, these particular
allegations must be stricken.
To be clear, Beith David cannot base any of its claims for
relief on appellants’ filing of the petition to vacate the election or
speech related to the contents of the petition. Beith David
asserts none of its causes of action is based on the filing of the
petition, and they are only seeking relief for financial misconduct.
The manner in which the FACC is pled, however, demonstrates
otherwise. Thus, the allegations described above regarding
“overturning” an election, in support of the second, third, fifth,
seventh, tenth, fourteenth, fifteenth, and seventeenth causes of
action, must be stricken.6 However, those causes of action
survive to the extent they are also based on unprotected activity,
6 Appellants also seek to strike allegations in support of the
fourth cause of action for fraud. But those allegations do not
reference overturning the election. Rather, the FACC alleges
that Raz claims the election was “fixed and illegitimate” and
Gideon makes “false statements about Beith David,” including
that the election was fraudulent. Appellants have not specifically
demonstrated that these allegations are based on filing the
lawsuit or otherwise constitute protected activity.
17
such as misappropriation of funds and misusing funds for
appellants’ own personal gain.7
C. Attorney’s Fees
Under section 425.16, subdivision (c), prevailing cross-
defendants are “entitled to recover [their] attorney’s fees and
costs.” However, not every cross-defendant “who obtains some
relief on a special motion to strike is a [prevailing cross-
defendant] for purposes of recovering fees and costs under the
anti-SLAPP statute.” (Ross v. Seyfarth Shaw LLP (2023) 96
Cal.App.5th 722, 732.) “A [cross-defendant] who is only partially
successful will generally be considered to have prevailed, but not
if ‘the results of the motion were so insignificant that [he or she]
did not achieve any practical benefit from bringing the motion.’ ”
(Ibid.)
Here, only a limited number of allegations shall be stricken
from the FACC, as described above. But “[w]hether a partially
successful cross-defendant achieved a sufficient benefit to qualify
as a prevailing party lies within the broad discretion of the trial
court.” (Gumarang v. Braemer on Raymond, LLC (2025) 110
Cal.App.5th 370, 388.) On remand, the trial court shall
determine the amount of attorney’s fees appellants are entitled
to, if any, for their partially successful motion.
II. MOTION TO DISQUALIFY
Appellants contend the trial court erred by denying its
motion to disqualify Farivar and his law firm on two grounds:
(1) there is a conflict of interest based on his roles as Chairman of
the Board of Beith David and counsel for Beith David; and (2) the
7 On remand, the court shall consider whether any of the
causes of action fail as a matter of law, either because certain
allegations have been stricken, or on any other ground.
18
advocate-witness rule mandates disqualification. For the reasons
discussed below, we discern no abuse of discretion. (See People ex
rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc.
(1999) 20 Cal.4th 1135, 1143 [a trial court’s decision on a
disqualification motion is reviewed for abuse of discretion].)
A. Conflict of Interest
California Rules of Professional Conduct, rule 1.7(b)
prohibits, without informed written consent from each affected
client, a lawyer from representing a client if there is a significant
risk that the lawyer’s representation will be “materially limited
by the lawyer’s responsibilities to or relationships with another
client” or “by the lawyer’s own interests.”
Here, Beith David’s Board executed an informed written
consent waiving any potential conflicts. Behrooz Natanzi, a
Beith David Board member, submitted a declaration in
opposition to the motion to disqualify Farivar, in which he
declared that Farivar “explained the potential conflicts of
interest” but the Board unanimously approved Farivar’s
continued representation. He further declared: “[I]t is evident
that Mr. Farivar’s actions have been in the best interest of Beith
David. His voluntary efforts, financial contributions, and
strategic legal representation were essential in navigating the
challenges posed by the lawsuit. Disqualifying him would not
only harm Beith David financially but also undermine the
significant progress made in safeguarding Beith David’s
interests.” According to Natanzi, disqualifying Farivar “would
not only impose severe financial burdens on Beith David but
would also undermine the progress made in stabilizing the
organization. Mr. Farivar has fronted legal costs and fees out of
his own resources, allowing Beith David to focus on its core
19
mission without the added strain of litigation expenses.
Replacing him with new counsel at this stage would result in
significant delays, increased costs, and the potential loss of
strategic momentum, all of which would be detrimental to Beith
David’s ongoing recovery efforts.”
Appellants do not clearly articulate the precise conflict other
than to point out that Farivar is the Chairman of the Board of
Beith David and Beith David’s counsel. They claim that case law
confirms that Farivar cannot simultaneously represent Beith
David and be a director despite the fact that the Board
“unanimously agreed that no [ ] conflict exists.” The supposed
case law appellants rely upon, however, is really an absence of
case law. Appellants state they have “been unable to find any
authority that an attorney can represent the corporate defendant,
and represent the corporation on a cross-complaint which seeks
attorney fees for the attorney and his law firm.” An absence of
authority cannot prove an affirmative point. And the supposed
“analogous” case law cited by appellants involves facts materially
different from those here. (See e.g. Flatt v. Superior Court (1994)
9 Cal.4th 275 [successive representation conflict where an
attorney previously represented one client and later undertook
representation adverse to the former client]; see also Blue Water
Sunset, LLC v. Markowitz (2011) 192 Cal.App.4th 477 [derivative
action during which the lawyer simultaneously represented a
limited liability company and a member with conflicting
interests].)
Accordingly, appellants have not met their burden on
appeal to demonstrate the trial court acted in an arbitrary and
capricious manner by declining to disqualify Farivar from
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representing Beith David based on his position as Chairman of
Beith David’s Board.
B. Advocate-Witness Rule
California Rules of Professional Conduct, rule 3.7 provides:
“A lawyer shall not act as an advocate in a trial in which the
lawyer is likely to be a witness unless: [¶] (1) the lawyer’s
testimony relates to an uncontested issue or matter; [¶] (2) the
lawyer’s testimony relates to the nature and value of legal
services rendered in the case; or [¶] (3) the lawyer has obtained
informed written consent from the client.”
In finding disqualification is unwarranted under the
advocate-witness rule, the trial court first noted that the Board
executed an informed written consent as to the potential dual
nature of Farivar’s role as a Board member and counsel for Beith
David. The court then found the “risk of confusing the trier of
fact is low” because “should the FACC proceed to trial it will be a
bench trial.”8 The court stated it “is not concerned that it will
confuse [ ] Farivar’s argument as evidence.” The court also noted
Beith David “has a strong interest in counsel of its choice coupled
with avoiding duplicate expense and time-consuming efforts in
proceeding with [co-counsel] Ross LLP as the main advocate.”9
8 The FACC is the only pleading that remains to be litigated
in the proceedings below. The court granted Beith David’s
motion for judgment on the pleadings as to the petition . It also
sustained Beith David’s demurrer, without leave to amend, to
appellants’ related complaint filed two months after the petition.
9 The Board also retained Ross LLP as co-counsel. Farivar
has done most of the work on the case, however, because he
agreed to front the fees and costs required to defend Beith David.
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We conclude the trial court was well within its discretion in
declining to disqualify Farivar based on the advocate-witness
rule. It balanced the competing interests and ultimately
concluded the risk of confusing the trier of fact (i.e., the court)
was low and outweighed by the competing policies of ensuring
parties have representation by counsel of their choice and
avoiding duplicate expenses.
Appellants repeatedly assert that Farivar will be “a star
factual witness” and “he will likely be on the witness stand longer
than any other witness.” We reject these unsubstantiated claims.
As noted above, the FACC is the only pleading that remains to be
litigated. And, according to Beith David, it can prove their case
based on other witnesses who have submitted declarations,
subpoenaed bank records, and Beith David’s internal Board
minutes. Beith David claims Farivar’s testimony is only
incidental, and for that testimony, Ross LLP is available to
conduct the examination. Moreover, appellants have not
identified a single material factual issue for which they would
call Farivar as a hostile witness or need to cross-examine him. If,
for some reason, Farivar’s testimony plays a bigger role in the
trial than anticipated, the court recognized that the
disqualification issue could be raised again at trial. This ruling
was not an abuse of discretion.
DISPOSITION
The order denying appellants’ anti-SLAPP motion is
reversed in part. The allegations of overturning the election in
support of the second, third, fifth, seventh, tenth, fourteenth,
fifteenth, and seventeenth causes of action shall be stricken from
the FACC. On remand, the trial court shall determine whether
any of those causes of action fail as a matter of law. The trial
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court shall also determine whether appellants are prevailing
parties on the anti-SLAPP motion for purposes of attorney’s fees.
The order denying appellants’ motion to disqualify Farivar and
his law firm is affirmed. The parties shall bear their own costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
MORI, Acting P. J.
COGLIATI, J.*
* Judge of the Santa Cruz Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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