Filed 7/22/26 Zhao v. Sun 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
QIAN ZHAO, D087438
Plaintiff and Respondent,
v. (Super. Ct. No. CIVSB2409485)
XIAOFAN SUN et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Wilfred J. Schneider, Jr., Judge. Affirmed in part, reversed in part,
and remanded with directions.
Kingswood Law and Jing Wang for Defendants and Appellants.
Skywheel Law and Virginia Liu for Plaintiff and Respondent.
A dispute between Plaintiff Qian Zhao and Defendant Xiaofan Sun over
money Zhao deposited into accounts allegedly controlled by Sun eventually
grew to encompass Sun’s counsel in this action, Jing Wang and Kingswood
Law, PC. As relevant for this appeal, after Wang filed a document and
declaration accusing Zhao of being a criminal fugitive subject to an arrest
warrant in China, Zhao amended his complaint to assert claims against
Wang for false light, libel per se, and declaratory relief. Zhao also accused
Wang of receiving and helping Sun misuse funds allegedly belonging to Zhao.
Wang accused Zhao of initiating a strategic lawsuit against public
participation (SLAPP) against her, so she moved to strike the claims arising
from her protected petition or speech. The trial court denied Wang’s anti-
SLAPP motion.
Based on Wang’s dual role as an advocate and a witness, Zhao
successfully moved to disqualify Wang and Kingswood Law from representing
Sun in this action.
Wang appeals the denial of her anti-SLAPP motion and the
disqualification order.
On the anti-SLAPP motion, Wang identified protected activity—filing
her declaration and a fugitive status notice—that is the basis for some of
Zhao’s claims against her. Although Zhao claims those filings were illegal,
and thus cannot constitute protected activity, he falls short of his burden to
prove criminal conduct as a matter of law because he offers no evidence that
Wang knew those filings were false. Of the claims related to those filings,
Wang challenges only the falsity element for false light and libel per se, so we
limit our discussion accordingly. Zhao has presented evidence that the
statements about him being a criminal fugitive subject to an arrest warrant
are false, including evidence that he has been able to travel freely within and
outside of China since the time Wang claims he escaped from criminal
custody. Wang contends the litigation privilege bars Zhao’s claims as a
matter of law, but the tenuous basis she offers for the filings’ relevancy does
not convince us the privilege applies here. As a result, Zhao has satisfied his
burden to show a probability of success, so we affirm the order denying
Wang’s anti-SLAPP motion.
2
On the disqualification order, because Wang will likely be called as a
witness, which carries risk of confusing the jury, the court did not abuse its
discretion in disqualifying her. But the court abused its discretion by
extending the scope of Wang’s disqualification to all phases of litigation
without explanation. Accordingly, we reverse the order to the extent it
precludes Wang from representing Sun in all pretrial activities and remand
with directions to modify the scope of the disqualification order to provide
that Wang is disqualified from representing Sun at trial and during any
other pretrial activities that the court determines pose a risk of revealing
Wang’s dual role to the jury. In addition, we reverse the disqualification of
Kingswood Law, as Wang’s dual role is not by itself a basis to disqualify the
entire firm. In all other respects, we affirm the disqualification order.
I.
A.
According to the operative complaint, Zhao, a resident of China,
arranged a foreign currency transaction with Sun, a California resident. Sun
allegedly opened an irrevocable trust into which Zhao transferred $3 million.
Sun, however, did not complete the exchange process. Zhao alleges that
Sun—without his knowledge or consent—used money from the trust to
purchase real property that Sun later transferred to herself as the sole
owner. He claims Sun withdrew other monies from the trust without his
knowledge or consent, including transferring $250,524.29 to Wang, who in
turn allegedly used those funds to purchase another property.
After suing Sun, Zhao moved to stop Sun from transferring any more
funds from the trust account. Seemingly in response, on June 5, 2024, Wang
filed a notice of lodging of a document she claimed came from China’s
National Fugitive Information System “regarding the fugitive status” of Zhao
3
in China, which we will refer to as the Fugitive Status Notice. In her
accompanying declaration, Wang attested that she searched for “any evidence
that Qian Zhao had ever been involved in the exchange of [Chinese] currency
for U.S. dollars,” during which time she “came upon” the Fugitive Status
Notice. Wang attested that the document indicates Zhao “was suspected of
committing the crime of exchanging [Chinese currency] for U.S. dollars; that
he had escaped from Criminal Detention in China on May 8, 2024; and that
an Arrest Warrant has been issued.” The translated copy of the Fugitive
Status Notice states that Zhao “is suspected of committing the crime” and
“absconded,” with May 8 listed as the “Date of Escape.” In addition, the
Fugitive Status Notice says one can “Click to View” an arrest warrant.
Zhao later amended his complaint to add Wang and Kingswood Law as
defendants and to assert against them causes of action for quiet title, aiding
and abetting breach of fiduciary duty, conversion, conspiracy to commit
conversion, aiding and abetting conversion, conspiracy to commit fraud,
aiding and abetting fraud, false light, libel per se, declaratory relief, and civil
theft. The claims against Wang for false light, libel per se, and declaratory
relief arose from her filing of the Fugitive Status Notice and the related
declaration.
B.
Wang then filed an anti-SLAPP motion to strike Zhao’s claims that
“arise solely from protected petition or speech in connection with Defendant
Wang’s legal representation of Defendant Xiaofan Sun in this action.”
The trial court denied Wang’s motion because “although she has
demonstrated the filing of her declaration and lodging [of] evidence are
protected conduct at issue under the 12th-14th causes of action, Plaintiff
Zhao has demonstrated a probability of prevailing on those causes of action.”
4
C.
Zhao moved to disqualify Wang and Kingswood Law from representing
Sun in this action. One ground for disqualification Zhao advanced was under
the advocate-witness rule of California Rules of Professional Conduct
Rule 3.7 based on Wang’s testimony being “essential to establish material
issues and key facts in this litigation.”
The trial court granted the motion and disqualified Wang and
Kingswood Law from representing Sun “due to the prejudicial concern of
[Wang] representing Sun while being a likely witness in this litigation
arising from her and her law firm being named Defendants in this litigation.”
II.
A.
Wang challenges the denial of her anti-SLAPP motion. We affirm.
The anti-SLAPP statute seeks to cut short “lawsuits brought primarily
to chill the valid exercise of the constitutional rights of freedom of speech and
petition.” (Code Civ. Proc., § 425.16(a).) It “provides a procedure for weeding
out, at an early stage, meritless claims arising from protected activity.”
(Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)
An anti-SLAPP motion involves a two-step process. “At the first step,
the moving defendant bears the burden of identifying all allegations of
protected activity[] and the claims for relief supported by them.” (Baral,
1 Cal.5th at p. 396.) If the defendant satisfies that burden, then at the
second step “the burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally sufficient and factually
substantiated.” (Ibid.)
We review de novo the denial of an anti-SLAPP motion. (Park v. Board
of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) Even
5
so, “[w]e presume the superior court’s order is correct, and the appellant must
affirmatively show error.” (Billauer v. Escobar-Eck (2023) 88 Cal.App.5th
953, 969.)
1.
At the first step, Wang argues all allegations against her in the
operative complaint “arise, or stem, from the pleadings [she] filed . . . on
behalf of Sun.” Zhao contends Wang failed to perform a necessary “claim-by-
claim analysis” and her litigation-related activity was illegal and thus not
protected under the anti-SLAPP statute. We conclude (a) Wang satisfied her
step-one burden only as to the claims arising from her filing of the Fugitive
Status Notice and her related declaration and (b) Zhao has not convinced us
the rare illegality exception applies here.
a.
At step one, the moving party must establish that the challenged
allegations or claims arise from protected activity, which includes “any
written or oral statement made before a . . . judicial proceeding.”
(§ 425.16(e).) “If a cause of action contains multiple claims and a moving
party fails to identify how the speech or conduct underlying some of those
claims is protected activity, it will not carry its first-step burden as to those
claims.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1011.)
Here, Wang seeks to strike all causes of action against her. Yet the
only specific conduct Wang identifies and discusses in the opening brief as
protected activity under step one is her filing of (1) the Fugitive Status Notice
and (2) her accompanying declaration. Those court filings are protected
activity for anti-SLAPP purposes absent any applicable exception.
(§ 425.16(e).) As the trial court found, the only causes of action that seek to
hold Wang liable for that conduct are the 12th (false light), 13th (libel per se),
6
and 14th (declaratory relief). We agree. Although for the first time in reply
Wang argues the gravamen of the other causes of action against her are also
protected activity because they stem from her legal representation of Sun,
that argument is forfeited as untimely. (Garcia v. McCutchen (1997)
16 Cal.4th 469, 482, fn. 10.) Consequently, Wang has not met her step-one
burden as to any other allegations or causes of action against her aside from
the 12th through 14th.
b.
Zhao contends that even Wang’s filing of the Fugitive Status Notice
and her related declaration “fall outside anti-SLAPP protection” because the
filings were illegal activity. We disagree.
Anti-SLAPP protection “cannot be invoked by a defendant whose
assertedly protected activity is illegal as a matter of law and, for that reason,
not protected by constitutional guarantees of free speech and petition.”
(Flatley v. Mauro (2006) 39 Cal.4th 299, 317.) In this context, “illegal” refers
to criminal conduct. (Aron v. WIB Holdings (2018) 21 Cal.App.5th 1069,
1083.) This illegality exception applies only in “rare cases in which there is
uncontroverted and uncontested evidence that establishes the crime as a
matter of law.” (Cross v. Cooper (2011) 197 Cal.App.4th 357, 386.) “[T]he
plaintiff bears the burden of conclusively proving the illegal conduct.” (Id. at
p. 385.)
According to Zhao, Wang “committed an illegal activity when she filed a
falsified” Fugitive Status Notice. Elsewhere, Zhao claims Wang’s related
declaration “constitutes perjury.” Perjury, however, is a specific intent crime.
(People v. Post (2001) 94 Cal.App.4th 467, 481.) It requires the accused to
possess knowledge of falsity. (Pen. Code, § 118(a).) Despite claiming Wang
“knowingly submitted falsified records,” Zhao identifies no supporting
7
evidence of Wang’s knowledge. As a result, he has not persuaded us the
narrow illegality exception applies here, so we will proceed to step two of the
anti-SLAPP analysis.
Given our resolution of step one, we do not need to reach the parties
other step-one arguments.
2.
At step two, the plaintiff must show a “probability of success.” (Collins
v. Waters (2023) 92 Cal.App.5th 70, 80.) In this “summary-judgment-like
process,” we “do not weigh evidence or resolve conflicting factual claims.”
(Ibid.) Instead, we accept the plaintiff’s evidence as true and assess if the
plaintiff has stated a legally sufficient claim and “made a prima facie
evidentiary showing sufficient to sustain a favorable judgment.” (Ibid.) We
evaluate the defendant’s showing only to determine if it defeats the plaintiff’s
claim as a matter of law. (Ibid.) An anti-SLAPP motion fails so long as the
claims have “even minimal merit.” (Ibid.)
a.
Wang argues the litigation privilege bars Zhao’s claims against her.
Zhao responds that Wang has failed to meet her burden to establish the
litigation privilege protects Wang’s filing of the Fugitive Status Notice and
her related declaration because they “had no logical connection or relation to
the litigation.” (Underlining and some capitalization omitted.) Wang has not
persuaded us the litigation privilege applies here.
The litigation privilege under Civil Code section 47 gives litigants and
witnesses “the utmost freedom of access to the courts without fear of being
harassed subsequently by derivative tort actions.” (Silberg v.
Anderson (1990) 50 Cal.3d 205, 213.) It “promotes the effectiveness of
8
judicial proceedings by encouraging open channels of communication and the
presentation of evidence in judicial proceedings.” (Ibid. [cleaned up].)
This privilege “applies to any communication (1) made in judicial or
quasi-judicial proceedings; (2) by litigants or other participants authorized by
law; (3) to achieve the objects of the litigation; and (4) that have some
connection or logical relation to the action.” (Silberg, 50 Cal.3d at p. 212.)
The last two requirements often collapse into one, as “[t]he requirement that
the communication be in furtherance of the objects of the litigation is, in
essence, simply part of the requirement that the communication be connected
with, or have some logical relation to, the action, i.e., that it not be
extraneous to the action.” (Id. at pp. 219-220.) Thus, “a statement made in a
judicial proceeding is not privileged unless it has some reasonable relevancy
to the subject matter of the action.” (Id. at p. 220.)
At step two of an anti-SLAPP analysis, “a defendant bears the burden
of proving a privilege’s applicability.” (Neurelis, Inc. v. Aquestive
Therapeutics, Inc. (2021) 71 Cal.App.5th 769, 794.)
At issue here is whether Wang’s declaration and the Fugitive Status
Notice had some reasonable relevancy to the action. The trial court
acknowledged that “all implication is the litigation privilege would apply” but
ultimately determined those filings were “irrelevant to this litigation,” so it
did not.
Wang claims she submitted the Fugitive Status Notice “to impeach
Zhao’s credibility regarding his ability to verify English declarations.”
Although she contends, without any supporting legal authority, that
attacking a party’s credibility is “never ‘extraneous’ to a judicial proceeding,”
Wang fails to explain how Zhao’s purported fugitive status in China relates to
his ability to verify English declarations. The relevancy of the Fugitive
9
Status Notice for this purpose seems particularly tenuous given Wang
acknowledges that Zhao had already attested that he “do[es] not speak
English.” Thus, Wang has fallen short of her burden to prove the at-issue
filings were reasonably relevant to the action for the litigation privilege to
apply. And as a result, we do not need to reach the parties’ other arguments
about the litigation privilege.
b.
As to Zhao’s probability of success, besides asserting the litigation
privilege, in her opening brief Wang challenges only the falsity element of the
12th (false light) and 13th (libel per se) causes of action. Her belated claim in
reply that Zhao also “failed to provide clear and convincing evidence of actual
malice” is forfeited as untimely. (Garcia, 16 Cal.4th at p. 482, fn. 10.) On
appeal, because we assume the trial court’s order is correct, “the appellant
must affirmatively show error.” (Billauer, 88 Cal.App.5th at p. 969.)
Accordingly, we consider only if Zhao has met his burden to show the falsity
of the Fugitive Status Notice and Wang’s related declaration for his false
light and libel per se claims to survive the anti-SLAPP motion. We conclude
he has.
Libel is defamation based on written or other fixed representation.
(Civ. Code, §§ 44, 45.) Zhao’s false light claim arises from the same facts as
his libel per se defamation claim. As a result, the false light claim “stands or
falls” with the libel defamation claim. (Eisenberg v. Alameda Newspapers,
Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13.) “A viable defamation claim
requires the existence of a provable falsehood.” (Hawran v. Hixson (2012)
209 Cal.App.4th 256, 289.)
In her declaration, Wang attested that Zhao “escaped from Criminal
Detention in China on May 8, 2024; and that an Arrest Warrant has been
10
issued.” She also submitted the Fugitive Status Notice, which states that
Zhao “is suspected of committing the crime” and “absconded,” with May 8
listed as the “Date of Escape.” And the Fugitive Status Notice identifies an
“Arrest Warrant Level.”
To prove the falsity of these statements, Zhao submitted a certificate of
noncriminal record stating that he “has no criminal records” in China
between early 1987 through June 7, 2024, after his purported May 2024
escape from criminal detention and the issuance of an arrest warrant. Zhao’s
attorney attested, without objection, that a Chinese police officer confirmed
that if Zhao were a fugitive, “his arrest warrant would show up on the
National Fugitive Information System right away” and would alert
authorities to arrest Zhao if he took “any public transportation, railway, [or]
airplane” in China or tried to leave China. Zhao attested and provided some
flight information showing that he (1) took a domestic flight from Beijing to
another city in China on June 8 and (2) flew from Beijing to Thailand on
June 10. Although the exhibits to Zhao’s declaration do not include his
return flight from Thailand, his declaration indicates he was back in Beijing
by June 13. Zhao points to the certificate of his “clean criminal record from
the Chinese authorities” and his ability to “travel internationally without
issue” as “facts that conclusively demonstrate the falsity of Wang’s claims.”
Wang addresses only the certificate of noncriminal record. She
denounces the document as “non-certified, therefore inadmissible,” but that
parenthetical point is arguably forfeited as underdeveloped given the lack of
supporting argument or legal authority. (In re Champion (2014) 58 Cal.4th
965, 986.) Wang also quibbles about the differences between “criminal
record” and “fugitive record” and “convictions” and “warrants” to argue the
certificate fails to disprove Zhao was a fleeing suspect.
11
Even without the certificate of noncriminal record, however, Zhao has
made a prima facie evidentiary showing of falsity. He has presented evidence
about his travels and the consequences were he a fugitive subject to an arrest
warrant sufficient to indicate he is not “truly a fugitive as Wang claims.”
Thus, for purposes of our anti-SLAPP analysis, Zhao has shown the requisite
probability of success.
As a result, we affirm the denial of Wang’s anti-SLAPP motion.
B.
1.
a.
Wang contends the trial court erred in disqualifying her from
representing Sun in this action under the advocate-witness rule. We
disagree.
A trial court may disqualify a lawyer under its inherent power to
control the conduct of those connected with a judicial proceeding “in
furtherance of justice.” (Code Civ. Proc., § 128(a)(5).) “The paramount
concern must be to preserve public trust in the scrupulous administration of
justice and the integrity of the bar.” (People ex rel. Dept. of Corporations v.
SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) As a result,
“[t]he important right to counsel of one’s choice must yield to ethical
considerations that affect the fundamental principles of our judicial process.”
(Ibid.)
Rule 3.7(a) of the California Rules of Professional Conduct, the
advocate-witness rule, precludes a lawyer from acting “as an advocate in a
trial in which the lawyer is likely to be a witness” unless, as relevant here,
the lawyer has obtained the client’s “informed written consent.”
12
The informed-consent exception “is not absolute.” (Doe v. Yim (2020)
55 Cal.App.5th 573, 581.) Even if a client gives informed written consent, the
court may still disqualify a lawyer “who seeks to both testify and serve as an
advocate[] to protect the trier of fact from being misled or the opposing party
from being prejudiced.” (Rules Prof. Conduct, rule 3.7, com. 3, citing Lyle v.
Superior Court (1981) 122 Cal.App.3d 470.) To do so requires “a convincing
demonstration of detriment to the opponent or injury to the integrity of the
judicial process.” (Lyle, at p. 482.)
In deciding whether to disqualify a lawyer under the advocate-witness
rule, a court “must consider: (1) whether counsel’s testimony is, in fact,
genuinely needed; (2) the possibility opposing counsel is using the motion to
disqualify for purely tactical reasons; and (3) the combined effects of the
strong interest parties have in representation by counsel of their choice, and
in avoiding the duplicate expense and time-consuming effort involved in
replacing counsel already familiar with the case.” (Yim, 55 Cal.App.5th at
p. 583 [cleaned up].) “California courts have agreed that one purpose of the
advocate-witness rule is to prevent fact finder confusion regarding whether
an advocate-witness’s statement is to be considered proof or argument.” (Id.
at p. 582.) Another is to avoid the “risk of the jurors’ tying counsel’s
persuasiveness as an advocate to [counsel’s] credibility as a witness.” (Ibid.
[cleaned up].)
We review a disqualification motion for abuse of discretion. (SpeeDee,
20 Cal.4th at p. 1143.) We assess disputed factual issues for substantial
evidence. (Id. at p. 1144.) To the extent no material factual issues are
disputed, we review the trial court’s determination as a question of law.
(Ibid.)
13
Here, the trial court found Wang—“as an individual and agent of
Kingswood” Law, both parties to the action—“would necessarily be a witness
in this case.” The court recognized Sun’s right to be represented by Wang,
counsel of her choice, and that Sun “may incur a burden in obtaining new
counsel.” Even so, the court determined that “the prejudice to the system
outweighs” Sun’s consent because the jury “could be confused” to hear Wang
testify in her own defense and then “turn[] around” and argue on Sun’s behalf
for related allegations. The jury might also “assume [Wang’s] argument is
evidence since she was also a witness subject to testifying about her personal
knowledge.”
Wang claims the trial court “failed to consider and apply the findings
and holdings in Lopez v. Lopez (2022) 81 Cal[.]App[.]5th 412.” We agree with
Zhao that Lopez is distinguishable as to whether the advocate-witness rule
warranted disqualifying Wang, subject to our later discussion about the
order’s scope. Lopez concluded the trial court abused its discretion because it
“failed to apply Rule 3.7’s informed-consent exception” by not (1) even citing
to Rule 3.7 at all, (2) finding disqualification was necessary despite the
client’s written consent, and (3) making any finding of, among other things,
“potential confusion.” (Lopez, 81 Cal.App.5th at pp. 424-425.) In contrast, as
described above, the trial court here engaged in the very analysis the Lopez
trial court failed to undertake.
Wang disclaims any desire to testify and contends any topics on which
she would testify are “not germane” to this action, “notwithstanding the
allegations” in the operative complaint. Substantial evidence supports the
trial court’s contrary finding. Among other things, the operative complaint
accuses Wang and her firm of converting Zhao’s funds, including through
Wang’s alleged receipt of over $250,000 from the at-issue account. Wang, as
14
a named defendant, possesses personal knowledge related to those funds that
would be directly relevant. While Wang may wish to narrow the “core issues
of the case” to “contract terms and currency exchange,” she has not convinced
us the trial court erred in considering all causes of action and related
allegations to find Wang a necessary witness.
Wang next faults the trial court for not “not[ing] any specific prejudice
or harm that Zhao would suffer” if Wang were to testify. But the court was
not required to find any prejudice to Zhao given its finding of potential
confusion to the jury and the resulting “prejudice to the system.” (See
Rule 3.7, com. 3 [“to protect the trier of fact from being misled or the opposing
party from being prejudiced,” italics added].) Although Wang asserts “her
testimony would not be confusing to the jury,” she fails to explain why.
Without supporting argument or legal authority, this bare assertion is
forfeited. (Champion, 58 Cal.4th at p. 986.)
By expressly finding Wang would necessarily be a witness and her
testimony would risk confusing the jury, the court impliedly considered and
rejected the possibility that Zhao brought the motion for purely tactical
reasons.
We thus conclude the court did not abuse its discretion in disqualifying
Wang under the advocate-witness rule.
b.
Wang argues the disqualification order was “excessively overbroad and
unsupported by Rule 3.7” because it precludes her from representing Sun
“through all phases of litigation.” Zhao claims the “categorical
disqualification was necessary to effectuate Rule 3.7(a)’s purpose of avoiding
jury confusion.” Although we affirm the trial court’s decision to disqualify
15
Wang under the advocate-witness rule, we agree the court erred in extending
her disqualification to the entire litigation without explanation.
“Rule 3.7 is limited on its face to trial.” (Lopez, 81 Cal.App.5th at
p. 423.) It prohibits a lawyer from acting as an advocate “in a trial” in which
the lawyer is likely to be a witness. (Rule 3.7(a).) “Nevertheless, to
effectuate the rule’s purpose of avoiding fact finder confusion,” courts have
interpreted it to preclude the advocate-witness from participating in “any
pretrial activities [that] carry the risk of revealing the attorney’s dual role to
the jury,” including pretrial evidentiary hearings and the taking or defending
of depositions. (Yim, 55 Cal.App.5th at p. 583 [cleaned up].) Lopez held it
was an abuse of discretion to use the advocate-witness rule to categorically
disqualify an attorney from all phases of the litigation, “including behind-the-
scenes activities unlikely to pose any risk of fact finder confusion,” without
finding how such an extension would further the advocate-witness rule’s
purpose. (Lopez, at pp. 425-426.)
In this respect, Lopez bears a striking resemblance to the case before
us. The trial court appears to have disqualified Wang from representing Sun
in all phases of the litigation. But the court did not explain why the
advocate-witness rule warranted such broad disqualification. Extending
Wang’s disqualification to all pretrial activities without explanation
constitutes an abuse of discretion.
Accordingly, we reverse in part the trial court’s disqualification order
and remand with directions as specified in the disposition below.
2.
Zhao contends the trial court “properly disqualified Wang and
Kingswood Law from representing Sun under the advocate-witness rule.”
(Italics added.) Wang counters that disqualifying Kingswood Law was
16
improper “absent a showing that the conflict permeates the entire firm.” We
discern no basis for extending the disqualification to the entire firm.
The trial court disqualified both Wang and Kingswood Law based on
Wang’s dual role as an advocate and a witness. But Rule 3.7 does not by
itself justify vicariously disqualifying all other lawyers at the advocate-
witness’s law firm. (Wu v. O’Gara Coach Co., LLC (2019) 38 Cal.App.5th
1069, 1084.) To the contrary, the advocate-witness rule expressly permits a
lawyer to serve as an advocate “in a trial in which another lawyer in the
lawyer’s firm is likely to be called as a witness unless precluded from doing so
by rule 1.7 or rule 1.9.” (Rule 3.7(b).) Rules 1.7 and 1.9 address conflicts of
interest with current and former clients, which were not found here. As a
result, the order offers no reason for disqualifying Kingswood Law. We
therefore reverse that aspect of the disqualification order.
III.
We affirm the denial of Wang’s anti-SLAPP motion.
As for the disqualification order, we (1) reverse the trial court’s order in
full as to Kingswood Law and partially insofar as it disqualifies Wang from
representing Sun in all pretrial activities and (2) remand with directions for
the trial court to modify the scope of the disqualification order to provide that
Wang is disqualified from representing Sun only at trial and during any
other pretrial activities that the court determines pose a risk of revealing
Wang’s dual role to the jury. We affirm the disqualification order in all other
respects.
17
The parties shall bear their own costs on appeal. (Cal. Rules of Court,
rule 8.278(a).)
CASTILLO, J.
WE CONCUR:
DO, Acting P. J.
BUCHANAN, J.
18