NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

C.M., mother of the minor, appeals from the juvenile court’s order terminating her parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395.)[1] Mother contends the court and the San Joaquin County Human Services Agency (Agency) failed to comply with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). Finding any error was harmless, we will affirm the juvenile court’s judgment.

BACKGROUND

Because mother’s sole claim challenges compliance with the ICWA, we limit the background summary to ICWA related facts and procedure unless otherwise relevant to the issue on appeal.

The minor was removed from mother’s sole custody after the Agency filed a dependency petition pursuant to section 300, subdivisions (b)(1), (g) and (j). Mother informed the Agency that T.B. was the minor’s father because he was with mother when the minor was born and he signed the minor’s birth certificate. However, mother later reported that T.B. was not the minor’s biological father. Instead, the biological father was a man named Jonathan, with whom she had had a “brief encounter” when she lived in Mexico. Mother did not know Jonathan’s last name, but she stated he lived in Mexico and had never been in the minor’s life. The juvenile court ordered the minor detained and declared T.B. to be the minor’s biological father.

Mother informed the Agency that there was no known Indian ancestry on her side of the family. She completed an ICWA-010A form to that effect. The maternal grandmother and the maternal aunt each completed ICWA-020 forms indicating they had no known Indian ancestry. Mother did not say whether T.B. had Indian heritage on his side of the family. The Agency’s initial attempts to contact T.B. were unsuccessful. Mother had significant child welfare history, including the eventual adoption of her two older children due to mother’s failure to complete services, and the removal of her two younger children who were in the custody of their father, T.B.

The court sustained the allegations in the petition, as amended in court, and adjudged the minor a dependent of the juvenile court.

The January 2020 disposition report stated there was no reason to believe the minor was an Indian child within the meaning of the ICWA, noting mother, the maternal aunt, and the maternal grandmother all indicated they had no known Indian ancestry. The report also stated that after mother had her encounter with Jonathan in Mexico, she returned to California, where she met T.B. and moved in with him right away. When she gave birth to the minor, T.B. took on the role of father in the minor’s life. Mother had two more children with T.B., but she eventually separated from him due to ongoing domestic violence between them. T.B. had not come forward to express interest in placement of the minor, nor had he appeared at any of the court proceedings, despite having been provided adequate notice.

The July 2020 status review report confirmed that mother had named Jonathan as the minor’s biological father and stated he resided in Mexico; however, Jonathan’s whereabouts were unknown to the Agency. The report reiterated the Agency’s previous statement that there was no reason to believe the minor was an Indian child within the meaning of the ICWA. The November 2020 and April 2021 status review reports repeated the same ICWA information previously provided.

T.B. made his first court appearance at the November 19, 2020 dependent review hearing. The court asked T.B. whether he had any Indian heritage, and T.B. responded, “No.”

The court terminated mother’s reunification services and set the matter for a section 366.26 hearing. The Agency’s section 366.26 report and its subsequent status review report reiterated its previous statement that the ICWA did not apply and recommended that the court terminate parental rights and free the minor for adoption. At the section 366.26 hearing, after hearing mother’s testimony, the court terminated parental rights.

DISCUSSION

Mother contends the Agency and the juvenile court failed to satisfy their inquiry obligations under the ICWA, and she asks that we remand the matter for additional ICWA proceedings. We decline to do so.

The juvenile court and the Agency have “an affirmative and continuing duty to inquire” whether a child is, or may be, an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); see In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) The ICWA defines an “ ‘Indian child’ ” as a child who “is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); § 224.1, subd. (a); In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).)

“[S]ection 224.2 creates three distinct duties regarding [the] ICWA in dependency proceedings. First, from the Agency’s initial contact with a minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘reason to believe’ the child is an Indian child, then the Agency ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’ (Id., subd. (e) . . . .) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.” (D.S., supra, 46 Cal.App.5th at p. 1052, italics omitted.)

Once a court or social worker has a reason to believe a child is an Indian child, section 224.2, subdivision (e) explains the “further inquiry regarding the possible Indian status of the child” includes, but is not limited to: (1) “nterviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.3”; (2) “[c]ontacting the Bureau of Indian Affairs [(BIA)] and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in”; and (3) “[c]ontacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child’s membership, citizenship status, or eligibility.” (§ 224.2, subd. (e)(2)(A)-(C).)

“The juvenile court may alternatively make a finding that [the] ICWA does not apply because the Agency’s further inquiry and due diligence was ‘proper and adequate’ but no ‘reason to know’ whether the child is an Indian child was discovered. (§ 224.2, subds. (i)(2), (g).) Even if the court makes this finding, the Agency and the court have a continuing duty under [the] ICWA, and the court ‘shall reverse its determination if it subsequently receives information providing reason to believe that the child is an Indian child and order the social worker or probation officer to conduct further inquiry.’ (§ 224.2, subd. (i)(2).)”[i] (D.S., supra, 46 Cal.App.5th at p. 1050, italics omitted.)

We apply a substantial evidence review to the juvenile court’s ICWA findings. (D.S., supra, 46 Cal.App.5th at p. 1051.) “Deficiencies in [the] ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child. [Citations.]” (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.)

Mother, the maternal aunt, and the maternal grandmother all indicated they had no known Indian ancestry. As for the minor’s biological father, mother informed the Agency that she had a brief encounter with a man named Jonathan, whose last name she did not know, when she was residing in Mexico. Mother left Mexico five months later, prior to the minor’s birth. Mother claims the Agency failed to search for Jonathan and failed to inquire of Jonathan’s extended family regarding possible Indian heritage despite that mother identified him as the minor’s biological father. However, mother never provided the Agency with Jonathan’s last name and the only other information told to the Agency was that he lived in Mexico when mother became pregnant with the minor. Similarly, there was no information provided to, known to, or available to the Agency regarding the identification or location of Jonathan’s relatives. Despite mother’s claim that the Agency failed to do its due diligence in searching for Jonathan and his relatives, the Agency was not required to “ ‘cast about’ for information or pursue unproductive investigative leads.” (D.S., supra, 46 Cal.App.5th at p. 1053.) “There is no need for further inquiry if no one has offered information that would give the court or [the Agency] reason to believe that a child might be an Indian child.” (In re A.M. (2020) 47 Cal.App.5th 303, 323.) “This includes circumstances where parents ‘fail[ ] to provide any information requiring followup’ [citations] . . . .” (Ibid.) The information mother provided was insufficient to require further inquiry. As a consequence, the Agency had no investigative leads regarding Jonathan other than the fact that he, at one point, lived in Mexico, and mother has not identified any such lead in her appeal. There was no reason to believe the minor was an Indian child vis-à-vis Jonathan. Therefore, the Agency had complied with its ICWA duties with respect to Jonathan.

Mother concedes T.B. was not the minor’s biological father but argues T.B. was the minor’s “legal father” and the Agency therefore failed its duty to inquire of T.B.’s extended family regarding possible Indian ancestry. The ICWA defines a “ ‘parent’ ” as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child . . . . It does not include the unwed father where paternity has not been acknowledged or established.” (25 U.S.C. § 1903(9); § 224.1, subd. (c).) Our review of the record reveals nothing to demonstrate either that mother and T.B. were married or that T.B. legally adopted the minor. Despite the court’s initial finding that T.B. was the biological father, mother concedes and the record makes plain, that T.B. was neither the biological father of the minor nor had his paternity been acknowledged or established. As previously noted, an “Indian child” for purposes of the ICWA is a child who is either a member of an Indian tribe or is eligible for membership in an Indian tribe “ ‘and is the biological child of a member of an Indian tribe . . . .’ (25 U.S.C. § 1903(4); accord, [ ] § 224.1, subd. (a)[ ].)” (D.S., supra, 46 Cal.App.5th at p. 1048, italics added.) With respect to T.B., the minor was neither. Thus, there was no reason to inquire of T.B.’s extended family.

Finally, mother claims the court failed to make any ICWA finding before proceeding with the section 366.26 hearing and terminating parental rights. “If the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that the [ICWA] (25 U.S.C. Sec. 1901 et seq.) does not apply to the proceedings, subject to reversal based on sufficiency of the evidence.” (§ 224.2, subd. (i)(2), italics added.) Several appellate courts, including this one, have held that the juvenile court is not required to make an express finding that the ICWA does not apply. (In re Asia L. (2003) 107 Cal.App.4th 498, 506; In re Levi U. (2000) 78 Cal.App.4th 191, 199, superseded by statute on other grounds as stated in In re B.E. (2020) 46 Cal.App.5th 932, 940.) It is only necessary that the record reflect that the court considered and determined the issue. The ICWA finding may be express or implied. (In re Asia L., supra, at p. 506; In re Levi U., supra, at p. 199.)

Our colleagues in the Fourth District Court of Appeal disagreed, suggesting instead that “juvenile courts should make an explicit rather than implicit determination as to the applicability of the ICWA” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413, citing In re Jennifer A. (2002) 103 Cal.App.4th 692, 705), and affirming that “juvenile courts should abide by their obligation to determine in the first instance whether the ICWA applies.” (In re Antoinette S., supra, at p. 1413.) However, the In re Antoinette S. court found that where the juvenile court made neither an explicit nor an implicit ICWA finding, the error was nevertheless harmless where there was clear evidence in the BIA’s responses to the ICWA notices that the ICWA did not apply. (In re Antoinette S., at pp. 1413-1414.)

Our review of the record here reveals that while the juvenile court inquired of T.B. whether he had any known Indian ancestry, the court apparently did not otherwise refer to the ICWA or make an express ICWA related finding at any point throughout the dependency proceedings. What the court did do, however, was confirm it read and considered the Agency’s section 366.26 report, which included information that no one on the maternal side of the family had any known Indian heritage. Given the dearth of information available regarding the minor’s biological father, Jonathan, making it nearly impossible to identify or locate him or his extended family, the report demonstrated that the only conclusion to be drawn was that there was no reason to believe the minor was an Indian child and that the ICWA did not apply. Therefore, any error in omitting an express ICWA finding was harmless.

DISPOSITION

The juvenile court’s order is affirmed.

KRAUSE , J.

We concur:

HULL , Acting P. J.

MAURO , J.

[1] Undesignated statutory references are to the Welfare and Institutions Code.

NOT TO BE PUBLISHED IN THE 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 FOUR

APPEAL from a judgment and order of the Superior Court of Los Angeles County, Gloria White-Brown, Judge. Affirmed.

Flyer and Flyer, David R. Flyer and Raquel Flyer Dachner for Defendants and Appellants David A. Butterfield and Louise Fundenberg.

Christopher Grant, in pro. per., for Defendant and Appellant Christopher Grant.

Abrams Garfinkel Margolis & Bergson, Kenneth F. Spencer, Joshua M. Webster and Michael J. Weiss for Plaintiff and Respondent.

These consolidated appeals concern two competing lawsuits brought in the name of a nonprofit charitable organization, Disability Services Corporation (DSC). The cases arise from a struggle between two rival factions of DSC’s board of directors (board) to control the corporation. In each of the two actions, one rival faction engaged separate counsel to file suit against the other rival faction for malfeasance in the management of DSC’s assets. Neither action is a shareholder derivative suit; in both DSC sues one board or the other in its individual corporate capacity.

The first case is DSC v. Christopher Grant, et al. (L.A.S.C. case No. 18PSCV00187, hereafter Case No. 18). It was filed on DSC’s behalf by the law firm Flyer and Flyer, and attorney David Flyer (collectively Flyer or Flyer’s firm). The complaint alleged that Christopher Grant and three other members of DSC’s board (the Grant board) violated DSC’s bylaws by, among other things, improperly reconstituting DSC’s board and creating false documents in order to misuse the entity’s offices and charitable funds. The trial court granted summary judgment in favor of DSC and against Grant, who was in pro. per. and was the only defendant to answer the complaint. Grant now appeals in pro. per. from the summary judgment in Case No. 18.

The second case, DSC v. David Butterfield, et al. (L.A.S.C. case No. 19PSCV00064, hereafter Case No. 19), was filed on DSC’s behalf by attorney Michael Weiss and his firm, Abrams Garfinkel Margolis & Bergson. The complaint in Case No. 19 alleged that David Butterfield (then-president of DSC’s board) engaged in the unauthorized use of DSC funds to purchase personal items and to hire and pay himself, his friends, and his family members. As individual defendants in this case, Butterfield and another board member, Louise Fundenberg, were represented by Flyer. As noted, Flyer was also counsel for DSC in Case No. 18 against the Grant board. Because of this simultaneous representation, the trial court granted a motion to disqualify Flyer from representing Butterfield and Fundenberg in Case No. 19. Butterfield and Fundenberg appeal from this disqualification ruling in Case No. 19.

For reasons explained below, we affirm both of the trial court’s rulings.

FACTUAL AND PROCEDURAL BACKGROUND

DSC is a non-profit organization formed in 1960 principally to serve the needs of children with learning disabilities. In October 2017, Butterfield was appointed president of DSC’s board. At that time, DSC’s bank accounts contained at least $350,000 from a charitable donation made to the organization.

Case No. 18: DSC v. the Grant Board

On December 17, 2018, Flyer filed Case No. 18 on behalf of DSC against the Grant board. The case was authorized on DCS’s behalf by Butterfield. Five causes of action were alleged: fraud, breach of fiduciary duty, conversion, money had and received, and commercial unlawful detainer. The complaint alleged that in early November 2018, in violation of DSC’s bylaws, the Grant board conducted a secret meeting without notifying or providing access to Butterfield and two other members of DSC’s eight-member board.^[1]

It was further alleged that the Grant board “created phony corporate documents which purportedly authorized them to perform official duties on behalf of [DSC].” After filing the documents with the California Secretary of State, the Grant board allegedly “took over [DSC’s] offices,” withdrew approximately $178,000 from DSC’s bank accounts (which they diverted to non-charitable purposes) and refused DSC’s demand to return the funds.

Case No. 19: DSC v. Butterfield and Fundenberg

On January 18, 2019, represented by attorney Michael Weiss and his firm, Abrams Garfinkel Margolis & Bergson law firm, DSC filed Case No. 19 against Butterfield and Fundenberg.^[2] The case was authorized on DSC’s behalf by the Grant board. As defendants in this lawsuit, Butterfield and Fundenberg were represented by Flyer (who was also representing DSC as the plaintiff in Case No. 18 against the Grant board).

As pertinent here, the complaint alleged claims for breach of fiduciary duty, conversion, and common counts for money had and received and accounting.^[3] DSC alleged that, after he was appointed board president, Butterfield engaged in misconduct in violation of DSC’s bylaws by, among other things, using DSC funds to buy a car and pay unauthorized tax-free wages to himself, his friends and his family members, and using DSC credit cards to pay for personal items and services. The complaint also alleged that Butterfield wrongfully denied the Grant board access to DSC business records and likely embezzled DSC’s funds.

DSC claimed that, on or about November 4, 2018, the Grant board became aware of Butterfield’s misdeeds. They called an emergency special board meeting for November 6, 2018 to address Butterfield’s misconduct and, on that date, voted to remove him from DSC’s board. Butterfield was notified of his removal and instructed to return all DSC property.

To prevent Butterfield from engaging in further malfeasance, one member of the Grant board ordered that the locks be changed on DSC’s offices. In addition, the Grant board, concerned that Butterfield retained access to DSC bank accounts, withdrew $177,818.39 from DSC’s accounts. On November 19, 2018, after Butterfield refused to accept his removal, the Grant board filed an amended Statement of Information form with the Secretary of State removing Butterfield as an officer of DSC.

Finally, DSC alleged that after Butterfield’s removal from the DSC board, attorney Flyer, in violation of the Rules of Professional Conduct, rules 1.7 and 1.13, actively assisted Butterfield in engaging in various wrongful acts in an effort to regain control of DSC and the remaining charitable funds. Those acts included the filing of Case No. 18 in DSC’s name against the Grant board. They also included the filing of a fraudulent Statement of Information with the Secretary of State that named Butterfield as DSC’s chief executive officer and that purported to remove the Grant board members from DSC’s board.

Case No. 19: First Motion to Disqualify

Flyer was simultaneously representing: (1) plaintiff DSC in Case No. 18 against the rival Grant board, in which the Grant board was charged with corporate malfeasance, and (2) defendants Butterfield and Fundenberg in Case No. 19, in which Butterfield and Fundenberg were charged with competing acts of corporate malfeasance.

On April 10, 2019, in Case No. 19, DSC filed its initial motion to disqualify (MTD) Flyer from representing Butterfield and Fundenberg as defendants in Case No. 19. In the MTD, DSC argued that “in an act of pure malice and retaliation, and without standing to do so,” Butterfield instructed Flyer to commence Case No. 18 on behalf of DSC against the Grant board. In filing and pursuing Case No. 18, Flyer allegedly also engaged in improper simultaneous representation of DSC as the plaintiff in Case No. 18, and of individual defendants Butterfield and Fundenberg in Case No. 19.

In opposition, Butterfield and Fundenberg argued DSC lacked standing to sue, because the Grant board had no authority to authorize such action. They also asserted that minutes of a January 20, 2019 meeting of DSC’s true board reflected a vote “rescinding” Weiss’s authority to prosecute Case No. 19 on DSC’s behalf. Instead, the board retained Flyer’s firm to represent Butterfield and Fundenberg in that action. Finally, Butterfield and Fundenberg argued that the Weiss declaration submitted in support of the MTD presented no admissible evidence of wrongdoing by Butterfield or Flyer.

On July 17, 2019, the MTD was argued. The court found DSC had failed to present admissible evidence of “adverse, conflicting interests” between DSC on the one hand, and Butterfield and Fundenberg on the other, and denied the motion without prejudice.

Case No. 19: Renewed Motion to Disqualify

On August 28, 2019, DSC filed a second MTD in Case No. 19, largely reiterating its earlier arguments, supported by the declarations of Grant and Weiss. DSC also informed the trial court that, in March 2018, Flyer had previously represented DSC in a federal action.

In opposition to the second MTD, Butterfield and Fundenberg argued: (1) DSC lacked standing to seek Flyer’s disqualification, (2) an attorney could properly represent an entity and its agent where, as here, there was no conflict of interest, and (3) DSC’s board had investigated the matter and determined there was no actual conflict of interest.

On November 5, 2019, at the hearing on the second MTD, the trial court expressed its “belie[f] that there probably [was] a conflict of interest” in Flyer’s simultaneous representation of DSC as plaintiff in Case No. 18, and Butterfield and Fundenberg as defendant’s in Case No. 19. However, the court found again that Grant had failed to submit competent evidence to support a finding that a conflict in fact existed. On its own motion, the court continued the hearing to permit Grant to produce admissible evidence showing the existence of adverse, conflicting interests.

Grant and Weiss submitted supplemental declarations. The declarations were accompanied by “timesheets” that Butterfield and his friends and family members presented to DSC in fall 2018. The declarations were also accompanied by copies of bank statements and approximately 50 checks reflecting payments of over $29,000 made by DSC to these individuals. Many checks contained the designations “payroll” and “hours,” but no tax or other withholdings had been taken from wages paid. DSC also submitted evidence of cash withdrawals Butterfield made for personal use. Finally, DSC submitted a copy of a March 2018 agreement by which DSC had retained Flyer to represent it in a prior action in federal court.

The trial court found this evidence sufficient to support the allegation that Butterfield had “hired and paid employees without the Board’s authorization in violation of DSC’s bylaws.” This evidence was “significant because it demonstrate[d] that a conflict between DSC and its former president, . . . Butterfield, ha[d] arisen.” As such, the court concluded that Flyer was disqualified from representing Butterfield and Fundenberg in Case No. 19, and granted the MTD.^[4]

Butterfield and Fundenberg appeal from the order disqualifying Flyer from representing them.^[5] In their opening brief, they state that the parties agreed to stay Case No. 19 pending the outcome of this appeal.

Case No. 18—Motion for Summary Judgment

In April 2020, in Case No. 18, DSC (represented by Flyer) filed a “Motion for Summary Judgment,” supported by six declarations from DSC board members, and a declaration from an attorney in Flyer’s firm. DSC also filed a “Separate Statement in Support of [the motion for summary judgment],” and a Request for Judicial Notice.

DSC argued that undisputed evidence established that the Grant board had breached its fiduciary duties, committed conversion, and improperly retained funds intended for DSC’s benefit. The gist of DSC’s motion was that the Grant board members breached their fiduciary duties by failing to provide notice of or access to the November 6, 2018 special meeting to Butterfield and Fundenberg and two other board members, as required by DSC’s bylaws and California law. As a result, Butterfield and Fundenberg argued that all actions taken by Grant board at and after the November 6, 2018 meeting were unauthorized and invalid. Those invalid actions included the Grant board’s creation of improper authorization documents filed with the Secretary of State, withdrawal of approximately $178,000 from DSC’s bank accounts, assumption of control over DSC’s offices for three months, conversion of DSC property contained therein, and unauthorized retention of and payments to Weiss’s firm.

Grant, the only defendant in Case No. 18 to answer the complaint, opposed the summary judgment motion. On April 28, 2020, Grant (who has been self-represented throughout this litigation), filed a document entitled “Objection to [DSC’s] Motion for Summary Judgment” (Objection). Grant did not submit a separate statement.

The hearing on the motion for summary judgment began on June 25, 2020. The trial court observed that Grant’s Objection did not comply with the requirements of the California Rules of Court, rule 3.1354(b) regarding objections to evidence. Nevertheless, on its own motion, the court agreed to construe Grant’s Objection as his points and authorities in opposition to the motion for summary judgment. On its own motion, the court also continued the hearing to August 12, 2020 and directed Grant to file a separate statement by July 10, 2020.

On July 9, 2020, Grant filed a separate statement that disputed and or objected to the majority of DSC’s 49 purportedly undisputed facts.^[6] However, Grant presented no additional disputed facts. Grant also submitted a 169-page “Response” to DSC’s motion for summary judgment which included declarations from each Grant board member and 26 exhibits. On July 17, 2020, DSC filed its supplemental reply and objections to Grant’s declaration.

The summary judgment motion was argued on August 12, 2020. The trial court considered Grant’s Objection and separate statement. However, the court declined to consider Grant’s voluminous July 9, 2020 “Response” because it “exceed[ed] the scope of the court’s June 25, 2020 minute order.” Addressing the merits, the trial court found that DSC satisfied its initial burden of proof, but Grant failed to present evidence demonstrating the existence of a material factual dispute. The motion was granted, and judgment subsequently entered in favor of DSC for $14,016.35. Grant timely appealed. We granted Butterfield’s request to consolidate the two appeals.

DISCUSSION

1. Case No. 19: The Motion to Disqualify

Butterfield and Fundenberg argue that the trial court erred when it disqualified Flyer from representing them in Case No. 19. They maintain that (1) DCS lacked standing to have Flyer disqualified, because the Grant board lacked authority to initiate such action in Case No. 19 on DSC’s behalf, (2) in light of the court’s grant of summary judgment in Case No. 18, the doctrine of collateral estoppel requires reversal of the order disqualifying Flyer in Case No. 19, and (3) the evidence and law do not support Flyer’s disqualification in Case No. 19. We reject these contentions.

The Standard of Review

Broadly speaking, a trial court’s decision on a disqualification motion is reviewed for abuse of discretion. (Doe v. Yim (2020) 55 Cal.App.5th 573, 581.) Under this standard, we review the court’s legal conclusions de novo, and review its factual findings for the existence of substantial supporting evidence. (Ibid.) If substantial evidence supports the trial court’s factual findings, we review its conclusions based on those findings for abuse of discretion. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712 (Haraguchi); Bridgepoint Construction Services, Inc. v. Newton (2018) 26 Cal.App.5th 966, 969 (Bridgepoint).)

1. Standing to Seek Flyer’s Disqualification

We reject Butterfield and Fundenberg’s argument that the Grant board members were no longer “true” members of DSC’s board, and that therefore DCS had no standing in Case No. 19 to bring a motion in DSC’s name to disqualify Flyer. “A complaining party who files a motion to disqualify is required to have standing.” (Blue Water Sunset, LLC v. Markowitz (2011) 192 Cal.App.4th 477, 485 (Blue Water).) Standing may be conferred if the complaining party has a past or present attorney-client relationship with the attorney targeted by the motion. (Id. at p. 487 [“f an attorney simultaneously represents two clients with adverse interests, automatic disqualification is the rule”].)

2. [i]Collateral Estoppel

In Case No. 18, the trial court granted summary judgment on DSC’s complaint against the Grant board. The court found, in substance, that Grant raised no triable issue of fact to dispute that the Grant board’s purported take-over of DCS and later actions, as alleged in the complaint, violated DCS’s bylaws and the California Corporations Code. In our discussion of Grant’s appeal from the ruling, in part II of our opinion, we affirm the ruling.

However, we disagree with Butterfield and Fundenberg that under the doctrine of collateral estoppel, the summary judgment in Case No. 18 requires reversal of the trial court’s disqualification ruling in Case No. 19. The doctrine of collateral estoppel operates to prevent the relitigation of issues previously adjudicated in another action. (In re Marriage of Furie (2017) 16 Cal.App.5th 816, 827–828.) The test for the application of the doctrine requires, among other things, that the issue be identical to the one sought to be relitigated, which was necessarily decided in a prior action. (Ibid.; Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.) At the time the trial court ordered Flyer disqualified, both Case Nos. 18 and 19 were pending. The issue decided by the motion to disqualify in Case No. 19 did not address the merits of the two lawsuits and the question who had corporate control, but whether in the two competing lawsuits yet to be litigated, Flyer was simultaneously representing multiple clients who had adverse interests. That was not the issue decided by the grant of summary judgment. Of course, DSC’s summary judgment motion had not yet been filed, let alone ruled on. Moreover, the later grant of summary judgment against Grant in Case No. 18 did not obviate Flyer’s simultaneous representation of clients with adverse interests in Case Nos. 18 and 19, before the summary judgment.^[7]

D. The Disqualification Ruling

As we have noted, “it is a violation of the duty of loyalty for the attorney to assume a position adverse or antagonistic to his or her client without the client’s free and intelligent consent given after full knowledge of all the facts and circumstances. [Citation.]” (State Farm Mutual Automobile Ins. Co. v. Federal Ins. Co. (1999) 72 Cal.App.4th 1422, 1431.)

In Forrest v. Baeza (1997) 58 Cal.App.4th 65, the court observed that, in contrast to cases involving successive representation of clients with potentially adverse interests, “‘[t]he primary value at stake in cases of simultaneous or dual representation is the attorney’s duty—and the client’s legitimate expectation—of loyalty, rather than confidentiality.’ (Flatt v. Superior Court [(1994)] 9 Cal.4th [275] at p. 284.) ‘“[R]epresentation adverse to a present client must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each of his clients.’” [Citation.] [¶] ‘n all but a few instances, the rule of disqualification in simultaneous representation cases is a [i]per se or “automatic” one. [Citations.] [¶] . . . The strict proscription against dual representation of clients with adverse interests thus derives from a concern with protecting the integrity of the attorney-client relationship rather than from concerns with the risk of specific acts of disloyalty or diminution of the quality of the attorney’s representation.” (Forrest, supra, at p. 74.)

Here, in support of its request for Flyer’s disqualification, DSC presented evidence that its board lacked a signed retainer with Flyer’s firm. DSC also presented copies of 50 checks signed by Butterfield between July 2018 and 2019, evidencing tax-free salary and wage payments of over $29,000 to Butterfield and his family members and friends. It also presented evidence that Butterfield hired and paid these individuals without authorization and in violation of DSC’s bylaws.

The court found this that this evidence “demonstrate[d] that a conflict between DSC and its former president, . . . Butterfield, ha[d] arisen. As such, [Flyer] [was] not [permitted to] represent both DSC and . . . Butterfield.”^[8] The trial court rejected Butterfield’s representation that he was an employee of DSC in January 2019, that another board member had approved one individual’s employment, and two others had worked as independent contractors.

The trial court’s factual findings are supported by substantial evidence (the evidence submitted by DSC), and buttressed by the court’s credibility findings (rejecting Butterfield’s evidence). Therefore, we review the court’s disqualification of Flyer premised on those findings for abuse of discretion. (See Haraguchi, supra, 43 Cal.4th at pp. 711–712; Bridgepoint, supra, 26 Cal.App.5th at p. 969.)

On the facts as found by the court, the court reasonably concluded that Flyer was disqualified from representing both DSC as plaintiff in Case No. 18 and individual defendants Butterfield and Fundenberg being sued by DSC in Case No. 19. In short, Flyer was simultaneously representing clients with adverse interests: in Case No. 18, he represented DSC in its action against the Grant board; in Case No. 19, he represented Butterfield and Fundenberg, rivals of the Grant board, in DCS’s action against them. Where, as here, a member of a company’s board is accused of wrongdoing, the same attorney may not represent both the corporation and the accused board member, nor may the company’s directors waive the inherent conflict of interest. (See Blue Water, supra, 192 Cal.App.4th at pp. 486–487 [the same law firm may not represent a company and company insiders alleged to have committed fraud whose interests are adverse and conflicting]; Gong v. RFG Oil, Inc. (2008) 166 Cal.App.4th 209, 214–215.) The trial court did not abuse its discretion in disqualifying Flyer from representing Butterfield and Fundenberg as defendants in Case No. 19, based on the conflict of interest created by his simultaneous representation of DSC as plaintiff in Case No. 18.^[9]

2. Case No. 18: Summary Judgment

1. Standard of Review and Controlling Law

The fundamental purpose of a summary judgment motion is to provide the trial court a mechanism to cut through the parties’ pleadings and determine whether material factual issues exist such that a trial is necessary to resolve the dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; Yanez v. Plummer (2013) 221 Cal.App.4th 180, 186.)

To that end, a basic requirement is that the papers supporting a motion for summary judgment “shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.” (Code Civ. Proc., § 437c, subd. (b)(1).) Each material fact in the separate statement must be accompanied by reference to the evidence supporting that fact. (Ibid.) “The separate statement is not merely a technical requirement, it is an indispensable part of the summary judgment or adjudication process,” and “failure to comply with this requirement sufficient grounds to grant the motion.” (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.)

Similarly, a party opposing a motion for summary judgment must file its own “separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed[,] . . . followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civil Proc., § 437c, subd. (b)(3), italics added; see also Cal. Rules of Court, rule 3.1350(e)(2).) “‘We review the ruling on a motion for summary judgment de novo, applying the same standard as the trial court.’ [Citation.]” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76.)

Grant’s Separate Statement

Grant maintains the court erred not considering his “July 9th responding Separate Statement [because it] exceeded the scope of the court’s June 25, 2020 minute order.” Grant misstates the trial court’s ruling. The trial court did consider the separate statement Grant submitted on July 9. What the court declined to consider was Grant’s belated 169-page “Response” to DSC’s motion for summary judgment, which included declarations from each Grant board member and 26 exhibits.

In any event, the trial court did not err in refusing to consider Grant’s “Response.” The court exercised its discretion to construe Grant’s inappropriate “Objection to [DSC’s] Motion for Summary Judgement,” as what he should have filed, an “opposing memorandum of points and authorities.” Further, after admonishing Grant that, as a self-represented party, he was held to the same standard as an attorney, the court also continued the hearing to give him additional time to file a compliant separate statement. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [Pro. per. litigants are held to the same standards as attorneys]). The court’s June 25 order did not afford Grant carte blanche to submit additional briefing or a voluminous mass of undifferentiated evidence, and the court was not required to consider it. (Cf., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [observing that summary judgment motion was plagued by “reply papers [that] included a 297-page reply separate statement,” which is not provided for by statute].)

2. Summary Judgment

The trial court found DSC satisfied its burden and was entitled to summary judgment based on the following.

It is undisputed that DSC is governed by bylaws. Section 11 of DSC’s bylaws requires that:

“b) Special meetings of the Board shall be held upon seven (7) days’ notice by first-class mail or forty-eight (48) hours’ notice delivered personally or by telephone or by email. . . . Such notices shall be addressed to each Director at his or her address . . . . Notice shall be given of any . . . special meeting to Directors absent from the original meeting. . . .

“c) Notice of meetings shall specify the place, day, and hour of the meeting. The purpose of any Board meeting shall be specified in the notice.” (Italics added.)

On November 4, 2018, DSC’s eight-member board was comprised of the four Grant board members, Butterfield, Fundenberg, Durand and Smith (who resigned). The evidence showed that Durand been excused from attending some meetings but remained qualified to vote. Fundenberg had been ill and unable to attend board meetings the two preceding months. However, she participated in the November 4, 2018 board meeting and resumed her position as treasurer.

Grant concedes that he, like the other members of DSC’s board on November 4, 2018, owed fiduciary duties to DSC. On November 6, 2018, the four Grant board members conducted a special meeting. In violation of DSC’s bylaws, Durand, Butterfield and Fundenberg were not provided notice of the November 6, 2018 meeting, and Butterfield and Fundenberg were denied access to that meeting. Corporations Code section 307, subdivision (a)(2) mandates that a corporation’s “bylaws may not dispense with notice of a special meeting.” (Italics added.)

On November 8, 2018, the Grant board members withdrew substantial funds from DSC’s accounts and created a new Statement of Information, which they filed with the Secretary of State and used to open new bank accounts on behalf of DSC. The Grant board members assumed control of DSC’s offices and used the entity’s funds to change locks, purchase computers and other property, and to retain Weiss’s firm to represent DSC in a case against Butterfield. Grant concedes that the Grant board members filed documents with the secretary of state after the meeting on November 6, 2018 on behalf of DSC and that they removed equipment from DSC’s offices. The record of the summary judgment motion contains no indication that the Grant board members were authorized to file a new Statement of Information on behalf of DSC, or to retain Weiss’s firm.

California law provides that “[s]pecial meetings of the board shall be held upon four days’ notice by mail or 48 hours’ notice delivered personally or by telephone . . . . The articles or bylaws may not dispense with notice of a special meeting.” (Corp. Code, § 307, subd. (a)(2); see also Grant v. Hartman Ranch Co. (1961) 193 Cal.App.2d 497, 501 [holding that defective notice rendered board meeting invalid]; Thompson v. Williams (1888) 76 Cal. 153, 154–155 [“Each director must have special notice of the regular meetings of the board of directors of the corporation defendant,” and actions taken in the absence of such notice and nonattending board members are “without authority and . . . a nullity”].) DSC concedes that the Grant board members failed to notify the remaining board members. As a result, the court found that actions taken by the Grant board members taken at and after the November 6, 2018 meeting on DSC’s behalf were invalid.

DSC also presented undisputed evidence it suffered damages of $6,600 (three months’ rent), about $5,900 in DSC funds improperly used to pay Weiss, and $1,500 for office equipment the Grant board members never returned. On this record, the trial court found DSC met its initial burden of proof.

The court rejected Grant’s contention that the board had only six members on November 6, 2018 (the Grant board members, Smith and Butterfield), because Fundenberg and Durand were no longer members of DSC’s board. It found the evidence showed Fundenberg had indicated an intention to resign from the board by that date, not that she actually had done so. Grant presented no evidence that Durand was no longer a board member.

The court also rejected Grant’s assertion that all board members were notified of the November 6, 2018 meeting, because the document on which he relied was neither signed nor authenticated. Further, the court observed that even if this evidence was admitted, the document would not constitute proper notice to Durand, who attended the November 4, 2018 meeting, and it was undisputed that Butterfield at least had been denied access to the November 6, 2018 telephonic meeting.

Grant does not challenge the trial court’s findings that the Grant board members failed to provide notice to other board members, nor that they were required to do so. Instead, without citation to supporting authority, Grant simply asserts the bylaws do not require the provision of notice to “a Board member whose actions are subject to Executive Committee or Board review and/or action, [nor do they] afford[] the opportunity to participate in meetings at which their actions are considered.” However, DSC’s bylaws and California law provide otherwise. (See Corp. Code, § 307, subd. (a)(2).) Because notice to all board members of the November 6, 2018 special meeting was required, but concededly not provided, actions taken by the Grant board members at and after the November 6, 2018 meeting were invalid. Summary judgment was appropriate.

//

//

//

//

//

//

DISPOSITION

The order in DSC v. Christopher Grant, et al. (L.A.S.C. case No. 18PSCV00187, granting the motion to disqualify Flyer from representing DSC’s board members Butterfield and Fundenberg is affirmed. The order in DSC v. David Butterfield, et al. (L.A.S.C. case No. 19PSCV00064) granting summary judgment is affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

COLLINS, J.

CURREY J.

[1] Paul Smith, the eighth board member, resigned on November 6, 2018 and is not a party in either action.

[2] Fundenberg was added by amendment as a Doe defendant, along with California’s then Attorney General, Xavier Becerra. The Attorney General has not been involved in the litigation.

[3] Claims for fraud and declaratory relief were dismissed.

[4] The trial court’s order states Flyer was disqualified from representing DSC. However, at the hearing on the second MTD, the court clarified that Flyer was disqualified from representing defendants Butterfield and Fundenberg. The court, which had not yet ruled on the motion for summary judgment, left for another day the determination whether Flyer also was disqualified from representing DSC. The record does not indicate whether or how the trial court resolved this issue.

[5] An order granting a motion to disqualify counsel based on an alleged conflict of interest is an appealable order. (See Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882; McMillan v. Shadow Ridge at Oak Park Homeowner’s Assn. (2008) 165 Cal.App.4th 960, 964.)

[6] Notably, Grant did not dispute that DSC is governed by its bylaws, and that he, like the other members of DSC’s board on November 4, 2018, owed fiduciary duties to DSC. He also did not dispute that the Grant board filed documents with the secretary of state after November 6, 2018, or that Grant board removed equipment from DSC’s offices.

[7] Because we resolve the contention on this basis, we need not decide whether the other required elements of collateral estoppel are met.

[8] The court rejected, for lack of foundation, testimony by Butterfield’s expert CPA, Alan Lurie, who opined that, based on his investigation of DSC’s financial records, Butterfield was a DSC employee, and that the recipients of the checks for “hours” and “payroll” were independent contractors. The court also rejected Butterfield’s declaration regarding purportedly authorized payments made by DSC to him and others as employees or independent contractors, concluding the evidence was insufficient to overcome DSC’s showing that the wage payments were unauthorized.

Butterfield also takes issue with the trial court’s evidentiary rulings as to portions of declarations Weiss and Grant submitted in support of the MTD. With respect to Weiss, Butterfield’s overruled objections relate primarily to Weiss’s opinions, hyperbole and purportedly insulting behavior toward Flyer. This is a nonissue. The court’s legal conclusion was not premised on any representation in Weiss’s declarations.

We also reject Butterfield’s assertion of error as to the trial court’s rulings on objections to portions of Grant’s initial and supplemental declarations. First, the ruling reflects the court found that any problems regarding Grant’s initial failure to submit sufficient evidence of Flyer’s conflict were cured by corroborating evidence submitted with his supplemental filing. Butterfield’s assertion that Grant lacked authority to opine on the propriety of Butterfield’s actions because Grant was no longer on DSC’s board misses the point. At issue was DSC’s contention that Flyer simultaneously represented parties with conflicting interests. As discussed above, the record contains overwhelming evidence that he did and was properly disqualified. The appellate court reviews a trial court’s rulings on evidentiary objections for abuse of discretion. (Mackey v. Trustees of California State University (2019) 31 Cal.App.5th 640, 657.) Butterfield has fallen far short of satisfying his “burden of establishing the court exceeded the bounds of reason.” (Ibid.)

[9] That the trial court did not expressly find a “conflict” in Flyer’s representation of Fundenberg is of no moment. Flyer’s representation of Fundenberg posed the same problem as his representation of Butterfield: like Butterfield, in Case No. 19, Fundenberg’s interests as a defendant were contrary to those of DCS in Case No. 18 seeking damages against her and Butterfield.

NOT TO BE PUBLISHED IN THE 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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge.

Gregory Dickerson, in pro. per, for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney General, Neah Huynh, Deputy Attorney General, for Defendants and Respondents.

-ooOoo-

Plaintiff, a prison inmate, brought this action against the Department of Corrections and Rehabilitation (CDCR) and its personnel, alleging defendants failed to initiate the process to have him considered by the trial court for a recall of his sentence and resentencing under Penal Code section 1170, subdivision (d)(1). Defendants demurred to the first amended complaint, and the trial court sustained the demurrer without leave to amend, finding plaintiff’s claims were barred by governmental immunity. We conclude plaintiff’s first amended complaint failed to state a viable cause of action against any defendant, and plaintiff has not demonstrated his pleading could be amended to cure the defects. Accordingly, we affirm the judgment against him.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, a state prisoner acting in propria persona, filed a complaint against the CDCR and three of its employees. The complaint was served on the CDCR on September 6, 2018. The CDCR filed a demurrer in response to the complaint on October 9, 2018. The trial court sustained the CDCR’s unopposed demurrer with leave to amend. Plaintiff also served the individual defendants with the original complaint; they demurred to it and plaintiff opposed the demurrer. The trial court sustained the individuals’ demurrer with leave to amend.

Plaintiff filed a first amended complaint. It contained causes of action labeled breach of mandatory duty, negligence (against all defendants), negligence (against the CDCR only), and willful misconduct. It alleged defendants had a duty, pursuant to California Code of Regulations, title 15, section 3076.2, to request a recall of plaintiff’s sentence when there was a discrepancy in the sentence. Defendants failed to do so, even after plaintiff gave them definitive evidence that his sentence was illegal and that the CDCR was aware of it since 1996. Plaintiff also alleged that, after his conviction in Tulare County Superior Court, the CDCR asked the San Bernardino County Superior Court for the records of plaintiff’s prior conviction in that court, but the San Bernardino County Superior Court failed to provide them. The CDCR knowingly provided an incomplete record to the Tulare County Superior Court. Plaintiff alleged defendants’ failure to act to recall his sentence was at least negligent or was willful misconduct, and resulted in his prolonged incarceration. Plaintiff prayed for compensatory and punitive damages, and an injunction requiring defendants to immediately release him from custody.

After filing the first amended complaint, plaintiff filed a request for entry of the CDCR’s default on the original complaint. Entry of default was denied. All defendants demurred to the first amended complaint, plaintiff opposed, and the trial court sustained the demurrer without leave to amend; it found statutory immunity under the Government Claims Act (Gov. Code, § 810 et seq.)[1] precluded the liability of all defendants. Plaintiff appeals from the denial of his request for the CDCR’s default on the original complaint and from the order sustaining the demurrer to the first amended complaint without leave to amend.

DISCUSSION

I. Appealability

“The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) Plaintiff purports to appeal from the February 11, 2019 order denying entry of CDCR’s default and from the March 20, 2019 order sustaining the demurrer of all defendants to the first amended complaint. Neither is a final, appealable judgment. An order sustaining a demurrer without leave to amend is not an appealable order; an appeal is proper only after entry of a dismissal based on that order. (Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 412; Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1189.) Likewise, an order denying entry of default does not result in a final determination of all issues in the case or constitute a final judgment. (See UAP-Columbus JV 326132 v. Nesbitt (1991) 234 Cal.App.3d 1028, 1034–1035.)

The California Rules of Court allow us to “treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2).) Here, however, neither the record nor the register of actions reflects that a judgment of dismissal was ever entered. Nonetheless, the substantive issues on appeal have been fully briefed by both parties. In the interests of justice and to prevent unnecessary delay, we deem the order sustaining the demurrer as incorporating a judgment of dismissal and treat plaintiff’s notice of appeal as applying to the dismissal. (Nowlon v. Koram Ins. Center, Inc. (1991) 1 Cal.App.4th 1437, 1440–1441.)

II. Denial of Entry of Default

Generally, if a defendant has been served, but has not filed a responsive pleading, such as an answer or a demurrer, within 30 days after service, the clerk must enter the default of the defendant on the written request of the plaintiff. (Code Civ. Proc., §§ 412.20, 585.) The CDCR was personally served with summons and complaint on September 6, 2018. It filed its demurrer on October 9, 2018. Plaintiff contends CDCR’s responsive pleading was filed 33 days after service, and therefore was untimely. He concludes his request for entry of the CDCR’s default was improperly denied.

The CDCR demurrer was not untimely. “The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.” (Code Civ. Proc., § 12.) “Holiday” includes every Saturday and Sunday, and any holiday specified in Code of Civil Procedure section 135. (Code Civ. Proc., §§ 10, 12a.) Columbus Day, the second Monday in October, is a judicial holiday. (Code Civ. Proc., § 135; § 6700, subd. (a)(12).)

The CDCR was served on September 6, 2018. Thirty days later was Saturday, October 6, 2018, a holiday. Sunday was also a holiday. Monday, October 8, 2018, was Columbus Day, a judicial holiday. All three days were excluded from the calculation of the 30-day period for the CDCR’s response to the complaint. Thus, the last day to file the demurrer was Tuesday, October 9, 2018, which was the day it was filed. The CDCR’s demurrer to the original complaint was timely, and the clerk had no grounds for entering its default. There was no error in the denial of entry of default.
III. Demurrer[2]

A. Standard of Review

“On appeal from a dismissal after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law. [Citations.] We give the complaint a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citations.] We deem to be true all material facts properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged.” (Traders Sports v. City of San Leandro (2001) 93 Cal.App.4th 37, 43.) We do not, “however, assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) “If no liability exists as a matter of law, we must affirm that part of the judgment sustaining the demurrer.” (Traders Sports, supra, at p. 43.) We must reverse if plaintiff has stated a cause of action under any possible legal theory. (Aubry, supra, at p. 967.) “ ‘We do not review the reasons for the trial court’s ruling; if it is correct on any theory, even one not mentioned by the court, and even if the court made its ruling for the wrong reason, it will be affirmed.’ ” (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 637.)

On appeal, the judgment is presumed correct and the burden is on the appellant to affirmatively demonstrate error. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.)

“On appeal, all intendments weigh in favor of the regularity of the trial court proceedings and the correctness of the judgment. Unless clear error or abuse of discretion is demonstrated, the judgment will be affirmed.” (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.)

B. Breach of Mandatory Duty (First Cause of Action)

1. First cause of action

The trial court sustained defendants’ demurrer to the first amended complaint on the ground immunity precluded the liability of defendants. However, “[s]ince ‘the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff’ ” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785), we first consider whether defendants owed a duty to plaintiff to request recall of his sentence and resentencing, as alleged in the first amended complaint.

“n California, ‘all government tort liability must be based on statute.’ ” ([i]Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932; see § 815.) “ ‘[S]overeign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute.’ ” (Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 92.) “ ‘[B]ecause under the [Government] Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” ’ ” (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.)

Plaintiff’s first cause of action is entitled breach of a mandatory duty. It does not identify any statute on which liability is premised. Section 815.6, however, imposes liability on a public entity for breach of a mandatory duty. It provides:

“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (§ 815.6.)

We note this section addresses liability of a public entity only; it does not mention public employees. Thus, it may serve as the statutory basis for liability of the CDCR only.

Under section 815.6, the mandatory duty sued upon must be one imposed by “an enactment.” Enactments include constitutional provisions, statutes, charter provisions, ordinances, and regulations. (§ 810.6.) The only enactment mentioned in plaintiff’s first cause of action is section 3076.2 of title 15 of the California Code of Regulations. The first cause of action alleges the regulation provides that, “when there is a discrepancy in an inmate’s sentence, the process to recall a sentence should commence.” It alleges defendants breached a mandatory duty “by failing to make the request to recall plaintiff’s sentence after plaintiff provided defendants definitive evidence that his sentence is illegal and that defendant CDCR knew about it since 1996.”

“[T]here are three elements necessary to establish the liability of a public entity under section 815.6: (1) A mandatory duty imposed on the public entity by an enactment; (2) the enactment was designed to protect against the particular kind of injury that the plaintiff suffered; and (3) the plaintiff’s injury was proximately caused by the public entity’s failure to discharge its mandatory duty.” (All Angels Preschool/Daycare v. County of Merced (2011) 197 Cal.App.4th 394, 400.) The first element “requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498.)

The first cause of action does not allege a duty imposed by section 3076.2 of title 15 of the California Code of Regulations in mandatory terms. It alleges the regulation provides that, “when there is a discrepancy in an inmate’s sentence, the process to recall a sentence should commence.” (Italics added.) Section 3076.2 of title 15 of the California Code of Regulations implements Penal Code section 1170, subdivision (d)(1), which provides that, “the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings … recall the sentence and commitment previously ordered and resentence [a prison inmate] .… The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (Pen. Code, § 1170, subd. (d)(1).)[3] Thus, the statute authorizes, but does not require (“may”), the trial court to recall an inmate’s sentence and resentence the inmate. It may do so on the recommendation of the secretary of the CDCR or the Board of Parole Hearings, or on its own motion. The statute does not require the secretary or the Board of Parole Hearings to recommend recalling an inmate’s sentence and resentencing the inmate, or set out any circumstances under which such a recommendation is required to be made.

“n order to impose a mandatory duty on a public entity [citation], ‘ “the mandatory nature of the duty must be phrased in explicit and forceful language.” ’ ” ([i]Guzman v. County of Monterey (2009) 46 Cal.4th 887, 894.) “ ‘It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.’ ” (Id. at p. 898.) “ ‘Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.’ ” (Ibid.) Even when the term “shall” is used, “there may be ‘other factors [that] indicate that apparent obligatory language was not intended to foreclose a governmental entity’s or officer’s exercise of discretion.’ ” (Id. at p. 899.)

At the time plaintiff filed this action, section 3076 of title 15 of the California Code of Regulations provided that “the Secretary, or designee, may recommend” to the sentencing court that it recall an inmate’s sentence pursuant to Penal Code section 1170, subdivision (d), for specified reasons. (Cal. Code Regs, tit. 15, former § 3076, Register 2011, No. 27 (July 7, 2011), italics added.) The three reasons listed were:

“(1) It is evident from the inmate’s exceptional behavior that is so extraordinary beyond simply complying with all regulations and procedures during incarceration that they have changed as a person and would be a positive asset to the community.

“(2) Information which was not made available to the court in pronouncing the inmate’s sentence is brought to the attention of the Secretary, who deems the information would have influenced the sentence imposed by the court.

“(3) The Secretary deems that circumstances have changed to the extent that the inmate’s continued incarceration is not in the interest of justice.” (Cal. Code Regs, tit. 15, former § 3076, subd. (a), Register 2011, No. 27 (July 7, 2011).)

Plaintiff invokes the second reason and argues the Tulare County Superior Court, when it sentenced him, did not have the sentencing transcript from his prior San Bernardino County conviction. He asserts the CDCR requested a copy of plaintiff’s sentencing transcript from the San Bernardino County Superior Court in 1996, but the court responded that it had not prepared a transcript of sentencing proceedings for several years. Plaintiff has not alleged or explained what information was included in the absent sentencing transcript that he believes should have caused the secretary to deem that the information would have influenced the sentence imposed by the Tulare County Superior Court. He also does not allege that any such information was ever brought to the secretary’s attention.

Under the regulations, if an inmate met one or more of the eligibility requirements (i.e., the listed reasons) in California Code of Regulations, title 15, former section 3076, subdivision (a), “the Classification and Parole Representative, shall consider the following factors as may be applicable when recommending recall of commitment consideration for an inmate.” (Cal. Code Regs, tit. 15, former § 3076.1, Register 2011, No. 27 (July 7, 2011).) Further, “[r]equests for consideration which are initiated by the facility at any time or by the sentencing court more than 120 days after the date of the inmate’s commitment shall be referred to the Classification and Parole Representative (C&PR).” (Cal. Code Regs, tit. 15, former § 3076.2, subd. (a), Register 2011, No. 27 (July 7, 2011).) “If the inmate is not sentenced to death, the C&PR shall submit the request to the inmate’s caseworker,” who “shall … prepare an evaluation report,” noting the factors set out in former section 3076.1 of title 15 of the California Code of Regulations and including specified information about the inmate. (Cal. Code Regs, tit. 15, former § 3076.2, subd. (b)(2), Register 2011, No. 27 (July 7, 2011).) The C&PR “shall review and forward” the report to the warden or chief deputy warden, who “shall review and sign” the report and forward it to CDCR headquarters. (Cal. Code Regs, tit. 15, former § 3076.2, subds. (c), (d), Register 2011, No. 27 (July 7, 2011).) The evaluation report “shall be referred to the Secretary, or designee, for review and consideration.” (Cal. Code Regs, tit. 15, former § 3076.2, subd. (e), Register 2011, No. 27 (July 7, 2011).) “If the inmate is sentenced to an indeterminate term, the Secretary or designee’s recommendation, whether positive or negative, shall be referred to the Board of Parole Hearings for review and consideration.” (Cal. Code Regs, tit. 15, former § 3076.2, subd. (e)(2), Register 2011, No. 27 (July 7, 2011).)

The procedure for considering an inmate for a recall of sentencing applied to “inmates meeting one or more of the recall eligibility requirements of section 3076(a)” (Cal. Code Regs, tit. 15, former § 3076.1, Register 2011, No. 27 (July 7, 2011), when the facility or the sentencing court initiated a request for recall of sentence and resentencing (Cal. Code Regs, tit. 15, former § 3076.2, subd. (a), Register 2011, No. 27 (July 7, 2011)). Because of the nature of the three reasons listed as the grounds for a recall, they all required an exercise of judgment or discretion to determine whether they applied: (1) whether the inmate displayed exceptional or extraordinary behavior, (2) whether the secretary would deem information the sentencing court lacked sufficient that it would have influenced the court’s sentence, and (3) whether the circumstances had changed sufficiently that the inmate’s continued incarceration would not serve the interest of justice. Thus, to the extent Penal Code section 1170, subdivision (d)(1), and the regulations implementing it imposed an obligation on CDCR, they imposed an obligation to perform a function involving the exercise of discretion. They did not impose a mandatory duty for purposes of section 815.6 liability.

All of the “shall” provisions in former section 3076.2 of title 15 of the California Code of Regulations came into play only after the facility or the sentencing court requested consideration of an inmate for recall of sentence. Plaintiff’s first amended complaint does not allege that the sentencing court or a CDCR facility requested consideration of a recall of plaintiff’s sentence and resentencing. Therefore, the “shall” provisions were not triggered. Plaintiff has not identified anything in this regulation that imposed a mandatory duty on the CDCR to initiate the process to recommend a recall of plaintiff’s sentence and resentencing.

The current version of section 3076.2 of title 15 of the California Code of Regulations, which has been in effect since January 1, 2020, also does not impose a mandatory duty on the CDCR. It provides: “No more than 10 business days after receiving a request from the head of a law enforcement agency, head of a prosecutorial agency, or judicial officer asking that the Secretary consider recommending an inmate to a sentencing court pursuant to subdivision (d) of Section 1170 of the Penal Code, the Classification Services Unit shall prepare a Cumulative Case Summary … and forward the request and the summary to the Secretary for consideration.” (Cal. Code Regs., tit. 15, § 3076.2, subd. (a).) The remainder of the regulation addresses what occurs subsequently, “f the Secretary elects to recommend the inmate for recall and resentencing.” (Cal. Code Regs., tit. 15, § 3076.2, subds. (b), (c).) By its terms, the current regulation applies only when it is triggered by a request from “the head of a law enforcement agency, head of a prosecutorial agency, or judicial officer.” The first cause of action does not allege any such request. It alleges defendants failed to act after [i]plaintiff provided them information that there was a discrepancy in his sentence and his sentence was illegal. The current regulation does not mandate or direct any action based on a request by the inmate.

Consequently, because plaintiff failed to allege any enactment that imposed on the CDCR a mandatory duty to begin the process of requesting or recommending a recall of plaintiff’s sentence and resentencing, plaintiff’s first cause of action for breach of a mandatory duty fails to state a cause of action against the CDCR. Because the statute authorizing public entity liability for breach of a mandatory duty (§ 815.6) applies only to public entities, and not to public employees, the first cause of action also fails to state a cause of action against the individual defendants. The demurrer to the first cause of action was properly sustained.

2. Third cause of action

The third cause of action attempts to allege a cause of action for negligence against the CDCR only. It alleges that, “[a]fter plaintiff’s conviction in the Tulare County Superior Court, defendant CDCR provided that court with subpar documents and an incomplete record from the San Bernardino County Superior Court.” It alleges the CDCR knew the record was incomplete because in 1996 it asked the San Bernardino Superior Court the location of the “pertinent documents,” and the court did not provide them “as mandated in Penal Code § 1203.01(a).”

To the extent this cause of action is premised on an alleged breach of a mandatory duty, it fails because the statute identified does not impose a mandatory duty on the CDCR. Penal Code section 1203.01, subdivision (a), provides, in relevant part: “Immediately after judgment has been pronounced, the judge and the district attorney, respectively, may cause to be filed with the clerk of the court a brief statement of their views respecting the person convicted or sentenced and the crime committed, together with any reports the probation officer may have filed relative to the prisoner. The judge and district attorney shall cause those statements to be filed if no probation officer’s report has been filed.” (Pen. Code, § 1203.01, subd. (a).) The criminal defendant’s attorney and the law enforcement agency that investigated the case are also permitted to file statements. (Ibid.) The court clerk must mail copies of the statements to the CDCR, the inmate, and the inmate’s attorney. (Ibid.)

Subdivision (b) of Penal Code section 1203.01, which the first amended complaint does not mention, also requires the court clerk to mail to the prison to which the convicted person is delivered “a copy of the charging documents, a copy of waiver and plea forms, if any, the transcript of the proceedings at the time of the defendant’s guilty or nolo contendere plea, if the defendant pleaded guilty or nolo contendere, and the transcript of the proceedings at the time of sentencing.” (Pen. Code, § 1203.01, subd. (b)(1).)

Penal Code section 1203.01 does not impose any mandatory duties on the CDCR. It did not require the CDCR to provide documents concerning plaintiff’s San Bernardino Superior Court conviction to the Tulare County Superior Court, in connection with his sentencing in the latter court. The third cause of action fails to state a cause of action for breach of a mandatory duty against the CDCR.

C. Public Employee Liability and Vicarious Liability of Employer

Another statute under which a public entity may incur tort liability is section 815.2. It provides:

“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

“(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (§ 815.2.)

In the absence of statutory immunity, “a public employee is liable for injury caused by his act or omission to the same extent as a private person.” (§ 820, subd. (a).) “Thus, ‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person [citation] and the public entity is vicariously liable for any injury which its employee causes [citation] to the same extent as a private employer.’ ” (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)

The second, third, and fourth causes of action attempt to allege claims of negligence and willful misconduct against defendants. To allege a negligence cause of action against the individual defendants, plaintiff must allege all the elements of negligence; to allege a negligence cause of action against the CDCR based on vicarious liability, plaintiff must allege the negligence of the individual defendants or other CDCR employees[4] within the scope of their employment. “Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. [Citation.] However, because under the [Government] Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable.” (Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d at p. 795.) A negligence cause of action against a public entity or a public employee must be pleaded with particularity. (Ibid.; Gates v. Superior Court (1995) 32 Cal.App.4th 481, 493–494.) Further, “t is a plaintiff’s responsibility to plead ‘ “facts sufficient to show [their] cause of action lies outside the breadth of any applicable statutory immunity.” ’ ” ([i]Soliz v. Williams, supra, 74 Cal.App.4th at p. 585.)

The elements of a negligence cause of action are: “(1) the existence of a legal duty to use due care; (2) a breach of that duty; and (3) the breach as a proximate cause of the plaintiff’s injury.” (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1210–1211.) Willful misconduct is not a separate tort, but an aggravated form of negligence. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 895.) Three additional elements must be present to raise negligence to the level of willful misconduct: “ ‘ “(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528.)

The individual defendants are identified as R.C. Johnson, chief deputy warden, I. Garza, correctional counselor II, and J. Ward, correctional counselor II, appeals coordinator. Johnson allegedly had responsibility for adhering to the mandates of title 15 of the California Code of Regulations. Garza and Ward were allegedly responsible for reading, researching, and answering inmate appeals. The individual defendants allegedly owed a duty to plaintiff pursuant to section 3076.2 of title 15 of the California Code of Regulations to commence the process to recall his sentence when they knew there was “a discrepancy” in his sentence and his sentence was illegal. They allegedly breached this duty by failing to make a request to recall his sentence, when they knew the claims in his inmate appeal were meritorious and when plaintiff provided them with definitive evidence that his sentence was illegal and that CDCR knew this since 1996. As a direct and proximate result of their breach of duty, plaintiff alleges he sustained unnecessary prolonged incarceration.

The recall proceedings are authorized by statute and regulation, so the source of any duty to initiate or participate in them must reside in the applicable statute and regulations. The trial court concluded that immunity barred plaintiff’s claims against the individual defendants. It found any duty of the individuals to initiate proceedings to recall plaintiff’s sentence was a discretionary duty, as to which the individual defendants held immunity from liability pursuant to section 820.2. That section provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (§ 820.2.) Under the statute, discretionary immunity “is reserved for ‘basic policy decisions’ which have been expressly committed to certain branches of the government, as to which judicial interference would be ‘unseemly’ and interfere with that body’s decisionmaking process. [Citation.] On the other hand, there is no immunity for lower level or ministerial decisions that merely implement the basic policy decisions.” (Zuniga v. Housing Authority, supra, 41 Cal.App.4th at p. 97.)

Under Penal Code section 1170, subdivision (d)(1), the sentencing court has discretion, “upon the recommendation of the secretary or the Board of Parole Hearings … [to] recall the sentence and commitment previously ordered and resentence the defendant … so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (Pen. Code, § 1170, subd. (d)(1).) At the time plaintiff’s complaint was filed, the secretary or a designee had discretion to recommend to the sentencing court that it recall an inmate’s sentence on any of three specified grounds. (Cal. Code Regs, tit. 15, former § 3076, subd. (a), Register 2011, No. 27 (July 7, 2011).) Each of the grounds involved subjective, rather than objective, criteria and called for the use of judgment in determining whether an inmate qualified. (Ibid.) Requests by a prison facility for consideration of an inmate for a recall of sentence were referred to the C&PR. (Cal. Code Regs, tit. 15, former § 3076.2, subd. (a), Register 2011, No. 27 (July 7, 2011).) For inmates meeting one or more of the grounds specified in section 3076, subdivision (a), of title 15 of the California Code of Regulations, the C&PR was required to consider the seven factors listed in section 3076.1 of title 15 of the California Code of Regulations before recommending that an inmate be considered for recall of sentence. (Cal. Code Regs, tit. 15, former § 3076.1, Register 2011, No. 27 (July 7, 2011).)

Thus, initiation of the process for considering whether to recommend an inmate to the court for recall of sentence and resentencing required exercising discretion regarding whether the inmate fell within any of the categories of eligible inmates, and considering various specified factors, as applicable to that inmate. That discretion was vested in CDCR personnel by statute and regulation.

Plaintiff’s first amended complaint alleges that the CDCR and the individual defendants failed to initiate the discretionary process of considering whether to recommend to the court that plaintiff be considered for recall of sentence. It did not challenge subsequent ministerial acts implementing that decision. Accordingly, the first amended complaint challenged only a discretionary decision assigned to the CDCR and its personnel by statute and regulation. Imposing liability on defendants for the manner in which they exercised their discretion would allow second-guessing of their decision by a coordinate branch of government; it would “ ‘place the courts in the “unseemly position” of making [a public entity or its employees] accountable in damages for a “decision-making process” delegated to [them] by statute’ ” and regulation. (Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 466.)

We conclude the trial court properly found plaintiff’s negligence and willful misconduct causes of action against the individual defendants are barred by the immunity provided by section 820.2, covering discretionary acts or decisions of public employees. Further, because “a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability” (§ 815.2, subd. (b)), plaintiff’s negligence and willful misconduct claims against CDCR are also barred by immunity. The trial court properly sustained defendants’ demurrer to the second, third, and fourth causes of action of the first amended complaint.

IV. Leave to Amend

“We review the decision to deny leave to amend under the abuse of discretion standard. [Citation.] In doing so, we decide whether there is a reasonable possibility that the defect can be cured by amendment. [Citation.] ‘The burden of proving such reasonable possibility is squarely on the plaintiff.’ ” (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 441.)

Plaintiff has not attempted to show how his first amended complaint can be amended to state a cause of action against any of the defendants, and to avoid the effects of the immunity statutes. He has not met his burden of demonstrating that the trial court abused its discretion in denying leave to amend. Consequently, we find no error in that denial.

DISPOSITION

The judgment is affirmed. Defendants are entitled to their costs on appeal.

* Before Poochigian, Acting P.J., Franson, J. and Smith, J.

[1] All further statutory references are to the Government Code, unless otherwise indicated.

[2] In his opening brief, plaintiff attempts to object to our consideration of documents of which the trial court took judicial notice, asserting they are irrelevant. Failure to timely object to the propriety of judicial notice is deemed a forfeiture of that objection. (Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 512, fn. 4.) Plaintiff did not object to judicial notice in the trial court, and we deem any objection forfeited.

[3] The version of Penal Code section 1170, subdivision (d)(1), in effect on August 1, 2018, when plaintiff filed his complaint, contained the same provisions. (Stats. 2018, ch. 36, § 17.) After that date, amendments to the statute made only minor changes to subdivision (d)(1), which do not affect this case. (See Stats. 2018, ch. 1001, § 1, Stats. 2020, ch. 29, § 14.)

[4] “Under [section 815.2], it will not be necessary in every case to identify the particular employee upon whose act the liability of the public entity is to be predicated. All that will be necessary will be to show that some employee of the public entity tortiously inflicted the injury in the scope of his employment under circumstances where he would be personally liable.” (Legis. Com. comment to § 815.2.)

NOT TO BE PUBLISHED IN THE 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 FOUR

APPEAL from a judgment and order of the Superior Court of Los Angeles County, Gloria White-Brown, Judge. Affirmed.

Flyer and Flyer, David R. Flyer and Raquel Flyer Dachner for Defendants and Appellants David A. Butterfield and Louise Fundenberg.

Christopher Grant, in pro. per., for Defendant and Appellant Christopher Grant.

Abrams Garfinkel Margolis & Bergson, Kenneth F. Spencer, Joshua M. Webster and Michael J. Weiss for Plaintiff and Respondent.

These consolidated appeals concern two competing lawsuits brought in the name of a nonprofit charitable organization, Disability Services Corporation (DSC). The cases arise from a struggle between two rival factions of DSC’s board of directors (board) to control the corporation. In each of the two actions, one rival faction engaged separate counsel to file suit against the other rival faction for malfeasance in the management of DSC’s assets. Neither action is a shareholder derivative suit; in both DSC sues one board or the other in its individual corporate capacity.

The first case is DSC v. Christopher Grant, et al. (L.A.S.C. case No. 18PSCV00187, hereafter Case No. 18). It was filed on DSC’s behalf by the law firm Flyer and Flyer, and attorney David Flyer (collectively Flyer or Flyer’s firm). The complaint alleged that Christopher Grant and three other members of DSC’s board (the Grant board) violated DSC’s bylaws by, among other things, improperly reconstituting DSC’s board and creating false documents in order to misuse the entity’s offices and charitable funds. The trial court granted summary judgment in favor of DSC and against Grant, who was in pro. per. and was the only defendant to answer the complaint. Grant now appeals in pro. per. from the summary judgment in Case No. 18.

The second case, DSC v. David Butterfield, et al. (L.A.S.C. case No. 19PSCV00064, hereafter Case No. 19), was filed on DSC’s behalf by attorney Michael Weiss and his firm, Abrams Garfinkel Margolis & Bergson. The complaint in Case No. 19 alleged that David Butterfield (then-president of DSC’s board) engaged in the unauthorized use of DSC funds to purchase personal items and to hire and pay himself, his friends, and his family members. As individual defendants in this case, Butterfield and another board member, Louise Fundenberg, were represented by Flyer. As noted, Flyer was also counsel for DSC in Case No. 18 against the Grant board. Because of this simultaneous representation, the trial court granted a motion to disqualify Flyer from representing Butterfield and Fundenberg in Case No. 19. Butterfield and Fundenberg appeal from this disqualification ruling in Case No. 19.

For reasons explained below, we affirm both of the trial court’s rulings.

FACTUAL AND PROCEDURAL BACKGROUND

DSC is a non-profit organization formed in 1960 principally to serve the needs of children with learning disabilities. In October 2017, Butterfield was appointed president of DSC’s board. At that time, DSC’s bank accounts contained at least $350,000 from a charitable donation made to the organization.

Case No. 18: DSC v. the Grant Board

On December 17, 2018, Flyer filed Case No. 18 on behalf of DSC against the Grant board. The case was authorized on DCS’s behalf by Butterfield. Five causes of action were alleged: fraud, breach of fiduciary duty, conversion, money had and received, and commercial unlawful detainer. The complaint alleged that in early November 2018, in violation of DSC’s bylaws, the Grant board conducted a secret meeting without notifying or providing access to Butterfield and two other members of DSC’s eight-member board.^[1]

It was further alleged that the Grant board “created phony corporate documents which purportedly authorized them to perform official duties on behalf of [DSC].” After filing the documents with the California Secretary of State, the Grant board allegedly “took over [DSC’s] offices,” withdrew approximately $178,000 from DSC’s bank accounts (which they diverted to non-charitable purposes) and refused DSC’s demand to return the funds.

Case No. 19: DSC v. Butterfield and Fundenberg

On January 18, 2019, represented by attorney Michael Weiss and his firm, Abrams Garfinkel Margolis & Bergson law firm, DSC filed Case No. 19 against Butterfield and Fundenberg.^[2] The case was authorized on DSC’s behalf by the Grant board. As defendants in this lawsuit, Butterfield and Fundenberg were represented by Flyer (who was also representing DSC as the plaintiff in Case No. 18 against the Grant board).

As pertinent here, the complaint alleged claims for breach of fiduciary duty, conversion, and common counts for money had and received and accounting.^[3] DSC alleged that, after he was appointed board president, Butterfield engaged in misconduct in violation of DSC’s bylaws by, among other things, using DSC funds to buy a car and pay unauthorized tax-free wages to himself, his friends and his family members, and using DSC credit cards to pay for personal items and services. The complaint also alleged that Butterfield wrongfully denied the Grant board access to DSC business records and likely embezzled DSC’s funds.

DSC claimed that, on or about November 4, 2018, the Grant board became aware of Butterfield’s misdeeds. They called an emergency special board meeting for November 6, 2018 to address Butterfield’s misconduct and, on that date, voted to remove him from DSC’s board. Butterfield was notified of his removal and instructed to return all DSC property.

To prevent Butterfield from engaging in further malfeasance, one member of the Grant board ordered that the locks be changed on DSC’s offices. In addition, the Grant board, concerned that Butterfield retained access to DSC bank accounts, withdrew $177,818.39 from DSC’s accounts. On November 19, 2018, after Butterfield refused to accept his removal, the Grant board filed an amended Statement of Information form with the Secretary of State removing Butterfield as an officer of DSC.

Finally, DSC alleged that after Butterfield’s removal from the DSC board, attorney Flyer, in violation of the Rules of Professional Conduct, rules 1.7 and 1.13, actively assisted Butterfield in engaging in various wrongful acts in an effort to regain control of DSC and the remaining charitable funds. Those acts included the filing of Case No. 18 in DSC’s name against the Grant board. They also included the filing of a fraudulent Statement of Information with the Secretary of State that named Butterfield as DSC’s chief executive officer and that purported to remove the Grant board members from DSC’s board.

Case No. 19: First Motion to Disqualify

Flyer was simultaneously representing: (1) plaintiff DSC in Case No. 18 against the rival Grant board, in which the Grant board was charged with corporate malfeasance, and (2) defendants Butterfield and Fundenberg in Case No. 19, in which Butterfield and Fundenberg were charged with competing acts of corporate malfeasance.

On April 10, 2019, in Case No. 19, DSC filed its initial motion to disqualify (MTD) Flyer from representing Butterfield and Fundenberg as defendants in Case No. 19. In the MTD, DSC argued that “in an act of pure malice and retaliation, and without standing to do so,” Butterfield instructed Flyer to commence Case No. 18 on behalf of DSC against the Grant board. In filing and pursuing Case No. 18, Flyer allegedly also engaged in improper simultaneous representation of DSC as the plaintiff in Case No. 18, and of individual defendants Butterfield and Fundenberg in Case No. 19.

In opposition, Butterfield and Fundenberg argued DSC lacked standing to sue, because the Grant board had no authority to authorize such action. They also asserted that minutes of a January 20, 2019 meeting of DSC’s true board reflected a vote “rescinding” Weiss’s authority to prosecute Case No. 19 on DSC’s behalf. Instead, the board retained Flyer’s firm to represent Butterfield and Fundenberg in that action. Finally, Butterfield and Fundenberg argued that the Weiss declaration submitted in support of the MTD presented no admissible evidence of wrongdoing by Butterfield or Flyer.

On July 17, 2019, the MTD was argued. The court found DSC had failed to present admissible evidence of “adverse, conflicting interests” between DSC on the one hand, and Butterfield and Fundenberg on the other, and denied the motion without prejudice.

Case No. 19: Renewed Motion to Disqualify

On August 28, 2019, DSC filed a second MTD in Case No. 19, largely reiterating its earlier arguments, supported by the declarations of Grant and Weiss. DSC also informed the trial court that, in March 2018, Flyer had previously represented DSC in a federal action.

In opposition to the second MTD, Butterfield and Fundenberg argued: (1) DSC lacked standing to seek Flyer’s disqualification, (2) an attorney could properly represent an entity and its agent where, as here, there was no conflict of interest, and (3) DSC’s board had investigated the matter and determined there was no actual conflict of interest.

On November 5, 2019, at the hearing on the second MTD, the trial court expressed its “belie[f] that there probably [was] a conflict of interest” in Flyer’s simultaneous representation of DSC as plaintiff in Case No. 18, and Butterfield and Fundenberg as defendant’s in Case No. 19. However, the court found again that Grant had failed to submit competent evidence to support a finding that a conflict in fact existed. On its own motion, the court continued the hearing to permit Grant to produce admissible evidence showing the existence of adverse, conflicting interests.

Grant and Weiss submitted supplemental declarations. The declarations were accompanied by “timesheets” that Butterfield and his friends and family members presented to DSC in fall 2018. The declarations were also accompanied by copies of bank statements and approximately 50 checks reflecting payments of over $29,000 made by DSC to these individuals. Many checks contained the designations “payroll” and “hours,” but no tax or other withholdings had been taken from wages paid. DSC also submitted evidence of cash withdrawals Butterfield made for personal use. Finally, DSC submitted a copy of a March 2018 agreement by which DSC had retained Flyer to represent it in a prior action in federal court.

The trial court found this evidence sufficient to support the allegation that Butterfield had “hired and paid employees without the Board’s authorization in violation of DSC’s bylaws.” This evidence was “significant because it demonstrate[d] that a conflict between DSC and its former president, . . . Butterfield, ha[d] arisen.” As such, the court concluded that Flyer was disqualified from representing Butterfield and Fundenberg in Case No. 19, and granted the MTD.^[4]

Butterfield and Fundenberg appeal from the order disqualifying Flyer from representing them.^[5] In their opening brief, they state that the parties agreed to stay Case No. 19 pending the outcome of this appeal.

Case No. 18—Motion for Summary Judgment

In April 2020, in Case No. 18, DSC (represented by Flyer) filed a “Motion for Summary Judgment,” supported by six declarations from DSC board members, and a declaration from an attorney in Flyer’s firm. DSC also filed a “Separate Statement in Support of [the motion for summary judgment],” and a Request for Judicial Notice.

DSC argued that undisputed evidence established that the Grant board had breached its fiduciary duties, committed conversion, and improperly retained funds intended for DSC’s benefit. The gist of DSC’s motion was that the Grant board members breached their fiduciary duties by failing to provide notice of or access to the November 6, 2018 special meeting to Butterfield and Fundenberg and two other board members, as required by DSC’s bylaws and California law. As a result, Butterfield and Fundenberg argued that all actions taken by Grant board at and after the November 6, 2018 meeting were unauthorized and invalid. Those invalid actions included the Grant board’s creation of improper authorization documents filed with the Secretary of State, withdrawal of approximately $178,000 from DSC’s bank accounts, assumption of control over DSC’s offices for three months, conversion of DSC property contained therein, and unauthorized retention of and payments to Weiss’s firm.

Grant, the only defendant in Case No. 18 to answer the complaint, opposed the summary judgment motion. On April 28, 2020, Grant (who has been self-represented throughout this litigation), filed a document entitled “Objection to [DSC’s] Motion for Summary Judgment” (Objection). Grant did not submit a separate statement.

The hearing on the motion for summary judgment began on June 25, 2020. The trial court observed that Grant’s Objection did not comply with the requirements of the California Rules of Court, rule 3.1354(b) regarding objections to evidence. Nevertheless, on its own motion, the court agreed to construe Grant’s Objection as his points and authorities in opposition to the motion for summary judgment. On its own motion, the court also continued the hearing to August 12, 2020 and directed Grant to file a separate statement by July 10, 2020.

On July 9, 2020, Grant filed a separate statement that disputed and or objected to the majority of DSC’s 49 purportedly undisputed facts.^[6] However, Grant presented no additional disputed facts. Grant also submitted a 169-page “Response” to DSC’s motion for summary judgment which included declarations from each Grant board member and 26 exhibits. On July 17, 2020, DSC filed its supplemental reply and objections to Grant’s declaration.

The summary judgment motion was argued on August 12, 2020. The trial court considered Grant’s Objection and separate statement. However, the court declined to consider Grant’s voluminous July 9, 2020 “Response” because it “exceed[ed] the scope of the court’s June 25, 2020 minute order.” Addressing the merits, the trial court found that DSC satisfied its initial burden of proof, but Grant failed to present evidence demonstrating the existence of a material factual dispute. The motion was granted, and judgment subsequently entered in favor of DSC for $14,016.35. Grant timely appealed. We granted Butterfield’s request to consolidate the two appeals.

DISCUSSION

1. Case No. 19: The Motion to Disqualify

Butterfield and Fundenberg argue that the trial court erred when it disqualified Flyer from representing them in Case No. 19. They maintain that (1) DCS lacked standing to have Flyer disqualified, because the Grant board lacked authority to initiate such action in Case No. 19 on DSC’s behalf, (2) in light of the court’s grant of summary judgment in Case No. 18, the doctrine of collateral estoppel requires reversal of the order disqualifying Flyer in Case No. 19, and (3) the evidence and law do not support Flyer’s disqualification in Case No. 19. We reject these contentions.

The Standard of Review

Broadly speaking, a trial court’s decision on a disqualification motion is reviewed for abuse of discretion. (Doe v. Yim (2020) 55 Cal.App.5th 573, 581.) Under this standard, we review the court’s legal conclusions de novo, and review its factual findings for the existence of substantial supporting evidence. (Ibid.) If substantial evidence supports the trial court’s factual findings, we review its conclusions based on those findings for abuse of discretion. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712 (Haraguchi); Bridgepoint Construction Services, Inc. v. Newton (2018) 26 Cal.App.5th 966, 969 (Bridgepoint).)

1. Standing to Seek Flyer’s Disqualification

We reject Butterfield and Fundenberg’s argument that the Grant board members were no longer “true” members of DSC’s board, and that therefore DCS had no standing in Case No. 19 to bring a motion in DSC’s name to disqualify Flyer. “A complaining party who files a motion to disqualify is required to have standing.” (Blue Water Sunset, LLC v. Markowitz (2011) 192 Cal.App.4th 477, 485 (Blue Water).) Standing may be conferred if the complaining party has a past or present attorney-client relationship with the attorney targeted by the motion. (Id. at p. 487 [“f an attorney simultaneously represents two clients with adverse interests, automatic disqualification is the rule”].)

2. [i]Collateral Estoppel

In Case No. 18, the trial court granted summary judgment on DSC’s complaint against the Grant board. The court found, in substance, that Grant raised no triable issue of fact to dispute that the Grant board’s purported take-over of DCS and later actions, as alleged in the complaint, violated DCS’s bylaws and the California Corporations Code. In our discussion of Grant’s appeal from the ruling, in part II of our opinion, we affirm the ruling.

However, we disagree with Butterfield and Fundenberg that under the doctrine of collateral estoppel, the summary judgment in Case No. 18 requires reversal of the trial court’s disqualification ruling in Case No. 19. The doctrine of collateral estoppel operates to prevent the relitigation of issues previously adjudicated in another action. (In re Marriage of Furie (2017) 16 Cal.App.5th 816, 827–828.) The test for the application of the doctrine requires, among other things, that the issue be identical to the one sought to be relitigated, which was necessarily decided in a prior action. (Ibid.; Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.) At the time the trial court ordered Flyer disqualified, both Case Nos. 18 and 19 were pending. The issue decided by the motion to disqualify in Case No. 19 did not address the merits of the two lawsuits and the question who had corporate control, but whether in the two competing lawsuits yet to be litigated, Flyer was simultaneously representing multiple clients who had adverse interests. That was not the issue decided by the grant of summary judgment. Of course, DSC’s summary judgment motion had not yet been filed, let alone ruled on. Moreover, the later grant of summary judgment against Grant in Case No. 18 did not obviate Flyer’s simultaneous representation of clients with adverse interests in Case Nos. 18 and 19, before the summary judgment.^[7]

D. The Disqualification Ruling

As we have noted, “it is a violation of the duty of loyalty for the attorney to assume a position adverse or antagonistic to his or her client without the client’s free and intelligent consent given after full knowledge of all the facts and circumstances. [Citation.]” (State Farm Mutual Automobile Ins. Co. v. Federal Ins. Co. (1999) 72 Cal.App.4th 1422, 1431.)

In Forrest v. Baeza (1997) 58 Cal.App.4th 65, the court observed that, in contrast to cases involving successive representation of clients with potentially adverse interests, “‘[t]he primary value at stake in cases of simultaneous or dual representation is the attorney’s duty—and the client’s legitimate expectation—of loyalty, rather than confidentiality.’ (Flatt v. Superior Court [(1994)] 9 Cal.4th [275] at p. 284.) ‘“[R]epresentation adverse to a present client must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each of his clients.’” [Citation.] [¶] ‘n all but a few instances, the rule of disqualification in simultaneous representation cases is a [i]per se or “automatic” one. [Citations.] [¶] . . . The strict proscription against dual representation of clients with adverse interests thus derives from a concern with protecting the integrity of the attorney-client relationship rather than from concerns with the risk of specific acts of disloyalty or diminution of the quality of the attorney’s representation.” (Forrest, supra, at p. 74.)

Here, in support of its request for Flyer’s disqualification, DSC presented evidence that its board lacked a signed retainer with Flyer’s firm. DSC also presented copies of 50 checks signed by Butterfield between July 2018 and 2019, evidencing tax-free salary and wage payments of over $29,000 to Butterfield and his family members and friends. It also presented evidence that Butterfield hired and paid these individuals without authorization and in violation of DSC’s bylaws.

The court found this that this evidence “demonstrate[d] that a conflict between DSC and its former president, . . . Butterfield, ha[d] arisen. As such, [Flyer] [was] not [permitted to] represent both DSC and . . . Butterfield.”^[8] The trial court rejected Butterfield’s representation that he was an employee of DSC in January 2019, that another board member had approved one individual’s employment, and two others had worked as independent contractors.

The trial court’s factual findings are supported by substantial evidence (the evidence submitted by DSC), and buttressed by the court’s credibility findings (rejecting Butterfield’s evidence). Therefore, we review the court’s disqualification of Flyer premised on those findings for abuse of discretion. (See Haraguchi, supra, 43 Cal.4th at pp. 711–712; Bridgepoint, supra, 26 Cal.App.5th at p. 969.)

On the facts as found by the court, the court reasonably concluded that Flyer was disqualified from representing both DSC as plaintiff in Case No. 18 and individual defendants Butterfield and Fundenberg being sued by DSC in Case No. 19. In short, Flyer was simultaneously representing clients with adverse interests: in Case No. 18, he represented DSC in its action against the Grant board; in Case No. 19, he represented Butterfield and Fundenberg, rivals of the Grant board, in DCS’s action against them. Where, as here, a member of a company’s board is accused of wrongdoing, the same attorney may not represent both the corporation and the accused board member, nor may the company’s directors waive the inherent conflict of interest. (See Blue Water, supra, 192 Cal.App.4th at pp. 486–487 [the same law firm may not represent a company and company insiders alleged to have committed fraud whose interests are adverse and conflicting]; Gong v. RFG Oil, Inc. (2008) 166 Cal.App.4th 209, 214–215.) The trial court did not abuse its discretion in disqualifying Flyer from representing Butterfield and Fundenberg as defendants in Case No. 19, based on the conflict of interest created by his simultaneous representation of DSC as plaintiff in Case No. 18.^[9]

2. Case No. 18: Summary Judgment

1. Standard of Review and Controlling Law

The fundamental purpose of a summary judgment motion is to provide the trial court a mechanism to cut through the parties’ pleadings and determine whether material factual issues exist such that a trial is necessary to resolve the dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; Yanez v. Plummer (2013) 221 Cal.App.4th 180, 186.)

To that end, a basic requirement is that the papers supporting a motion for summary judgment “shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.” (Code Civ. Proc., § 437c, subd. (b)(1).) Each material fact in the separate statement must be accompanied by reference to the evidence supporting that fact. (Ibid.) “The separate statement is not merely a technical requirement, it is an indispensable part of the summary judgment or adjudication process,” and “failure to comply with this requirement sufficient grounds to grant the motion.” (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.)

Similarly, a party opposing a motion for summary judgment must file its own “separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed[,] . . . followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civil Proc., § 437c, subd. (b)(3), italics added; see also Cal. Rules of Court, rule 3.1350(e)(2).) “‘We review the ruling on a motion for summary judgment de novo, applying the same standard as the trial court.’ [Citation.]” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76.)

Grant’s Separate Statement

Grant maintains the court erred not considering his “July 9th responding Separate Statement [because it] exceeded the scope of the court’s June 25, 2020 minute order.” Grant misstates the trial court’s ruling. The trial court did consider the separate statement Grant submitted on July 9. What the court declined to consider was Grant’s belated 169-page “Response” to DSC’s motion for summary judgment, which included declarations from each Grant board member and 26 exhibits.

In any event, the trial court did not err in refusing to consider Grant’s “Response.” The court exercised its discretion to construe Grant’s inappropriate “Objection to [DSC’s] Motion for Summary Judgement,” as what he should have filed, an “opposing memorandum of points and authorities.” Further, after admonishing Grant that, as a self-represented party, he was held to the same standard as an attorney, the court also continued the hearing to give him additional time to file a compliant separate statement. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [Pro. per. litigants are held to the same standards as attorneys]). The court’s June 25 order did not afford Grant carte blanche to submit additional briefing or a voluminous mass of undifferentiated evidence, and the court was not required to consider it. (Cf., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [observing that summary judgment motion was plagued by “reply papers [that] included a 297-page reply separate statement,” which is not provided for by statute].)

2. Summary Judgment

The trial court found DSC satisfied its burden and was entitled to summary judgment based on the following.

It is undisputed that DSC is governed by bylaws. Section 11 of DSC’s bylaws requires that:

“b) Special meetings of the Board shall be held upon seven (7) days’ notice by first-class mail or forty-eight (48) hours’ notice delivered personally or by telephone or by email. . . . Such notices shall be addressed to each Director at his or her address . . . . Notice shall be given of any . . . special meeting to Directors absent from the original meeting. . . .

“c) Notice of meetings shall specify the place, day, and hour of the meeting. The purpose of any Board meeting shall be specified in the notice.” (Italics added.)

On November 4, 2018, DSC’s eight-member board was comprised of the four Grant board members, Butterfield, Fundenberg, Durand and Smith (who resigned). The evidence showed that Durand been excused from attending some meetings but remained qualified to vote. Fundenberg had been ill and unable to attend board meetings the two preceding months. However, she participated in the November 4, 2018 board meeting and resumed her position as treasurer.

Grant concedes that he, like the other members of DSC’s board on November 4, 2018, owed fiduciary duties to DSC. On November 6, 2018, the four Grant board members conducted a special meeting. In violation of DSC’s bylaws, Durand, Butterfield and Fundenberg were not provided notice of the November 6, 2018 meeting, and Butterfield and Fundenberg were denied access to that meeting. Corporations Code section 307, subdivision (a)(2) mandates that a corporation’s “bylaws may not dispense with notice of a special meeting.” (Italics added.)

On November 8, 2018, the Grant board members withdrew substantial funds from DSC’s accounts and created a new Statement of Information, which they filed with the Secretary of State and used to open new bank accounts on behalf of DSC. The Grant board members assumed control of DSC’s offices and used the entity’s funds to change locks, purchase computers and other property, and to retain Weiss’s firm to represent DSC in a case against Butterfield. Grant concedes that the Grant board members filed documents with the secretary of state after the meeting on November 6, 2018 on behalf of DSC and that they removed equipment from DSC’s offices. The record of the summary judgment motion contains no indication that the Grant board members were authorized to file a new Statement of Information on behalf of DSC, or to retain Weiss’s firm.

California law provides that “[s]pecial meetings of the board shall be held upon four days’ notice by mail or 48 hours’ notice delivered personally or by telephone . . . . The articles or bylaws may not dispense with notice of a special meeting.” (Corp. Code, § 307, subd. (a)(2); see also Grant v. Hartman Ranch Co. (1961) 193 Cal.App.2d 497, 501 [holding that defective notice rendered board meeting invalid]; Thompson v. Williams (1888) 76 Cal. 153, 154–155 [“Each director must have special notice of the regular meetings of the board of directors of the corporation defendant,” and actions taken in the absence of such notice and nonattending board members are “without authority and . . . a nullity”].) DSC concedes that the Grant board members failed to notify the remaining board members. As a result, the court found that actions taken by the Grant board members taken at and after the November 6, 2018 meeting on DSC’s behalf were invalid.

DSC also presented undisputed evidence it suffered damages of $6,600 (three months’ rent), about $5,900 in DSC funds improperly used to pay Weiss, and $1,500 for office equipment the Grant board members never returned. On this record, the trial court found DSC met its initial burden of proof.

The court rejected Grant’s contention that the board had only six members on November 6, 2018 (the Grant board members, Smith and Butterfield), because Fundenberg and Durand were no longer members of DSC’s board. It found the evidence showed Fundenberg had indicated an intention to resign from the board by that date, not that she actually had done so. Grant presented no evidence that Durand was no longer a board member.

The court also rejected Grant’s assertion that all board members were notified of the November 6, 2018 meeting, because the document on which he relied was neither signed nor authenticated. Further, the court observed that even if this evidence was admitted, the document would not constitute proper notice to Durand, who attended the November 4, 2018 meeting, and it was undisputed that Butterfield at least had been denied access to the November 6, 2018 telephonic meeting.

Grant does not challenge the trial court’s findings that the Grant board members failed to provide notice to other board members, nor that they were required to do so. Instead, without citation to supporting authority, Grant simply asserts the bylaws do not require the provision of notice to “a Board member whose actions are subject to Executive Committee or Board review and/or action, [nor do they] afford[] the opportunity to participate in meetings at which their actions are considered.” However, DSC’s bylaws and California law provide otherwise. (See Corp. Code, § 307, subd. (a)(2).) Because notice to all board members of the November 6, 2018 special meeting was required, but concededly not provided, actions taken by the Grant board members at and after the November 6, 2018 meeting were invalid. Summary judgment was appropriate.

//

//

//

//

//

//

DISPOSITION

The order in DSC v. Christopher Grant, et al. (L.A.S.C. case No. 18PSCV00187, granting the motion to disqualify Flyer from representing DSC’s board members Butterfield and Fundenberg is affirmed. The order in DSC v. David Butterfield, et al. (L.A.S.C. case No. 19PSCV00064) granting summary judgment is affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

COLLINS, J.

CURREY J.

[1] Paul Smith, the eighth board member, resigned on November 6, 2018 and is not a party in either action.

[2] Fundenberg was added by amendment as a Doe defendant, along with California’s then Attorney General, Xavier Becerra. The Attorney General has not been involved in the litigation.

[3] Claims for fraud and declaratory relief were dismissed.

[4] The trial court’s order states Flyer was disqualified from representing DSC. However, at the hearing on the second MTD, the court clarified that Flyer was disqualified from representing defendants Butterfield and Fundenberg. The court, which had not yet ruled on the motion for summary judgment, left for another day the determination whether Flyer also was disqualified from representing DSC. The record does not indicate whether or how the trial court resolved this issue.

[5] An order granting a motion to disqualify counsel based on an alleged conflict of interest is an appealable order. (See Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882; McMillan v. Shadow Ridge at Oak Park Homeowner’s Assn. (2008) 165 Cal.App.4th 960, 964.)

[6] Notably, Grant did not dispute that DSC is governed by its bylaws, and that he, like the other members of DSC’s board on November 4, 2018, owed fiduciary duties to DSC. He also did not dispute that the Grant board filed documents with the secretary of state after November 6, 2018, or that Grant board removed equipment from DSC’s offices.

[7] Because we resolve the contention on this basis, we need not decide whether the other required elements of collateral estoppel are met.

[8] The court rejected, for lack of foundation, testimony by Butterfield’s expert CPA, Alan Lurie, who opined that, based on his investigation of DSC’s financial records, Butterfield was a DSC employee, and that the recipients of the checks for “hours” and “payroll” were independent contractors. The court also rejected Butterfield’s declaration regarding purportedly authorized payments made by DSC to him and others as employees or independent contractors, concluding the evidence was insufficient to overcome DSC’s showing that the wage payments were unauthorized.

Butterfield also takes issue with the trial court’s evidentiary rulings as to portions of declarations Weiss and Grant submitted in support of the MTD. With respect to Weiss, Butterfield’s overruled objections relate primarily to Weiss’s opinions, hyperbole and purportedly insulting behavior toward Flyer. This is a nonissue. The court’s legal conclusion was not premised on any representation in Weiss’s declarations.

We also reject Butterfield’s assertion of error as to the trial court’s rulings on objections to portions of Grant’s initial and supplemental declarations. First, the ruling reflects the court found that any problems regarding Grant’s initial failure to submit sufficient evidence of Flyer’s conflict were cured by corroborating evidence submitted with his supplemental filing. Butterfield’s assertion that Grant lacked authority to opine on the propriety of Butterfield’s actions because Grant was no longer on DSC’s board misses the point. At issue was DSC’s contention that Flyer simultaneously represented parties with conflicting interests. As discussed above, the record contains overwhelming evidence that he did and was properly disqualified. The appellate court reviews a trial court’s rulings on evidentiary objections for abuse of discretion. (Mackey v. Trustees of California State University (2019) 31 Cal.App.5th 640, 657.) Butterfield has fallen far short of satisfying his “burden of establishing the court exceeded the bounds of reason.” (Ibid.)

[9] That the trial court did not expressly find a “conflict” in Flyer’s representation of Fundenberg is of no moment. Flyer’s representation of Fundenberg posed the same problem as his representation of Butterfield: like Butterfield, in Case No. 19, Fundenberg’s interests as a defendant were contrary to those of DCS in Case No. 18 seeking damages against her and Butterfield.

NOT TO BE PUBLISHED IN THE 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 FOUR

APPEAL from a judgment and order of the Superior Court of Los Angeles County, Gloria White-Brown, Judge. Affirmed.

Flyer and Flyer, David R. Flyer and Raquel Flyer Dachner for Defendants and Appellants David A. Butterfield and Louise Fundenberg.

Christopher Grant, in pro. per., for Defendant and Appellant Christopher Grant.

Abrams Garfinkel Margolis & Bergson, Kenneth F. Spencer, Joshua M. Webster and Michael J. Weiss for Plaintiff and Respondent.

These consolidated appeals concern two competing lawsuits brought in the name of a nonprofit charitable organization, Disability Services Corporation (DSC). The cases arise from a struggle between two rival factions of DSC’s board of directors (board) to control the corporation. In each of the two actions, one rival faction engaged separate counsel to file suit against the other rival faction for malfeasance in the management of DSC’s assets. Neither action is a shareholder derivative suit; in both DSC sues one board or the other in its individual corporate capacity.

The first case is DSC v. Christopher Grant, et al. (L.A.S.C. case No. 18PSCV00187, hereafter Case No. 18). It was filed on DSC’s behalf by the law firm Flyer and Flyer, and attorney David Flyer (collectively Flyer or Flyer’s firm). The complaint alleged that Christopher Grant and three other members of DSC’s board (the Grant board) violated DSC’s bylaws by, among other things, improperly reconstituting DSC’s board and creating false documents in order to misuse the entity’s offices and charitable funds. The trial court granted summary judgment in favor of DSC and against Grant, who was in pro. per. and was the only defendant to answer the complaint. Grant now appeals in pro. per. from the summary judgment in Case No. 18.

The second case, DSC v. David Butterfield, et al. (L.A.S.C. case No. 19PSCV00064, hereafter Case No. 19), was filed on DSC’s behalf by attorney Michael Weiss and his firm, Abrams Garfinkel Margolis & Bergson. The complaint in Case No. 19 alleged that David Butterfield (then-president of DSC’s board) engaged in the unauthorized use of DSC funds to purchase personal items and to hire and pay himself, his friends, and his family members. As individual defendants in this case, Butterfield and another board member, Louise Fundenberg, were represented by Flyer. As noted, Flyer was also counsel for DSC in Case No. 18 against the Grant board. Because of this simultaneous representation, the trial court granted a motion to disqualify Flyer from representing Butterfield and Fundenberg in Case No. 19. Butterfield and Fundenberg appeal from this disqualification ruling in Case No. 19.

For reasons explained below, we affirm both of the trial court’s rulings.

FACTUAL AND PROCEDURAL BACKGROUND

DSC is a non-profit organization formed in 1960 principally to serve the needs of children with learning disabilities. In October 2017, Butterfield was appointed president of DSC’s board. At that time, DSC’s bank accounts contained at least $350,000 from a charitable donation made to the organization.

Case No. 18: DSC v. the Grant Board

On December 17, 2018, Flyer filed Case No. 18 on behalf of DSC against the Grant board. The case was authorized on DCS’s behalf by Butterfield. Five causes of action were alleged: fraud, breach of fiduciary duty, conversion, money had and received, and commercial unlawful detainer. The complaint alleged that in early November 2018, in violation of DSC’s bylaws, the Grant board conducted a secret meeting without notifying or providing access to Butterfield and two other members of DSC’s eight-member board.^[1]

It was further alleged that the Grant board “created phony corporate documents which purportedly authorized them to perform official duties on behalf of [DSC].” After filing the documents with the California Secretary of State, the Grant board allegedly “took over [DSC’s] offices,” withdrew approximately $178,000 from DSC’s bank accounts (which they diverted to non-charitable purposes) and refused DSC’s demand to return the funds.

Case No. 19: DSC v. Butterfield and Fundenberg

On January 18, 2019, represented by attorney Michael Weiss and his firm, Abrams Garfinkel Margolis & Bergson law firm, DSC filed Case No. 19 against Butterfield and Fundenberg.^[2] The case was authorized on DSC’s behalf by the Grant board. As defendants in this lawsuit, Butterfield and Fundenberg were represented by Flyer (who was also representing DSC as the plaintiff in Case No. 18 against the Grant board).

As pertinent here, the complaint alleged claims for breach of fiduciary duty, conversion, and common counts for money had and received and accounting.^[3] DSC alleged that, after he was appointed board president, Butterfield engaged in misconduct in violation of DSC’s bylaws by, among other things, using DSC funds to buy a car and pay unauthorized tax-free wages to himself, his friends and his family members, and using DSC credit cards to pay for personal items and services. The complaint also alleged that Butterfield wrongfully denied the Grant board access to DSC business records and likely embezzled DSC’s funds.

DSC claimed that, on or about November 4, 2018, the Grant board became aware of Butterfield’s misdeeds. They called an emergency special board meeting for November 6, 2018 to address Butterfield’s misconduct and, on that date, voted to remove him from DSC’s board. Butterfield was notified of his removal and instructed to return all DSC property.

To prevent Butterfield from engaging in further malfeasance, one member of the Grant board ordered that the locks be changed on DSC’s offices. In addition, the Grant board, concerned that Butterfield retained access to DSC bank accounts, withdrew $177,818.39 from DSC’s accounts. On November 19, 2018, after Butterfield refused to accept his removal, the Grant board filed an amended Statement of Information form with the Secretary of State removing Butterfield as an officer of DSC.

Finally, DSC alleged that after Butterfield’s removal from the DSC board, attorney Flyer, in violation of the Rules of Professional Conduct, rules 1.7 and 1.13, actively assisted Butterfield in engaging in various wrongful acts in an effort to regain control of DSC and the remaining charitable funds. Those acts included the filing of Case No. 18 in DSC’s name against the Grant board. They also included the filing of a fraudulent Statement of Information with the Secretary of State that named Butterfield as DSC’s chief executive officer and that purported to remove the Grant board members from DSC’s board.

Case No. 19: First Motion to Disqualify

Flyer was simultaneously representing: (1) plaintiff DSC in Case No. 18 against the rival Grant board, in which the Grant board was charged with corporate malfeasance, and (2) defendants Butterfield and Fundenberg in Case No. 19, in which Butterfield and Fundenberg were charged with competing acts of corporate malfeasance.

On April 10, 2019, in Case No. 19, DSC filed its initial motion to disqualify (MTD) Flyer from representing Butterfield and Fundenberg as defendants in Case No. 19. In the MTD, DSC argued that “in an act of pure malice and retaliation, and without standing to do so,” Butterfield instructed Flyer to commence Case No. 18 on behalf of DSC against the Grant board. In filing and pursuing Case No. 18, Flyer allegedly also engaged in improper simultaneous representation of DSC as the plaintiff in Case No. 18, and of individual defendants Butterfield and Fundenberg in Case No. 19.

In opposition, Butterfield and Fundenberg argued DSC lacked standing to sue, because the Grant board had no authority to authorize such action. They also asserted that minutes of a January 20, 2019 meeting of DSC’s true board reflected a vote “rescinding” Weiss’s authority to prosecute Case No. 19 on DSC’s behalf. Instead, the board retained Flyer’s firm to represent Butterfield and Fundenberg in that action. Finally, Butterfield and Fundenberg argued that the Weiss declaration submitted in support of the MTD presented no admissible evidence of wrongdoing by Butterfield or Flyer.

On July 17, 2019, the MTD was argued. The court found DSC had failed to present admissible evidence of “adverse, conflicting interests” between DSC on the one hand, and Butterfield and Fundenberg on the other, and denied the motion without prejudice.

Case No. 19: Renewed Motion to Disqualify

On August 28, 2019, DSC filed a second MTD in Case No. 19, largely reiterating its earlier arguments, supported by the declarations of Grant and Weiss. DSC also informed the trial court that, in March 2018, Flyer had previously represented DSC in a federal action.

In opposition to the second MTD, Butterfield and Fundenberg argued: (1) DSC lacked standing to seek Flyer’s disqualification, (2) an attorney could properly represent an entity and its agent where, as here, there was no conflict of interest, and (3) DSC’s board had investigated the matter and determined there was no actual conflict of interest.

On November 5, 2019, at the hearing on the second MTD, the trial court expressed its “belie[f] that there probably [was] a conflict of interest” in Flyer’s simultaneous representation of DSC as plaintiff in Case No. 18, and Butterfield and Fundenberg as defendant’s in Case No. 19. However, the court found again that Grant had failed to submit competent evidence to support a finding that a conflict in fact existed. On its own motion, the court continued the hearing to permit Grant to produce admissible evidence showing the existence of adverse, conflicting interests.

Grant and Weiss submitted supplemental declarations. The declarations were accompanied by “timesheets” that Butterfield and his friends and family members presented to DSC in fall 2018. The declarations were also accompanied by copies of bank statements and approximately 50 checks reflecting payments of over $29,000 made by DSC to these individuals. Many checks contained the designations “payroll” and “hours,” but no tax or other withholdings had been taken from wages paid. DSC also submitted evidence of cash withdrawals Butterfield made for personal use. Finally, DSC submitted a copy of a March 2018 agreement by which DSC had retained Flyer to represent it in a prior action in federal court.

The trial court found this evidence sufficient to support the allegation that Butterfield had “hired and paid employees without the Board’s authorization in violation of DSC’s bylaws.” This evidence was “significant because it demonstrate[d] that a conflict between DSC and its former president, . . . Butterfield, ha[d] arisen.” As such, the court concluded that Flyer was disqualified from representing Butterfield and Fundenberg in Case No. 19, and granted the MTD.^[4]

Butterfield and Fundenberg appeal from the order disqualifying Flyer from representing them.^[5] In their opening brief, they state that the parties agreed to stay Case No. 19 pending the outcome of this appeal.

Case No. 18—Motion for Summary Judgment

In April 2020, in Case No. 18, DSC (represented by Flyer) filed a “Motion for Summary Judgment,” supported by six declarations from DSC board members, and a declaration from an attorney in Flyer’s firm. DSC also filed a “Separate Statement in Support of [the motion for summary judgment],” and a Request for Judicial Notice.

DSC argued that undisputed evidence established that the Grant board had breached its fiduciary duties, committed conversion, and improperly retained funds intended for DSC’s benefit. The gist of DSC’s motion was that the Grant board members breached their fiduciary duties by failing to provide notice of or access to the November 6, 2018 special meeting to Butterfield and Fundenberg and two other board members, as required by DSC’s bylaws and California law. As a result, Butterfield and Fundenberg argued that all actions taken by Grant board at and after the November 6, 2018 meeting were unauthorized and invalid. Those invalid actions included the Grant board’s creation of improper authorization documents filed with the Secretary of State, withdrawal of approximately $178,000 from DSC’s bank accounts, assumption of control over DSC’s offices for three months, conversion of DSC property contained therein, and unauthorized retention of and payments to Weiss’s firm.

Grant, the only defendant in Case No. 18 to answer the complaint, opposed the summary judgment motion. On April 28, 2020, Grant (who has been self-represented throughout this litigation), filed a document entitled “Objection to [DSC’s] Motion for Summary Judgment” (Objection). Grant did not submit a separate statement.

The hearing on the motion for summary judgment began on June 25, 2020. The trial court observed that Grant’s Objection did not comply with the requirements of the California Rules of Court, rule 3.1354(b) regarding objections to evidence. Nevertheless, on its own motion, the court agreed to construe Grant’s Objection as his points and authorities in opposition to the motion for summary judgment. On its own motion, the court also continued the hearing to August 12, 2020 and directed Grant to file a separate statement by July 10, 2020.

On July 9, 2020, Grant filed a separate statement that disputed and or objected to the majority of DSC’s 49 purportedly undisputed facts.^[6] However, Grant presented no additional disputed facts. Grant also submitted a 169-page “Response” to DSC’s motion for summary judgment which included declarations from each Grant board member and 26 exhibits. On July 17, 2020, DSC filed its supplemental reply and objections to Grant’s declaration.

The summary judgment motion was argued on August 12, 2020. The trial court considered Grant’s Objection and separate statement. However, the court declined to consider Grant’s voluminous July 9, 2020 “Response” because it “exceed[ed] the scope of the court’s June 25, 2020 minute order.” Addressing the merits, the trial court found that DSC satisfied its initial burden of proof, but Grant failed to present evidence demonstrating the existence of a material factual dispute. The motion was granted, and judgment subsequently entered in favor of DSC for $14,016.35. Grant timely appealed. We granted Butterfield’s request to consolidate the two appeals.

DISCUSSION

1. Case No. 19: The Motion to Disqualify

Butterfield and Fundenberg argue that the trial court erred when it disqualified Flyer from representing them in Case No. 19. They maintain that (1) DCS lacked standing to have Flyer disqualified, because the Grant board lacked authority to initiate such action in Case No. 19 on DSC’s behalf, (2) in light of the court’s grant of summary judgment in Case No. 18, the doctrine of collateral estoppel requires reversal of the order disqualifying Flyer in Case No. 19, and (3) the evidence and law do not support Flyer’s disqualification in Case No. 19. We reject these contentions.

The Standard of Review

Broadly speaking, a trial court’s decision on a disqualification motion is reviewed for abuse of discretion. (Doe v. Yim (2020) 55 Cal.App.5th 573, 581.) Under this standard, we review the court’s legal conclusions de novo, and review its factual findings for the existence of substantial supporting evidence. (Ibid.) If substantial evidence supports the trial court’s factual findings, we review its conclusions based on those findings for abuse of discretion. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712 (Haraguchi); Bridgepoint Construction Services, Inc. v. Newton (2018) 26 Cal.App.5th 966, 969 (Bridgepoint).)

1. Standing to Seek Flyer’s Disqualification

We reject Butterfield and Fundenberg’s argument that the Grant board members were no longer “true” members of DSC’s board, and that therefore DCS had no standing in Case No. 19 to bring a motion in DSC’s name to disqualify Flyer. “A complaining party who files a motion to disqualify is required to have standing.” (Blue Water Sunset, LLC v. Markowitz (2011) 192 Cal.App.4th 477, 485 (Blue Water).) Standing may be conferred if the complaining party has a past or present attorney-client relationship with the attorney targeted by the motion. (Id. at p. 487 [“f an attorney simultaneously represents two clients with adverse interests, automatic disqualification is the rule”].)

2. [i]Collateral Estoppel

In Case No. 18, the trial court granted summary judgment on DSC’s complaint against the Grant board. The court found, in substance, that Grant raised no triable issue of fact to dispute that the Grant board’s purported take-over of DCS and later actions, as alleged in the complaint, violated DCS’s bylaws and the California Corporations Code. In our discussion of Grant’s appeal from the ruling, in part II of our opinion, we affirm the ruling.

However, we disagree with Butterfield and Fundenberg that under the doctrine of collateral estoppel, the summary judgment in Case No. 18 requires reversal of the trial court’s disqualification ruling in Case No. 19. The doctrine of collateral estoppel operates to prevent the relitigation of issues previously adjudicated in another action. (In re Marriage of Furie (2017) 16 Cal.App.5th 816, 827–828.) The test for the application of the doctrine requires, among other things, that the issue be identical to the one sought to be relitigated, which was necessarily decided in a prior action. (Ibid.; Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.) At the time the trial court ordered Flyer disqualified, both Case Nos. 18 and 19 were pending. The issue decided by the motion to disqualify in Case No. 19 did not address the merits of the two lawsuits and the question who had corporate control, but whether in the two competing lawsuits yet to be litigated, Flyer was simultaneously representing multiple clients who had adverse interests. That was not the issue decided by the grant of summary judgment. Of course, DSC’s summary judgment motion had not yet been filed, let alone ruled on. Moreover, the later grant of summary judgment against Grant in Case No. 18 did not obviate Flyer’s simultaneous representation of clients with adverse interests in Case Nos. 18 and 19, before the summary judgment.^[7]

D. The Disqualification Ruling

As we have noted, “it is a violation of the duty of loyalty for the attorney to assume a position adverse or antagonistic to his or her client without the client’s free and intelligent consent given after full knowledge of all the facts and circumstances. [Citation.]” (State Farm Mutual Automobile Ins. Co. v. Federal Ins. Co. (1999) 72 Cal.App.4th 1422, 1431.)

In Forrest v. Baeza (1997) 58 Cal.App.4th 65, the court observed that, in contrast to cases involving successive representation of clients with potentially adverse interests, “‘[t]he primary value at stake in cases of simultaneous or dual representation is the attorney’s duty—and the client’s legitimate expectation—of loyalty, rather than confidentiality.’ (Flatt v. Superior Court [(1994)] 9 Cal.4th [275] at p. 284.) ‘“[R]epresentation adverse to a present client must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each of his clients.’” [Citation.] [¶] ‘n all but a few instances, the rule of disqualification in simultaneous representation cases is a [i]per se or “automatic” one. [Citations.] [¶] . . . The strict proscription against dual representation of clients with adverse interests thus derives from a concern with protecting the integrity of the attorney-client relationship rather than from concerns with the risk of specific acts of disloyalty or diminution of the quality of the attorney’s representation.” (Forrest, supra, at p. 74.)

Here, in support of its request for Flyer’s disqualification, DSC presented evidence that its board lacked a signed retainer with Flyer’s firm. DSC also presented copies of 50 checks signed by Butterfield between July 2018 and 2019, evidencing tax-free salary and wage payments of over $29,000 to Butterfield and his family members and friends. It also presented evidence that Butterfield hired and paid these individuals without authorization and in violation of DSC’s bylaws.

The court found this that this evidence “demonstrate[d] that a conflict between DSC and its former president, . . . Butterfield, ha[d] arisen. As such, [Flyer] [was] not [permitted to] represent both DSC and . . . Butterfield.”^[8] The trial court rejected Butterfield’s representation that he was an employee of DSC in January 2019, that another board member had approved one individual’s employment, and two others had worked as independent contractors.

The trial court’s factual findings are supported by substantial evidence (the evidence submitted by DSC), and buttressed by the court’s credibility findings (rejecting Butterfield’s evidence). Therefore, we review the court’s disqualification of Flyer premised on those findings for abuse of discretion. (See Haraguchi, supra, 43 Cal.4th at pp. 711–712; Bridgepoint, supra, 26 Cal.App.5th at p. 969.)

On the facts as found by the court, the court reasonably concluded that Flyer was disqualified from representing both DSC as plaintiff in Case No. 18 and individual defendants Butterfield and Fundenberg being sued by DSC in Case No. 19. In short, Flyer was simultaneously representing clients with adverse interests: in Case No. 18, he represented DSC in its action against the Grant board; in Case No. 19, he represented Butterfield and Fundenberg, rivals of the Grant board, in DCS’s action against them. Where, as here, a member of a company’s board is accused of wrongdoing, the same attorney may not represent both the corporation and the accused board member, nor may the company’s directors waive the inherent conflict of interest. (See Blue Water, supra, 192 Cal.App.4th at pp. 486–487 [the same law firm may not represent a company and company insiders alleged to have committed fraud whose interests are adverse and conflicting]; Gong v. RFG Oil, Inc. (2008) 166 Cal.App.4th 209, 214–215.) The trial court did not abuse its discretion in disqualifying Flyer from representing Butterfield and Fundenberg as defendants in Case No. 19, based on the conflict of interest created by his simultaneous representation of DSC as plaintiff in Case No. 18.^[9]

2. Case No. 18: Summary Judgment

1. Standard of Review and Controlling Law

The fundamental purpose of a summary judgment motion is to provide the trial court a mechanism to cut through the parties’ pleadings and determine whether material factual issues exist such that a trial is necessary to resolve the dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; Yanez v. Plummer (2013) 221 Cal.App.4th 180, 186.)

To that end, a basic requirement is that the papers supporting a motion for summary judgment “shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.” (Code Civ. Proc., § 437c, subd. (b)(1).) Each material fact in the separate statement must be accompanied by reference to the evidence supporting that fact. (Ibid.) “The separate statement is not merely a technical requirement, it is an indispensable part of the summary judgment or adjudication process,” and “failure to comply with this requirement sufficient grounds to grant the motion.” (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.)

Similarly, a party opposing a motion for summary judgment must file its own “separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed[,] . . . followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civil Proc., § 437c, subd. (b)(3), italics added; see also Cal. Rules of Court, rule 3.1350(e)(2).) “‘We review the ruling on a motion for summary judgment de novo, applying the same standard as the trial court.’ [Citation.]” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76.)

Grant’s Separate Statement

Grant maintains the court erred not considering his “July 9th responding Separate Statement [because it] exceeded the scope of the court’s June 25, 2020 minute order.” Grant misstates the trial court’s ruling. The trial court did consider the separate statement Grant submitted on July 9. What the court declined to consider was Grant’s belated 169-page “Response” to DSC’s motion for summary judgment, which included declarations from each Grant board member and 26 exhibits.

In any event, the trial court did not err in refusing to consider Grant’s “Response.” The court exercised its discretion to construe Grant’s inappropriate “Objection to [DSC’s] Motion for Summary Judgement,” as what he should have filed, an “opposing memorandum of points and authorities.” Further, after admonishing Grant that, as a self-represented party, he was held to the same standard as an attorney, the court also continued the hearing to give him additional time to file a compliant separate statement. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [Pro. per. litigants are held to the same standards as attorneys]). The court’s June 25 order did not afford Grant carte blanche to submit additional briefing or a voluminous mass of undifferentiated evidence, and the court was not required to consider it. (Cf., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [observing that summary judgment motion was plagued by “reply papers [that] included a 297-page reply separate statement,” which is not provided for by statute].)

2. Summary Judgment

The trial court found DSC satisfied its burden and was entitled to summary judgment based on the following.

It is undisputed that DSC is governed by bylaws. Section 11 of DSC’s bylaws requires that:

“b) Special meetings of the Board shall be held upon seven (7) days’ notice by first-class mail or forty-eight (48) hours’ notice delivered personally or by telephone or by email. . . . Such notices shall be addressed to each Director at his or her address . . . . Notice shall be given of any . . . special meeting to Directors absent from the original meeting. . . .

“c) Notice of meetings shall specify the place, day, and hour of the meeting. The purpose of any Board meeting shall be specified in the notice.” (Italics added.)

On November 4, 2018, DSC’s eight-member board was comprised of the four Grant board members, Butterfield, Fundenberg, Durand and Smith (who resigned). The evidence showed that Durand been excused from attending some meetings but remained qualified to vote. Fundenberg had been ill and unable to attend board meetings the two preceding months. However, she participated in the November 4, 2018 board meeting and resumed her position as treasurer.

Grant concedes that he, like the other members of DSC’s board on November 4, 2018, owed fiduciary duties to DSC. On November 6, 2018, the four Grant board members conducted a special meeting. In violation of DSC’s bylaws, Durand, Butterfield and Fundenberg were not provided notice of the November 6, 2018 meeting, and Butterfield and Fundenberg were denied access to that meeting. Corporations Code section 307, subdivision (a)(2) mandates that a corporation’s “bylaws may not dispense with notice of a special meeting.” (Italics added.)

On November 8, 2018, the Grant board members withdrew substantial funds from DSC’s accounts and created a new Statement of Information, which they filed with the Secretary of State and used to open new bank accounts on behalf of DSC. The Grant board members assumed control of DSC’s offices and used the entity’s funds to change locks, purchase computers and other property, and to retain Weiss’s firm to represent DSC in a case against Butterfield. Grant concedes that the Grant board members filed documents with the secretary of state after the meeting on November 6, 2018 on behalf of DSC and that they removed equipment from DSC’s offices. The record of the summary judgment motion contains no indication that the Grant board members were authorized to file a new Statement of Information on behalf of DSC, or to retain Weiss’s firm.

California law provides that “[s]pecial meetings of the board shall be held upon four days’ notice by mail or 48 hours’ notice delivered personally or by telephone . . . . The articles or bylaws may not dispense with notice of a special meeting.” (Corp. Code, § 307, subd. (a)(2); see also Grant v. Hartman Ranch Co. (1961) 193 Cal.App.2d 497, 501 [holding that defective notice rendered board meeting invalid]; Thompson v. Williams (1888) 76 Cal. 153, 154–155 [“Each director must have special notice of the regular meetings of the board of directors of the corporation defendant,” and actions taken in the absence of such notice and nonattending board members are “without authority and . . . a nullity”].) DSC concedes that the Grant board members failed to notify the remaining board members. As a result, the court found that actions taken by the Grant board members taken at and after the November 6, 2018 meeting on DSC’s behalf were invalid.

DSC also presented undisputed evidence it suffered damages of $6,600 (three months’ rent), about $5,900 in DSC funds improperly used to pay Weiss, and $1,500 for office equipment the Grant board members never returned. On this record, the trial court found DSC met its initial burden of proof.

The court rejected Grant’s contention that the board had only six members on November 6, 2018 (the Grant board members, Smith and Butterfield), because Fundenberg and Durand were no longer members of DSC’s board. It found the evidence showed Fundenberg had indicated an intention to resign from the board by that date, not that she actually had done so. Grant presented no evidence that Durand was no longer a board member.

The court also rejected Grant’s assertion that all board members were notified of the November 6, 2018 meeting, because the document on which he relied was neither signed nor authenticated. Further, the court observed that even if this evidence was admitted, the document would not constitute proper notice to Durand, who attended the November 4, 2018 meeting, and it was undisputed that Butterfield at least had been denied access to the November 6, 2018 telephonic meeting.

Grant does not challenge the trial court’s findings that the Grant board members failed to provide notice to other board members, nor that they were required to do so. Instead, without citation to supporting authority, Grant simply asserts the bylaws do not require the provision of notice to “a Board member whose actions are subject to Executive Committee or Board review and/or action, [nor do they] afford[] the opportunity to participate in meetings at which their actions are considered.” However, DSC’s bylaws and California law provide otherwise. (See Corp. Code, § 307, subd. (a)(2).) Because notice to all board members of the November 6, 2018 special meeting was required, but concededly not provided, actions taken by the Grant board members at and after the November 6, 2018 meeting were invalid. Summary judgment was appropriate.

//

//

//

//

//

//

DISPOSITION

The order in DSC v. Christopher Grant, et al. (L.A.S.C. case No. 18PSCV00187, granting the motion to disqualify Flyer from representing DSC’s board members Butterfield and Fundenberg is affirmed. The order in DSC v. David Butterfield, et al. (L.A.S.C. case No. 19PSCV00064) granting summary judgment is affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

COLLINS, J.

CURREY J.

[1] Paul Smith, the eighth board member, resigned on November 6, 2018 and is not a party in either action.

[2] Fundenberg was added by amendment as a Doe defendant, along with California’s then Attorney General, Xavier Becerra. The Attorney General has not been involved in the litigation.

[3] Claims for fraud and declaratory relief were dismissed.

[4] The trial court’s order states Flyer was disqualified from representing DSC. However, at the hearing on the second MTD, the court clarified that Flyer was disqualified from representing defendants Butterfield and Fundenberg. The court, which had not yet ruled on the motion for summary judgment, left for another day the determination whether Flyer also was disqualified from representing DSC. The record does not indicate whether or how the trial court resolved this issue.

[5] An order granting a motion to disqualify counsel based on an alleged conflict of interest is an appealable order. (See Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882; McMillan v. Shadow Ridge at Oak Park Homeowner’s Assn. (2008) 165 Cal.App.4th 960, 964.)

[6] Notably, Grant did not dispute that DSC is governed by its bylaws, and that he, like the other members of DSC’s board on November 4, 2018, owed fiduciary duties to DSC. He also did not dispute that the Grant board filed documents with the secretary of state after November 6, 2018, or that Grant board removed equipment from DSC’s offices.

[7] Because we resolve the contention on this basis, we need not decide whether the other required elements of collateral estoppel are met.

[8] The court rejected, for lack of foundation, testimony by Butterfield’s expert CPA, Alan Lurie, who opined that, based on his investigation of DSC’s financial records, Butterfield was a DSC employee, and that the recipients of the checks for “hours” and “payroll” were independent contractors. The court also rejected Butterfield’s declaration regarding purportedly authorized payments made by DSC to him and others as employees or independent contractors, concluding the evidence was insufficient to overcome DSC’s showing that the wage payments were unauthorized.

Butterfield also takes issue with the trial court’s evidentiary rulings as to portions of declarations Weiss and Grant submitted in support of the MTD. With respect to Weiss, Butterfield’s overruled objections relate primarily to Weiss’s opinions, hyperbole and purportedly insulting behavior toward Flyer. This is a nonissue. The court’s legal conclusion was not premised on any representation in Weiss’s declarations.

We also reject Butterfield’s assertion of error as to the trial court’s rulings on objections to portions of Grant’s initial and supplemental declarations. First, the ruling reflects the court found that any problems regarding Grant’s initial failure to submit sufficient evidence of Flyer’s conflict were cured by corroborating evidence submitted with his supplemental filing. Butterfield’s assertion that Grant lacked authority to opine on the propriety of Butterfield’s actions because Grant was no longer on DSC’s board misses the point. At issue was DSC’s contention that Flyer simultaneously represented parties with conflicting interests. As discussed above, the record contains overwhelming evidence that he did and was properly disqualified. The appellate court reviews a trial court’s rulings on evidentiary objections for abuse of discretion. (Mackey v. Trustees of California State University (2019) 31 Cal.App.5th 640, 657.) Butterfield has fallen far short of satisfying his “burden of establishing the court exceeded the bounds of reason.” (Ibid.)

[9] That the trial court did not expressly find a “conflict” in Flyer’s representation of Fundenberg is of no moment. Flyer’s representation of Fundenberg posed the same problem as his representation of Butterfield: like Butterfield, in Case No. 19, Fundenberg’s interests as a defendant were contrary to those of DCS in Case No. 18 seeking damages against her and Butterfield.