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1 Christopher Wimmer (SBN 263275)
473 Jean Street #305 ELECTRONICALLY
2 Oakland, California 94610
(415) 683-8867 F I L E D
3 Superior Court of California,
chris@wimmer.law County of San Francisco
4 04/22/2020
Attorney for Defendants and Cross-Complainants Clerk of the Court
5 COLTON CALLAHAN and MICHAEL CALLAHAN
BY: ERNALYN BURA
Deputy Clerk
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 FOR THE COUNTY OF SAN FRANCISCO
9 UNLIMITED JURISDICTION
10
ELLIOTT TAYLOR, RON TAYLOR, ET Case No. CGC-18-567657
11
ASSETS, LLC and 2441-2449 2ND STREET
12 LLC, COLTON CALLAHAN AND MICHAEL
Plaintiffs, CALLAHAN’S MEMORANDUM OF
13 POINTS AND AUTHORITES IN
v. OPPOSITION TO MOTION TO
14 DISQUALIFY COUNSEL
COLTON CALLAHAN, MICHAEL
15
CALLAHAN, and DOES 1 through 20, inclusive, Hearing Date: May 5, 2020
16 Defendants, Hearing Time: 9:30 a.m.
Judge: Hon. Ethan P. Schulman
17 and Department: 302
ST6 HOLDINGS, LLC, and GREENER Reservation: 03230505-07
18 FUTURE, LLC, Action Filed: June 26, 2018
Nominal Defendants. Trial Date: Not set
19
COLTON CALLAHAN and MICHAEL
20 CALLAHAN,
Cross-Complainants
21
v.
22
23 ELLIOT TAYLOR, RON TAYLOR, 2441-2449
2ND STREET LLC, TERRA NOVA
24 INDUSTRIES, INC., ET ASSETS, LLC and
ROES 1 through 20, inclusive,
25 Cross-Defendants,
26 and
27 ST6 HOLDINGS, LLC, and GREENER
FUTURE, LLC,
28 Nominal Defendants.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 TABLE OF CONTENTS
2
3 I. INTRODUCTION ......................................................................................................................... 1
4 II. FACTUAL BACKGROUND ....................................................................................................... 2
5 A. The Callahans Retain Mr. Wimmer to Represent Greener Future and ST6 Against the
6 Taylors ..................................................................................................................................... 2
7 B. The Taylors Move to Disqualify Mr. Wimmer from Representing the Entities ..................... 3
8 C. The Callahans Retain Mr. Wimmer to Represent Them Against the Taylors ........................ 3
9 D. Procedural History................................................................................................................... 4
10 III. ARGUMENT ................................................................................................................................ 4
11 A. Legal Standards ....................................................................................................................... 4
12 B. The Taylors Lack Standing to Bring This Motion .................................................................. 6
13 C. The Callahans Are Not Materially Adverse to Greener Future and ST6 ................................ 7
14 D. Mr. Wimmer’s Prior Representation of Greener Future and ST6 Is Not a Basis for
15 Disqualification ....................................................................................................................... 8
16 E. Mr. Wimmer Is Not Violating the Witness Advocate Rule .................................................. 10
17 IV. CONCLUSION ........................................................................................................................... 12
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i.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 TABLE OF AUTHORITIES
2 Cases
3 Angelucci v. Century Supper Club, 41 Cal. 4th 160 (2007) .............................................................. 4
4 DCH Health Services Corp. v. Waite, 95 Cal. App. 4th 829 (2002) ................................................. 4
5 Dino v. Pelayo, 145 Cal. App. 4th 347 (2006) .................................................................................. 5
6 Gong v. RFG Oil, Inc., 166 Cal. App. 4th 209 (2008) .................................................................. 5, 9
7 Great Lakes Constr., Inc. v. Burman, 186 Cal. App. 4th 1347 (2010) ..................................... 4, 5, 7
8 Lyle v. Superior Court, 122 Cal. App. 3d 470 (1981) ................................................................. 6, 10
9 Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp., 36 Cal. App. 4th 1832 (1995)............................... 9
10 Strasbourger Pearson Tulcin Wolff Inc. v. Wiz Technology, Inc., 69 Cal. App. 4th 1399 (1999) .... 4
11 Woods v. Superior Court, 149 Cal. App. 3d 931 (1983) ................................................................. 10
12 Rules
13 Cal. Rule Prof’l Conduct 1.9 ......................................................................................................... 5, 7
14 Cal. Rule Prof’l Conduct 3.7 ....................................................................................................... 6, 10
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ii.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 I. INTRODUCTION
2 Plaintiffs and Cross-Defendants Elliott Taylor, Ron Taylor, ET Assets, LLC, and 2441-
3 2449 2nd Street (together, the “Taylors”) have moved to disqualify the undersigned, Christopher
4 Wimmer, from acting as counsel for Defendants and Cross-Complainants Colton Callahan and
5 Michael Callahan (together, the “Callahans”). The motion completely ignores the applicable legal
6 standards, and none of the bases for disqualification raised by the Taylors has any merit.
7 First, the Taylors lack standing to bring this motion, because none of them is a former client
8 of Mr. Wimmer or ever shared any confidences with him.
9 Second, because Mr. Wimmer has never served as counsel to the Taylors, there is no
10 conflicting successive representation. He briefly represented Greener Future, LLC (“Greener
11 Future”) and ST6 Holdings, LLC (“ST6”) in this action by filing an answer to the Taylors’
12 complaint against those entities. While the Taylors incorrectly claim that representation was
13 improper because it was not authorized by Elliott Taylor (“Elliott”), they have no explanation for
14 how representing these entities against the Taylors creates a conflict that disables Mr. Wimmer
15 from now representing the Callahans—also against the Taylors.
16 Third, even if Mr. Wimmer’s representation of Greener Future and ST6 and his refusal to
17 provide Elliott with the few documents from that representation were improper, those are not bases
18 for disqualification.
19 Last, Mr. Wimmer will not likely serve as a witness in this action. He has no personal
20 knowledge of any fact concerning the Callahans’ and Taylors’ business relationship or dispute, and
21 the facts concerning his brief representation of Greener Future and ST6 in this action are not
22 relevant to any claim or defense. Marc Mazer of Weill Mazer, the Taylors’ counsel, cannot say the
23 same.
24 The motion to disqualify should be denied.
25
26
27
28
1.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 II. FACTUAL BACKGROUND
2 A. The Callahans Retain Mr. Wimmer to Represent Greener Future and ST6
3 Against the Taylors
4 Colton Callahan (“Colton”) and Mr. Wimmer met around October 2018, when Colton
5 contacted Mr. Wimmer through LinkedIn. They spoke in general terms about some cannabis
6 industry projects Colton was working on, as well as his dispute with the Taylors over their joint
7 venture to obtain cannabis licenses and real properties in Napa and elsewhere in California (the
8 “Project”). Mr. Wimmer was not then taking on litigation matters, and referred Colton to Peter
9 Roldan and Johnny Yeh at Emergent LLP. The Callahans retained Emergent to represent them in
10 this action in December 2018. Wimmer Decl. ¶ 4.
11 In August 2019, Colton contacted Mr. Wimmer about filing responses on behalf of Greener
12 Future and ST6 to the Taylors’ February 15, 2019 Second Amended Complaint (“SAC”). The
13 entities had not responded to the SAC, even though that pleading named the entities and sought to
14 establish they had no ownership interest in the Project, and it was possible the Taylors might seek
15 to enter default and obtain judgment. The Callahans and Mr. Wimmer agreed the initial
16 representation of the entities would only be for the purpose of filing an answer to the Taylors’
17 SAC. The Taylors’ and Callahans’ counsel were discussing potential settlement negotiations; if
18 they were not fruitful, the Callahans and Mr. Wimmer agreed they would discuss whether further
19 representation of the entities was necessary. Wimmer Decl. ¶ 5.
20 In preparing the answers to the SAC, Mr. Wimmer spoke to Colton three or four times, and
21 exchanged a few short emails with him providing drafts of the answers. On August 28, 2019, Mr.
22 Wimmer filed Greener Future’s and ST6’s answers to the Taylors’ SAC. Wimmer Decl. ¶¶ 6-7 &
23 Mot. RJN. Exhs. F & G.1
24
25
26
27
1
“RJN” is the request for judicial notice in support of this opposition; “Mot. RJN” is the Taylors’
28 request for judicial notice in support of their motion.
2.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 B. The Taylors Move to Disqualify Mr. Wimmer from Representing the Entities
2 The day Mr. Wimmer filed the answers, the Taylors’ counsel, Mr. Mazer, demanded Mr.
3 Wimmer withdraw as counsel for the entities and turn over his entire file on the matter or Elliott
4 would be “filing an appropriate claim against you.” Mr. Wimmer responded the next day,
5 explaining he believed Elliott had withdrawn from Greener Future and ST6 through his court
6 filings and that, even if he had not withdrawn, given the original 50-50 split in ownership, Elliott
7 would not have had authority to discharge him over Colton’s objection. Mr. Wimmer also asked
8 Mr. Mazer to explain the basis of the legal claims he threatened. Mr. Mazer refused to do so, and
9 instead confirmed his intent to sue—which Mr. Wimmer noted would be sanctionable conduct.
10 Wimmer Decl. ¶ 8 & Exh. A.
11 On October 2, 2019, instead of filing suit, the Taylors moved to disqualify Mr. Wimmer as
12 counsel for Greener Future and ST6. In their memorandum of points and authorities in support of
13 that motion, the Taylors argued that neither Elliott nor Colton could retain counsel for the entities,
14 because they were deadlocked. Wimmer Decl. ¶ 9; RJN Exh C at 1:8-10; 5:1-4. The Taylors also
15 argued that there was no need for the entities to respond to the pleadings against them or have
16 independent representation. RJN Exh. C at 8:11-18. Mr. Wimmer concluded that, having made
17 these arguments, the Taylors would not be permitted to later shift course and pursue their contract
18 and fraud claims against the entities, so no further action on behalf of the entities was necessary.
19 As a result, and consistent with his initial conversations with Colton that the representation was
20 only to ensure the Taylors did not take a default against Greener Future and ST6, on October 25,
21 2019 Mr. Wimmer filed a statement of non-opposition to the motion. RJN Exh. D.
22 On November 5, 2019, the court granted the motion to disqualify because it “was not
23 opposed.” RJN Exh. E.
24 C. The Callahans Retain Mr. Wimmer to Represent Them Against the Taylors
25 On February 25, 2020, the Taylors and Callahans mediated this dispute before the Hon.
26 James McBride (ret.). Mediation was unsuccessful, and on March 6, the Callahans retained Mr.
27 Wimmer to represent them in this action. Mr. Wimmer substituted into this action as counsel for
28 the Callahans on March 17. Wimmer Decl. ¶ 11.
3.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 D. Procedural History
2 The day Mr. Wimmer entered his appearance, Mr. Mazer indicated the Taylors might move
3 to disqualify him from acting as counsel for the Callahans “on various grounds including, but not
4 limited to, as having represented both Greener Future and ST6 in this proceeding and having
5 conflicts and other grounds. . . . . In addition, you are now a material witness as having involved
6 yourself in this dispute over the objections of my client.” Mr. Wimmer responded that day, asking
7 Mr. Mazer to meet and confer before filing the motion, so that Mr. Wimmer could consider the
8 Taylors’ arguments. Mr. Mazer never did so. Wimmer Decl. ¶ 12 & Exh. B.
9 On March 31, Mr. Mazer emailed Mr. Wimmer and repeated his request to turn over the file
10 from the representation of Greener Future and ST6. Though Mr. Mazer had never met and
11 conferred with Mr. Wimmer about the disqualification motion, he indicated he had reserved a
12 hearing. On April 1, the Taylors filed this motion. Wimmer Decl. ¶ 13 & Exh. C.
13 III. ARGUMENT
14 The Taylors lack standing to bring this motion. They also have presented no evidence of a
15 conflict between the Callahans and the Greener Future and ST6 entities, or any reason to believe
16 Mr. Wimmer will violate the advocate rule. The motion should be denied.
17 A. Legal Standards
18 A party may only move to disqualify counsel if he has standing. As the Taylors’ primary
19 authority explains (but their motion omits):
20 Standing generally requires that the plaintiff be able to allege injury, that is, an
invasion of a legally protected interest. A “standing” requirement is implicit in
21 disqualification motions. Generally, before the disqualification of an attorney is
proper, the complaining party must have or must have had an attorney-client
22 relationship with that attorney.
23 Great Lakes Constr., Inc. v. Burman, 186 Cal. App. 4th 1347, 1356 (2010) (citing Angelucci v.
24 Century Supper Club, 41 Cal. 4th 160, 175 (2007) and Strasbourger Pearson Tulcin Wolff Inc. v.
25 Wiz Technology, Inc., 69 Cal. App. 4th 1399, 1404 (1999)). The only other basis for
26 disqualification is if the moving party has “an expectation of confidentiality” that the challenged
27 attorney’s representation would violate. Id. (citing DCH Health Services Corp. v. Waite, 95 Cal.
28 App. 4th 829 (2002)). But “some sort of confidential or fiduciary relationship must exist or have
4.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 existed before a party may disqualify an attorney predicated on the actual or potential disclosure of
2 confidential information.” Id. (citing Dino v. Pelayo, 145 Cal. App. 4th 347 (2006)).
3 Assuming standing, the standard for a disqualification motion depends on whether the case
4 involves concurrent or successive representations. As another of the Taylors’ authorities explains
5 (but their motion again omits):
6 In evaluating alleged conflicts, a court first looks to whether the representation at
issue is simultaneous or successive. Where an attorney successively represents one
7 client following the prior representation of another client, the concern is to enforce
the duty of confidentiality owed to the former client. In contrast, where the same
8 attorney simultaneously represents potentially conflicting parties, the primary
interest at stake is the attorney’s duty of loyalty.
9
10 Gong v. RFG Oil, Inc., 166 Cal. App. 4th 209, 214 (2008).
11 This is a successive representation case, because Mr. Wimmer represented Greener Future
12 and ST6 between August and November 2019, and in March 2020 began to represent the
13 Callahans. In such a case, Rule 1.9(a) (former 3-310(E)), which the Taylors’ motion does not cite,
14 applies:
15 A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
16 person’s interests are materially adverse to the interests of the former client unless
the former client gives informed written consent.
17
18 Cal. Rule Prof’l Conduct 1.9 (footnotes omitted).2
19 The Taylors contend Mr. Wimmer is also subject to disqualification as a witness advocate,
20 but (yet again) do not even refer to the applicable legal standard. It is found in Rule 3.7:
21 (a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be
a witness unless:
22
(1) the lawyer’s testimony relates to an uncontested issue or matter;
23
24
2
Although the Taylors’ primary authority, Great Lakes Construction, conclusively establishes the
25 Taylors lack standing to bring this motion (see pages 6:16-7:10 below), it is inapt on the question
of conflicts. Great Lakes is a concurrent representation case, not a successive representation case
26 like this one, and only addresses the standards for disqualification “[i]n concurrent or joint
representation cases . . . .” 186 Cal. App. 4th at 1355. And, because the court “conclude[d] that the
27 moving parties had no legal basis to bring this motion, we do not address whether any ethical rules
were violated.” Id. at 1359 n.6. It thus provides no support for the Taylors’ motion.
28
5.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
(2) the lawyer’s testimony relates to the nature and value of legal services rendered
1 in the case; or
2 (3) the lawyer has obtained informed written consent from the client.
3 Cal. Rule Prof’l Conduct 3.7 (footnote omitted). Additionally, “the trial court . . . has discretion to
4 order withdrawal of counsel in instances where an attorney . . . ought to testify on behalf of his
5 client.”3 However, the court “should resolve the close case in favor of the client’s right to
6 representation by an attorney of his or her choice and not . . . in favor of complete withdrawal of
7 the attorney.”
8 [I]f a party is willing to accept less effective counsel because of the attorney’s
testifying, neither his opponent nor the trial court should be able to deny this choice
9 to the party without a convincing demonstration of detriment to the opponent or
injury to the integrity of the judicial process. In other words, under the present rule
10 the trial court can disqualify counsel only where it is confronted with manifest
interests which it must protect from palpable prejudice.
11
12 Lyle v. Superior Court, 122 Cal. App. 3d 470, 482 (1981) (citations omitted).
13 The Taylors’ motion comes nowhere close to satisfying the applicable standards, and should
14 be denied.
15 B. The Taylors Lack Standing to Bring This Motion
16 The motion to disqualify Mr. Wimmer is brought by “Plaintiffs and Cross-Defendants
17 ELLIOTT TAYLOR, RON TAYLOR, and 2441-2449 2nd STREET LLC, and Cross-Defendants
18 TERRA NOVA INDUSTRIES, INC. and ET ASSETS.” RJN Exh. G at 2:2-4. It complains that
19 Mr. Wimmer appeared as counsel for “ST6 HOLDINGS, LLC and GREENER FUTURE, LLC”
20 (id. at 2:7-8) “without Elliott Taylor’s consent” (RJN Exh. H at 1:26-27) and that his representation
21 of the Callahans now is improper because he is “taking sides in a dispute between co-owners in a
22 closely-held company he represented . . .” (id. at 3:18-19). The moving parties do not have
23 standing to bring this motion.
24
25
26
3
Lyle was discussing former Rule 2-111, which at the time applied when an attorney “knows or
27 should know that the member ought to be called as a witness on behalf of the member’s client in
litigation concerning the subject matter of such employment . . . .” 122 Cal. App. 3d at 475
28 (emphasis added). Under Rule 3.7, the question is whether the attorney is “likely” to be a witness.
6.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 Mr. Wimmer has never represented Ron, Elliott, 2nd Street LLC, Terra Nova, or ET Assets;
2 has never spoken or corresponded with the Taylors or anyone acting on their behalf besides their
3 counsel in this litigation; and has never reviewed a document confidential to the Taylors. Wimmer
4 Decl. ¶ 14. Mr. Wimmer was retained to represent Greener Future and ST6 against the Taylors’
5 claims. Mot. RJN. Exhs. F & G. The moving parties thus have never “had an attorney-client
6 relationship with that attorney” who they are moving to disqualify, Great Lakes at 1356, and so
7 lack standing. They also had no “confidential or fiduciary relationship” with him, and so no
8 “expectation of confidentiality.” Id. The Taylors have submitted no declaration from any of the
9 Taylor parties suggesting otherwise—their motion depends entirely on the pleadings in this action,
10 emails between their litigation counsel and Mr. Wimmer, and inadmissible surmise. E.g., RJN
11 Exh. H at 5:7-15 (speculating about privilege objections the Callahans might make).
12 C. The Callahans Are Not Materially Adverse to Greener Future and ST6
13 Only Greener Future and ST6 would have standing to seek Mr. Wimmer’s disqualification
14 as the Callahans’ counsel, and the Taylors’ arguments that one member of the entities lacks the
15 authority to hire counsel (e.g., RJN Exh C at 1:8-10; 5:1-4) bar them from attempting to have the
16 entities bring such a motion now. But even if the Taylors could bring a motion on behalf of the
17 entities, it would still not meet the standards for disqualification. Successive representations of
18 clients are only prohibited if “that person’s interests are materially adverse to the interests of the
19 former client . . . .” Cal. Rule Prof’l Conduct 1.9(a). The Callahans’ interests are not materially
20 adverse to Greener Future and ST6. Quite the contrary: The Callahans are the only parties seeking
21 to advance those entities’ interests.
22 In December 2016, the Taylors and Callahans formed a joint venture to pursue the Project
23 in Napa and elsewhere, and in January 2018 executed operating agreements for Greener Future and
24 ST6 to hold the Project’s assets. In April 2018, ST6 was awarded Napa’s first cannabis license,
25 and in May 2018 Greener Future executed a letter of intent with cannabis operator Harvest to sell
26 part of ST6 to Harvest; Greener Future would retain ownership of the real estate. In May 2018, the
27 Taylors closed on the property in the name of their separately owned 2nd Street LLC, instead of
28 Greener Future. In June 2018, the Taylors transferred ST6’s license to Elliott individually and
7.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 terminated ST6’s lease on the property. Mot. RJN Exh. B at ¶¶ 24-28, 42-43, 48, 56-62, 80, 95-97.
2 Two weeks later, the Taylors sued Colton, Michael, and ST6 (not derivatively, but directly)
3 alleging “Defendants [including ST6] do not have any business relationship with Plaintiffs
4 whatsoever” and praying for “judgment against Defendants establishing the following: . . .
5 Defendants have no relationship, or any other relationship, with any of the Plaintiffs.” RJN Exh. A
6 ¶ 15 & Prayer. The Taylors repeated their allegations that ST6 held no interest in the Project in
7 their Amended Complaint. “Defendants [including ST6] do not have any business relationship
8 with Plaintiffs whatsoever” and ask the court to declare that “Defendants have no business
9 relationship with Plaintiffs whatsoever.” RJN Exh. B ¶¶ 28, 30. The Taylors added Greener Future
10 to their Second Amended Complaint, and sought a judgment from this court that:
11 Neither Defendant Callahan, ST6 nor Greener Future has any ownership interest in
the cannabis permit issued by the City of Napa; . . . has any lease with any of the
12 Plaintiffs or other rights to occupy the Property; . . . has any ownership interest or
any other claim against cannabis projects involving Plaintiffs; . . . has any right to
13 operate a cannabis dispensary on the Property; . . . has any ownership interest in any
other cannabis projects involving Plaintiffs and have no right to any compensation
14 arising from such projects.
15 Mot. RJN Exh. A at Prayer. The Taylors’ Third Amended Complaint seeks this same relief. RJN
16 Exh. F at Prayer.
17 The Callahans allege the Taylors’ transfer of the license and rights to the property away
18 from ST6 and Greener Future were wrongful, and seek to vindicate those entities’ rights. They
19 retained Mr. Wimmer to file answers on behalf of those entities. Their only claims against Greener
20 Future and ST6 are derivative. Thus, while the Taylors stole Greener Future’s and ST6’s assets
21 and sued those entities in this court, the Callahans have sought to defend those entities, and
22 advance no claims against them. The Callahans are not materially adverse to the entities, and there
23 is no conflict in Mr. Wimmer serving as counsel to the Callahans now.
24 D. Mr. Wimmer’s Prior Representation of Greener Future and ST6 Is Not a Basis
25 for Disqualification
26 The Taylors contend, despite their judicial admissions and despite suing Greener Future and
27 ST6 in this action, that Elliott has not withdrawn from those entities, and that Mr. Wimmer’s
28 representation of those entities and subsequent refusal to provide Elliott with the miniscule “file”
8.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 for that representation—drafts of the answers to the SAC, emails exchanging drafts of those
2 answers with Colton, and emails with the Taylors’ counsel—was wrongful.4 Even if the Taylors
3 were correct, disqualification would not be appropriate. Neither the Rules of Professional Conduct
4 nor the authorities cited by the Taylors identify being retained by one partner to defend the entity
5 against claims brought by a second partner, or refusing to turn over the file generated by that
6 litigation, as bases for disqualification.
7 In Gong v. RFG Oil, Inc., the motion challenged the concurrent representation by an
8 attorney (Lawton) of one partner (David) and a business entity (RFG) on affirmative claims against
9 the other partner (Jeffrey).
10 RFG is a closely held corporation that can only speak through David. Additionally,
RFG is not a passive litigant in this action as it has filed (through Lawton and
11 David) a cross-complaint seeking damages against Jeffrey for, among other things,
fraud and breaches of fiduciary duty. RFG also seeks to cancel Jeffrey’s shares
12 based on the alleged breach of a promise to share responsibility with David for
meeting its need for cash. The cross-complaint raises a concern that David is using
13 RFG as a pawn in his dispute with Jeffrey, possibly to RFG’s detriment. Under
these circumstances, Lawton cannot satisfy its undivided duty of loyalty to both
14 David and RFG.
15 166 Cal. App. 4th 209, 216 (2008).
16 In Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp., the disqualified counsel (“Christensen
17 White”) had served as corporate counsel for MGM for over 20 years before finding itself opposite
18 MGM in a consolidated trial involving the validity of an MGM merger. 36 Cal. App. 4th 1832,
19 1836-37 (1995). Conflicts were unavoidable.
20 Every time Christensen White attempts to disprove this theory against their clients
in the CLBN action, it will affect the MGM action. Also, of necessity, Christensen
21 White must attempt to support the credibility of Silbert, a former director and
shareholder of MGM, with respect to his participation during the negotiations for the
22 merger. In effect, Christensen White will be representing a former shareholder and
director against the interests of the former corporate client.
23
24 36 Cal. App. 4th at 1845.
25
26
27
4
Mr. Wimmer will make these documents available for in camera review if the court desires.
28 Wimmer Decl. ¶ 6.
9.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 In Woods v. Superior Court, the disqualified attorney “for years . . . represented the interests
2 of a family corporation” and then sought to “represent one spouse against the other in an action for
3 dissolution of their marriage when the family corporation is a primary focus of dispute in the
4 dissolution.” 149 Cal. App. 3d 931, 933 (1983).
5 None of those cases bears any resemblance to this action, where Mr. Wimmer is not
6 representing the entities and individuals at the same time; the Callahans have not pursued any
7 claims against the Taylors using the Greener Future and ST6 entities, but only retained counsel to
8 file defensive pleadings in response to the Taylors’ complaints against those entities; and Mr.
9 Wimmer had no contact at all with the entities or any of the other parties before this litigation.
10 E. Mr. Wimmer Is Not Violating the Witness Advocate Rule
11 Mr. Wimmer is not violating the witness advocate rule, because he is not “likely to be a
12 witness” in this action. Cal. Rule Prof’l Conduct 3.7(a). He has never spoken to Elliott, Ron, or
13 anyone else involved with Greener Future, ST6, or the Project other than the Callahans—and only
14 after the Taylors initiated this litigation. Before October 2018, when Colton contacted Mr.
15 Wimmer about representing him and his father in this lawsuit, Mr. Wimmer had never even heard
16 of the Taylors, Callahans, Greener Future, or ST6. Other than his brief representation of Greener
17 Future and ST6, and now the Callahans, he is a complete stranger to this lawsuit. Wimmer Decl. ¶
18 14. He has no admissible testimony to give.
19 Even if Mr. Wimmer were likely to be a witness, the Callahans would have the right to give
20 “informed consent” to his continued representation. Cal. Rule Prof’l Conduct 3.7(a)(3). While the
21 court would retain discretion to remove Mr. Wimmer if “confronted with manifest interests which
22 it must protect from palpable prejudice,” Lyle, 122 Cal. App. 3d at 482, there are none here.
23 Indeed, while the Taylors contend in their notice that Mr. Wimmer “has become a material witness
24 in this action” (RJN Exh. G at 2:13-14), they do not even attempt to argue the point in their
25 memorandum.
26 By contrast, the Taylors’ counsel, Mr. Mazer, has firsthand knowledge of facts directly
27 relevant to this dispute—including whether the Taylors held themselves out as the Callahans’
28 partners, which is central to the question whether the Taylors and Callahans formed a joint venture.
10.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 Documents produced by Colton in this action show Elliott and Mr. Mazer corresponded between at
2 least November 2017 and January 2018 about a potential relationship between the Taylors’ and
3 Callahans’ Napa venture and Medithrive, a San Francisco cannabis dispensary represented by Mr.
4 Mazer. The emails also show that Elliott and Steven Kessler (another member of the Project) met
5 in person with Mr. Mazer, and suggest Mr. Mazer may have formed an attorney-client relationship
6 with the Taylors’ and Callahans’ Project. On November 13, 2017, Elliott wrote to Mr. Mazer and
7 the two principals of Medithrive:
8 Hey Marc, I wanted to thank you for taking the time to meet with myself and Steve
and for introducing us to your other clients!
9
Dear Misha & Sasha,
10
....
11
It was such a pleasure meeting both of you, sharing stories about business, life etc
12 and reviewing your current situation and possible next steps..
13 Below is something just for review, a starting point to get the conversation going
and to see where we could possibly work together.
14
Please take a moment to review. We are open to many options and paths to success
15 together.
16 Looking forward to following up soon though as we are all ready to work together!
17 If you want to set up a call let us know!
18 Wimmer Decl. Exh. D at CCALLAHAN013926 (emphasis added). The draft agreement Elliott
19 attached was a management services agreement between Medithrive and “CanManage, Inc.” which
20 noted CanManage’s experience in Washington (where the Callahans, but not the Taylors, reside)
21 and identified the agent for receipt of notice as “Michael Callahan.” Id. at -13928, -13932.
22 Elliott corresponded with Medithrive and Mr. Mazer again in December 2017 and January
23 2018. Wimmer Decl. Exhs. E & F. On January 3, 2018, Elliott wrote to Mr. Mazer: “Hey marc,
24 [¶] The whole team is in town can we meet with your clients again tomorrow or Friday?” Wimmer
25 Decl. Exh. F at CCALLAHAN014584. Mr. Mazer indicated he and the Medithrive principals were
26 too busy to meet and not interested in a management services agreement, but that Medithrive
27 “would love to meet with you on other things about the dispensary of Six Pack, if you want, when
28 time is good in the next few weeks, if possible.” Id. Elliott said he had passed on some
11.
CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657
1 information provided by Mr. Mazer to his “investment team” and added, “Looking forward to
2 staying in touch!” Id.
3 Mr. Mazer also has firsthand knowledge of the amended cannabis license application the
4 Taylors submitted to Napa in December 2018—using the exact same application materials
5 developed by Colton for the parties’ joint Project, but changing the applicant from ST6 to “Harvest
6 of Napa, Inc.,” and changing the owners on the application from Colton and Elliott to Elliott and
7 two individuals from Harvest, Steve White and Jason Vedadi. Wimmer Decl. Exh. G at
8 CCALLAHAN001121. Compare Wimmer Decl. Exh. H at CCALLAHAN011088.
9 It is notable that these documents were produced by Colton. The Taylors have never
10 produced a single document in this action, and so the Callahans are ignorant of any other
11 communications the Taylors and Mr. Mazer
Preview
1 Christopher Wimmer (SBN 263275) 473 Jean Street #305 ELECTRONICALLY 2 Oakland, California 94610 (415) 683-8867 F I L E D 3 Superior Court of California, chris@wimmer.law County of San Francisco 4 04/22/2020 Attorney for Defendants and Cross-Complainants Clerk of the Court 5 COLTON CALLAHAN and MICHAEL CALLAHAN BY: ERNALYN BURA Deputy Clerk 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SAN FRANCISCO 9 UNLIMITED JURISDICTION 10 ELLIOTT TAYLOR, RON TAYLOR, ET Case No. CGC-18-567657 11 ASSETS, LLC and 2441-2449 2ND STREET 12 LLC, COLTON CALLAHAN AND MICHAEL Plaintiffs, CALLAHAN’S MEMORANDUM OF 13 POINTS AND AUTHORITES IN v. OPPOSITION TO MOTION TO 14 DISQUALIFY COUNSEL COLTON CALLAHAN, MICHAEL 15 CALLAHAN, and DOES 1 through 20, inclusive, Hearing Date: May 5, 2020 16 Defendants, Hearing Time: 9:30 a.m. Judge: Hon. Ethan P. Schulman 17 and Department: 302 ST6 HOLDINGS, LLC, and GREENER Reservation: 03230505-07 18 FUTURE, LLC, Action Filed: June 26, 2018 Nominal Defendants. Trial Date: Not set 19 COLTON CALLAHAN and MICHAEL 20 CALLAHAN, Cross-Complainants 21 v. 22 23 ELLIOT TAYLOR, RON TAYLOR, 2441-2449 2ND STREET LLC, TERRA NOVA 24 INDUSTRIES, INC., ET ASSETS, LLC and ROES 1 through 20, inclusive, 25 Cross-Defendants, 26 and 27 ST6 HOLDINGS, LLC, and GREENER FUTURE, LLC, 28 Nominal Defendants. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 TABLE OF CONTENTS 2 3 I. INTRODUCTION ......................................................................................................................... 1 4 II. FACTUAL BACKGROUND ....................................................................................................... 2 5 A. The Callahans Retain Mr. Wimmer to Represent Greener Future and ST6 Against the 6 Taylors ..................................................................................................................................... 2 7 B. The Taylors Move to Disqualify Mr. Wimmer from Representing the Entities ..................... 3 8 C. The Callahans Retain Mr. Wimmer to Represent Them Against the Taylors ........................ 3 9 D. Procedural History................................................................................................................... 4 10 III. ARGUMENT ................................................................................................................................ 4 11 A. Legal Standards ....................................................................................................................... 4 12 B. The Taylors Lack Standing to Bring This Motion .................................................................. 6 13 C. The Callahans Are Not Materially Adverse to Greener Future and ST6 ................................ 7 14 D. Mr. Wimmer’s Prior Representation of Greener Future and ST6 Is Not a Basis for 15 Disqualification ....................................................................................................................... 8 16 E. Mr. Wimmer Is Not Violating the Witness Advocate Rule .................................................. 10 17 IV. CONCLUSION ........................................................................................................................... 12 18 19 20 21 22 23 24 25 26 27 28 i. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 TABLE OF AUTHORITIES 2 Cases 3 Angelucci v. Century Supper Club, 41 Cal. 4th 160 (2007) .............................................................. 4 4 DCH Health Services Corp. v. Waite, 95 Cal. App. 4th 829 (2002) ................................................. 4 5 Dino v. Pelayo, 145 Cal. App. 4th 347 (2006) .................................................................................. 5 6 Gong v. RFG Oil, Inc., 166 Cal. App. 4th 209 (2008) .................................................................. 5, 9 7 Great Lakes Constr., Inc. v. Burman, 186 Cal. App. 4th 1347 (2010) ..................................... 4, 5, 7 8 Lyle v. Superior Court, 122 Cal. App. 3d 470 (1981) ................................................................. 6, 10 9 Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp., 36 Cal. App. 4th 1832 (1995)............................... 9 10 Strasbourger Pearson Tulcin Wolff Inc. v. Wiz Technology, Inc., 69 Cal. App. 4th 1399 (1999) .... 4 11 Woods v. Superior Court, 149 Cal. App. 3d 931 (1983) ................................................................. 10 12 Rules 13 Cal. Rule Prof’l Conduct 1.9 ......................................................................................................... 5, 7 14 Cal. Rule Prof’l Conduct 3.7 ....................................................................................................... 6, 10 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 I. INTRODUCTION 2 Plaintiffs and Cross-Defendants Elliott Taylor, Ron Taylor, ET Assets, LLC, and 2441- 3 2449 2nd Street (together, the “Taylors”) have moved to disqualify the undersigned, Christopher 4 Wimmer, from acting as counsel for Defendants and Cross-Complainants Colton Callahan and 5 Michael Callahan (together, the “Callahans”). The motion completely ignores the applicable legal 6 standards, and none of the bases for disqualification raised by the Taylors has any merit. 7 First, the Taylors lack standing to bring this motion, because none of them is a former client 8 of Mr. Wimmer or ever shared any confidences with him. 9 Second, because Mr. Wimmer has never served as counsel to the Taylors, there is no 10 conflicting successive representation. He briefly represented Greener Future, LLC (“Greener 11 Future”) and ST6 Holdings, LLC (“ST6”) in this action by filing an answer to the Taylors’ 12 complaint against those entities. While the Taylors incorrectly claim that representation was 13 improper because it was not authorized by Elliott Taylor (“Elliott”), they have no explanation for 14 how representing these entities against the Taylors creates a conflict that disables Mr. Wimmer 15 from now representing the Callahans—also against the Taylors. 16 Third, even if Mr. Wimmer’s representation of Greener Future and ST6 and his refusal to 17 provide Elliott with the few documents from that representation were improper, those are not bases 18 for disqualification. 19 Last, Mr. Wimmer will not likely serve as a witness in this action. He has no personal 20 knowledge of any fact concerning the Callahans’ and Taylors’ business relationship or dispute, and 21 the facts concerning his brief representation of Greener Future and ST6 in this action are not 22 relevant to any claim or defense. Marc Mazer of Weill Mazer, the Taylors’ counsel, cannot say the 23 same. 24 The motion to disqualify should be denied. 25 26 27 28 1. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 II. FACTUAL BACKGROUND 2 A. The Callahans Retain Mr. Wimmer to Represent Greener Future and ST6 3 Against the Taylors 4 Colton Callahan (“Colton”) and Mr. Wimmer met around October 2018, when Colton 5 contacted Mr. Wimmer through LinkedIn. They spoke in general terms about some cannabis 6 industry projects Colton was working on, as well as his dispute with the Taylors over their joint 7 venture to obtain cannabis licenses and real properties in Napa and elsewhere in California (the 8 “Project”). Mr. Wimmer was not then taking on litigation matters, and referred Colton to Peter 9 Roldan and Johnny Yeh at Emergent LLP. The Callahans retained Emergent to represent them in 10 this action in December 2018. Wimmer Decl. ¶ 4. 11 In August 2019, Colton contacted Mr. Wimmer about filing responses on behalf of Greener 12 Future and ST6 to the Taylors’ February 15, 2019 Second Amended Complaint (“SAC”). The 13 entities had not responded to the SAC, even though that pleading named the entities and sought to 14 establish they had no ownership interest in the Project, and it was possible the Taylors might seek 15 to enter default and obtain judgment. The Callahans and Mr. Wimmer agreed the initial 16 representation of the entities would only be for the purpose of filing an answer to the Taylors’ 17 SAC. The Taylors’ and Callahans’ counsel were discussing potential settlement negotiations; if 18 they were not fruitful, the Callahans and Mr. Wimmer agreed they would discuss whether further 19 representation of the entities was necessary. Wimmer Decl. ¶ 5. 20 In preparing the answers to the SAC, Mr. Wimmer spoke to Colton three or four times, and 21 exchanged a few short emails with him providing drafts of the answers. On August 28, 2019, Mr. 22 Wimmer filed Greener Future’s and ST6’s answers to the Taylors’ SAC. Wimmer Decl. ¶¶ 6-7 & 23 Mot. RJN. Exhs. F & G.1 24 25 26 27 1 “RJN” is the request for judicial notice in support of this opposition; “Mot. RJN” is the Taylors’ 28 request for judicial notice in support of their motion. 2. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 B. The Taylors Move to Disqualify Mr. Wimmer from Representing the Entities 2 The day Mr. Wimmer filed the answers, the Taylors’ counsel, Mr. Mazer, demanded Mr. 3 Wimmer withdraw as counsel for the entities and turn over his entire file on the matter or Elliott 4 would be “filing an appropriate claim against you.” Mr. Wimmer responded the next day, 5 explaining he believed Elliott had withdrawn from Greener Future and ST6 through his court 6 filings and that, even if he had not withdrawn, given the original 50-50 split in ownership, Elliott 7 would not have had authority to discharge him over Colton’s objection. Mr. Wimmer also asked 8 Mr. Mazer to explain the basis of the legal claims he threatened. Mr. Mazer refused to do so, and 9 instead confirmed his intent to sue—which Mr. Wimmer noted would be sanctionable conduct. 10 Wimmer Decl. ¶ 8 & Exh. A. 11 On October 2, 2019, instead of filing suit, the Taylors moved to disqualify Mr. Wimmer as 12 counsel for Greener Future and ST6. In their memorandum of points and authorities in support of 13 that motion, the Taylors argued that neither Elliott nor Colton could retain counsel for the entities, 14 because they were deadlocked. Wimmer Decl. ¶ 9; RJN Exh C at 1:8-10; 5:1-4. The Taylors also 15 argued that there was no need for the entities to respond to the pleadings against them or have 16 independent representation. RJN Exh. C at 8:11-18. Mr. Wimmer concluded that, having made 17 these arguments, the Taylors would not be permitted to later shift course and pursue their contract 18 and fraud claims against the entities, so no further action on behalf of the entities was necessary. 19 As a result, and consistent with his initial conversations with Colton that the representation was 20 only to ensure the Taylors did not take a default against Greener Future and ST6, on October 25, 21 2019 Mr. Wimmer filed a statement of non-opposition to the motion. RJN Exh. D. 22 On November 5, 2019, the court granted the motion to disqualify because it “was not 23 opposed.” RJN Exh. E. 24 C. The Callahans Retain Mr. Wimmer to Represent Them Against the Taylors 25 On February 25, 2020, the Taylors and Callahans mediated this dispute before the Hon. 26 James McBride (ret.). Mediation was unsuccessful, and on March 6, the Callahans retained Mr. 27 Wimmer to represent them in this action. Mr. Wimmer substituted into this action as counsel for 28 the Callahans on March 17. Wimmer Decl. ¶ 11. 3. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 D. Procedural History 2 The day Mr. Wimmer entered his appearance, Mr. Mazer indicated the Taylors might move 3 to disqualify him from acting as counsel for the Callahans “on various grounds including, but not 4 limited to, as having represented both Greener Future and ST6 in this proceeding and having 5 conflicts and other grounds. . . . . In addition, you are now a material witness as having involved 6 yourself in this dispute over the objections of my client.” Mr. Wimmer responded that day, asking 7 Mr. Mazer to meet and confer before filing the motion, so that Mr. Wimmer could consider the 8 Taylors’ arguments. Mr. Mazer never did so. Wimmer Decl. ¶ 12 & Exh. B. 9 On March 31, Mr. Mazer emailed Mr. Wimmer and repeated his request to turn over the file 10 from the representation of Greener Future and ST6. Though Mr. Mazer had never met and 11 conferred with Mr. Wimmer about the disqualification motion, he indicated he had reserved a 12 hearing. On April 1, the Taylors filed this motion. Wimmer Decl. ¶ 13 & Exh. C. 13 III. ARGUMENT 14 The Taylors lack standing to bring this motion. They also have presented no evidence of a 15 conflict between the Callahans and the Greener Future and ST6 entities, or any reason to believe 16 Mr. Wimmer will violate the advocate rule. The motion should be denied. 17 A. Legal Standards 18 A party may only move to disqualify counsel if he has standing. As the Taylors’ primary 19 authority explains (but their motion omits): 20 Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. A “standing” requirement is implicit in 21 disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client 22 relationship with that attorney. 23 Great Lakes Constr., Inc. v. Burman, 186 Cal. App. 4th 1347, 1356 (2010) (citing Angelucci v. 24 Century Supper Club, 41 Cal. 4th 160, 175 (2007) and Strasbourger Pearson Tulcin Wolff Inc. v. 25 Wiz Technology, Inc., 69 Cal. App. 4th 1399, 1404 (1999)). The only other basis for 26 disqualification is if the moving party has “an expectation of confidentiality” that the challenged 27 attorney’s representation would violate. Id. (citing DCH Health Services Corp. v. Waite, 95 Cal. 28 App. 4th 829 (2002)). But “some sort of confidential or fiduciary relationship must exist or have 4. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 existed before a party may disqualify an attorney predicated on the actual or potential disclosure of 2 confidential information.” Id. (citing Dino v. Pelayo, 145 Cal. App. 4th 347 (2006)). 3 Assuming standing, the standard for a disqualification motion depends on whether the case 4 involves concurrent or successive representations. As another of the Taylors’ authorities explains 5 (but their motion again omits): 6 In evaluating alleged conflicts, a court first looks to whether the representation at issue is simultaneous or successive. Where an attorney successively represents one 7 client following the prior representation of another client, the concern is to enforce the duty of confidentiality owed to the former client. In contrast, where the same 8 attorney simultaneously represents potentially conflicting parties, the primary interest at stake is the attorney’s duty of loyalty. 9 10 Gong v. RFG Oil, Inc., 166 Cal. App. 4th 209, 214 (2008). 11 This is a successive representation case, because Mr. Wimmer represented Greener Future 12 and ST6 between August and November 2019, and in March 2020 began to represent the 13 Callahans. In such a case, Rule 1.9(a) (former 3-310(E)), which the Taylors’ motion does not cite, 14 applies: 15 A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that 16 person’s interests are materially adverse to the interests of the former client unless the former client gives informed written consent. 17 18 Cal. Rule Prof’l Conduct 1.9 (footnotes omitted).2 19 The Taylors contend Mr. Wimmer is also subject to disqualification as a witness advocate, 20 but (yet again) do not even refer to the applicable legal standard. It is found in Rule 3.7: 21 (a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: 22 (1) the lawyer’s testimony relates to an uncontested issue or matter; 23 24 2 Although the Taylors’ primary authority, Great Lakes Construction, conclusively establishes the 25 Taylors lack standing to bring this motion (see pages 6:16-7:10 below), it is inapt on the question of conflicts. Great Lakes is a concurrent representation case, not a successive representation case 26 like this one, and only addresses the standards for disqualification “[i]n concurrent or joint representation cases . . . .” 186 Cal. App. 4th at 1355. And, because the court “conclude[d] that the 27 moving parties had no legal basis to bring this motion, we do not address whether any ethical rules were violated.” Id. at 1359 n.6. It thus provides no support for the Taylors’ motion. 28 5. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 (2) the lawyer’s testimony relates to the nature and value of legal services rendered 1 in the case; or 2 (3) the lawyer has obtained informed written consent from the client. 3 Cal. Rule Prof’l Conduct 3.7 (footnote omitted). Additionally, “the trial court . . . has discretion to 4 order withdrawal of counsel in instances where an attorney . . . ought to testify on behalf of his 5 client.”3 However, the court “should resolve the close case in favor of the client’s right to 6 representation by an attorney of his or her choice and not . . . in favor of complete withdrawal of 7 the attorney.” 8 [I]f a party is willing to accept less effective counsel because of the attorney’s testifying, neither his opponent nor the trial court should be able to deny this choice 9 to the party without a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process. In other words, under the present rule 10 the trial court can disqualify counsel only where it is confronted with manifest interests which it must protect from palpable prejudice. 11 12 Lyle v. Superior Court, 122 Cal. App. 3d 470, 482 (1981) (citations omitted). 13 The Taylors’ motion comes nowhere close to satisfying the applicable standards, and should 14 be denied. 15 B. The Taylors Lack Standing to Bring This Motion 16 The motion to disqualify Mr. Wimmer is brought by “Plaintiffs and Cross-Defendants 17 ELLIOTT TAYLOR, RON TAYLOR, and 2441-2449 2nd STREET LLC, and Cross-Defendants 18 TERRA NOVA INDUSTRIES, INC. and ET ASSETS.” RJN Exh. G at 2:2-4. It complains that 19 Mr. Wimmer appeared as counsel for “ST6 HOLDINGS, LLC and GREENER FUTURE, LLC” 20 (id. at 2:7-8) “without Elliott Taylor’s consent” (RJN Exh. H at 1:26-27) and that his representation 21 of the Callahans now is improper because he is “taking sides in a dispute between co-owners in a 22 closely-held company he represented . . .” (id. at 3:18-19). The moving parties do not have 23 standing to bring this motion. 24 25 26 3 Lyle was discussing former Rule 2-111, which at the time applied when an attorney “knows or 27 should know that the member ought to be called as a witness on behalf of the member’s client in litigation concerning the subject matter of such employment . . . .” 122 Cal. App. 3d at 475 28 (emphasis added). Under Rule 3.7, the question is whether the attorney is “likely” to be a witness. 6. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 Mr. Wimmer has never represented Ron, Elliott, 2nd Street LLC, Terra Nova, or ET Assets; 2 has never spoken or corresponded with the Taylors or anyone acting on their behalf besides their 3 counsel in this litigation; and has never reviewed a document confidential to the Taylors. Wimmer 4 Decl. ¶ 14. Mr. Wimmer was retained to represent Greener Future and ST6 against the Taylors’ 5 claims. Mot. RJN. Exhs. F & G. The moving parties thus have never “had an attorney-client 6 relationship with that attorney” who they are moving to disqualify, Great Lakes at 1356, and so 7 lack standing. They also had no “confidential or fiduciary relationship” with him, and so no 8 “expectation of confidentiality.” Id. The Taylors have submitted no declaration from any of the 9 Taylor parties suggesting otherwise—their motion depends entirely on the pleadings in this action, 10 emails between their litigation counsel and Mr. Wimmer, and inadmissible surmise. E.g., RJN 11 Exh. H at 5:7-15 (speculating about privilege objections the Callahans might make). 12 C. The Callahans Are Not Materially Adverse to Greener Future and ST6 13 Only Greener Future and ST6 would have standing to seek Mr. Wimmer’s disqualification 14 as the Callahans’ counsel, and the Taylors’ arguments that one member of the entities lacks the 15 authority to hire counsel (e.g., RJN Exh C at 1:8-10; 5:1-4) bar them from attempting to have the 16 entities bring such a motion now. But even if the Taylors could bring a motion on behalf of the 17 entities, it would still not meet the standards for disqualification. Successive representations of 18 clients are only prohibited if “that person’s interests are materially adverse to the interests of the 19 former client . . . .” Cal. Rule Prof’l Conduct 1.9(a). The Callahans’ interests are not materially 20 adverse to Greener Future and ST6. Quite the contrary: The Callahans are the only parties seeking 21 to advance those entities’ interests. 22 In December 2016, the Taylors and Callahans formed a joint venture to pursue the Project 23 in Napa and elsewhere, and in January 2018 executed operating agreements for Greener Future and 24 ST6 to hold the Project’s assets. In April 2018, ST6 was awarded Napa’s first cannabis license, 25 and in May 2018 Greener Future executed a letter of intent with cannabis operator Harvest to sell 26 part of ST6 to Harvest; Greener Future would retain ownership of the real estate. In May 2018, the 27 Taylors closed on the property in the name of their separately owned 2nd Street LLC, instead of 28 Greener Future. In June 2018, the Taylors transferred ST6’s license to Elliott individually and 7. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 terminated ST6’s lease on the property. Mot. RJN Exh. B at ¶¶ 24-28, 42-43, 48, 56-62, 80, 95-97. 2 Two weeks later, the Taylors sued Colton, Michael, and ST6 (not derivatively, but directly) 3 alleging “Defendants [including ST6] do not have any business relationship with Plaintiffs 4 whatsoever” and praying for “judgment against Defendants establishing the following: . . . 5 Defendants have no relationship, or any other relationship, with any of the Plaintiffs.” RJN Exh. A 6 ¶ 15 & Prayer. The Taylors repeated their allegations that ST6 held no interest in the Project in 7 their Amended Complaint. “Defendants [including ST6] do not have any business relationship 8 with Plaintiffs whatsoever” and ask the court to declare that “Defendants have no business 9 relationship with Plaintiffs whatsoever.” RJN Exh. B ¶¶ 28, 30. The Taylors added Greener Future 10 to their Second Amended Complaint, and sought a judgment from this court that: 11 Neither Defendant Callahan, ST6 nor Greener Future has any ownership interest in the cannabis permit issued by the City of Napa; . . . has any lease with any of the 12 Plaintiffs or other rights to occupy the Property; . . . has any ownership interest or any other claim against cannabis projects involving Plaintiffs; . . . has any right to 13 operate a cannabis dispensary on the Property; . . . has any ownership interest in any other cannabis projects involving Plaintiffs and have no right to any compensation 14 arising from such projects. 15 Mot. RJN Exh. A at Prayer. The Taylors’ Third Amended Complaint seeks this same relief. RJN 16 Exh. F at Prayer. 17 The Callahans allege the Taylors’ transfer of the license and rights to the property away 18 from ST6 and Greener Future were wrongful, and seek to vindicate those entities’ rights. They 19 retained Mr. Wimmer to file answers on behalf of those entities. Their only claims against Greener 20 Future and ST6 are derivative. Thus, while the Taylors stole Greener Future’s and ST6’s assets 21 and sued those entities in this court, the Callahans have sought to defend those entities, and 22 advance no claims against them. The Callahans are not materially adverse to the entities, and there 23 is no conflict in Mr. Wimmer serving as counsel to the Callahans now. 24 D. Mr. Wimmer’s Prior Representation of Greener Future and ST6 Is Not a Basis 25 for Disqualification 26 The Taylors contend, despite their judicial admissions and despite suing Greener Future and 27 ST6 in this action, that Elliott has not withdrawn from those entities, and that Mr. Wimmer’s 28 representation of those entities and subsequent refusal to provide Elliott with the miniscule “file” 8. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 for that representation—drafts of the answers to the SAC, emails exchanging drafts of those 2 answers with Colton, and emails with the Taylors’ counsel—was wrongful.4 Even if the Taylors 3 were correct, disqualification would not be appropriate. Neither the Rules of Professional Conduct 4 nor the authorities cited by the Taylors identify being retained by one partner to defend the entity 5 against claims brought by a second partner, or refusing to turn over the file generated by that 6 litigation, as bases for disqualification. 7 In Gong v. RFG Oil, Inc., the motion challenged the concurrent representation by an 8 attorney (Lawton) of one partner (David) and a business entity (RFG) on affirmative claims against 9 the other partner (Jeffrey). 10 RFG is a closely held corporation that can only speak through David. Additionally, RFG is not a passive litigant in this action as it has filed (through Lawton and 11 David) a cross-complaint seeking damages against Jeffrey for, among other things, fraud and breaches of fiduciary duty. RFG also seeks to cancel Jeffrey’s shares 12 based on the alleged breach of a promise to share responsibility with David for meeting its need for cash. The cross-complaint raises a concern that David is using 13 RFG as a pawn in his dispute with Jeffrey, possibly to RFG’s detriment. Under these circumstances, Lawton cannot satisfy its undivided duty of loyalty to both 14 David and RFG. 15 166 Cal. App. 4th 209, 216 (2008). 16 In Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp., the disqualified counsel (“Christensen 17 White”) had served as corporate counsel for MGM for over 20 years before finding itself opposite 18 MGM in a consolidated trial involving the validity of an MGM merger. 36 Cal. App. 4th 1832, 19 1836-37 (1995). Conflicts were unavoidable. 20 Every time Christensen White attempts to disprove this theory against their clients in the CLBN action, it will affect the MGM action. Also, of necessity, Christensen 21 White must attempt to support the credibility of Silbert, a former director and shareholder of MGM, with respect to his participation during the negotiations for the 22 merger. In effect, Christensen White will be representing a former shareholder and director against the interests of the former corporate client. 23 24 36 Cal. App. 4th at 1845. 25 26 27 4 Mr. Wimmer will make these documents available for in camera review if the court desires. 28 Wimmer Decl. ¶ 6. 9. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 In Woods v. Superior Court, the disqualified attorney “for years . . . represented the interests 2 of a family corporation” and then sought to “represent one spouse against the other in an action for 3 dissolution of their marriage when the family corporation is a primary focus of dispute in the 4 dissolution.” 149 Cal. App. 3d 931, 933 (1983). 5 None of those cases bears any resemblance to this action, where Mr. Wimmer is not 6 representing the entities and individuals at the same time; the Callahans have not pursued any 7 claims against the Taylors using the Greener Future and ST6 entities, but only retained counsel to 8 file defensive pleadings in response to the Taylors’ complaints against those entities; and Mr. 9 Wimmer had no contact at all with the entities or any of the other parties before this litigation. 10 E. Mr. Wimmer Is Not Violating the Witness Advocate Rule 11 Mr. Wimmer is not violating the witness advocate rule, because he is not “likely to be a 12 witness” in this action. Cal. Rule Prof’l Conduct 3.7(a). He has never spoken to Elliott, Ron, or 13 anyone else involved with Greener Future, ST6, or the Project other than the Callahans—and only 14 after the Taylors initiated this litigation. Before October 2018, when Colton contacted Mr. 15 Wimmer about representing him and his father in this lawsuit, Mr. Wimmer had never even heard 16 of the Taylors, Callahans, Greener Future, or ST6. Other than his brief representation of Greener 17 Future and ST6, and now the Callahans, he is a complete stranger to this lawsuit. Wimmer Decl. ¶ 18 14. He has no admissible testimony to give. 19 Even if Mr. Wimmer were likely to be a witness, the Callahans would have the right to give 20 “informed consent” to his continued representation. Cal. Rule Prof’l Conduct 3.7(a)(3). While the 21 court would retain discretion to remove Mr. Wimmer if “confronted with manifest interests which 22 it must protect from palpable prejudice,” Lyle, 122 Cal. App. 3d at 482, there are none here. 23 Indeed, while the Taylors contend in their notice that Mr. Wimmer “has become a material witness 24 in this action” (RJN Exh. G at 2:13-14), they do not even attempt to argue the point in their 25 memorandum. 26 By contrast, the Taylors’ counsel, Mr. Mazer, has firsthand knowledge of facts directly 27 relevant to this dispute—including whether the Taylors held themselves out as the Callahans’ 28 partners, which is central to the question whether the Taylors and Callahans formed a joint venture. 10. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 Documents produced by Colton in this action show Elliott and Mr. Mazer corresponded between at 2 least November 2017 and January 2018 about a potential relationship between the Taylors’ and 3 Callahans’ Napa venture and Medithrive, a San Francisco cannabis dispensary represented by Mr. 4 Mazer. The emails also show that Elliott and Steven Kessler (another member of the Project) met 5 in person with Mr. Mazer, and suggest Mr. Mazer may have formed an attorney-client relationship 6 with the Taylors’ and Callahans’ Project. On November 13, 2017, Elliott wrote to Mr. Mazer and 7 the two principals of Medithrive: 8 Hey Marc, I wanted to thank you for taking the time to meet with myself and Steve and for introducing us to your other clients! 9 Dear Misha & Sasha, 10 .... 11 It was such a pleasure meeting both of you, sharing stories about business, life etc 12 and reviewing your current situation and possible next steps.. 13 Below is something just for review, a starting point to get the conversation going and to see where we could possibly work together. 14 Please take a moment to review. We are open to many options and paths to success 15 together. 16 Looking forward to following up soon though as we are all ready to work together! 17 If you want to set up a call let us know! 18 Wimmer Decl. Exh. D at CCALLAHAN013926 (emphasis added). The draft agreement Elliott 19 attached was a management services agreement between Medithrive and “CanManage, Inc.” which 20 noted CanManage’s experience in Washington (where the Callahans, but not the Taylors, reside) 21 and identified the agent for receipt of notice as “Michael Callahan.” Id. at -13928, -13932. 22 Elliott corresponded with Medithrive and Mr. Mazer again in December 2017 and January 23 2018. Wimmer Decl. Exhs. E & F. On January 3, 2018, Elliott wrote to Mr. Mazer: “Hey marc, 24 [¶] The whole team is in town can we meet with your clients again tomorrow or Friday?” Wimmer 25 Decl. Exh. F at CCALLAHAN014584. Mr. Mazer indicated he and the Medithrive principals were 26 too busy to meet and not interested in a management services agreement, but that Medithrive 27 “would love to meet with you on other things about the dispensary of Six Pack, if you want, when 28 time is good in the next few weeks, if possible.” Id. Elliott said he had passed on some 11. CALLAHANS’ MPA ISO OPP. TO MOT. TO DISQUALIFY COUNSEL No. CGC-18-567657 1 information provided by Mr. Mazer to his “investment team” and added, “Looking forward to 2 staying in touch!” Id. 3 Mr. Mazer also has firsthand knowledge of the amended cannabis license application the 4 Taylors submitted to Napa in December 2018—using the exact same application materials 5 developed by Colton for the parties’ joint Project, but changing the applicant from ST6 to “Harvest 6 of Napa, Inc.,” and changing the owners on the application from Colton and Elliott to Elliott and 7 two individuals from Harvest, Steve White and Jason Vedadi. Wimmer Decl. Exh. G at 8 CCALLAHAN001121. Compare Wimmer Decl. Exh. H at CCALLAHAN011088. 9 It is notable that these documents were produced by Colton. The Taylors have never 10 produced a single document in this action, and so the Callahans are ignorant of any other 11 communications the Taylors and Mr. Mazer