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I DAVID M. GILMORE, #105429
dsilmore@smlesal.net
2 G"ILMOFE,-MAGNE S S JANI S SE
Post Office Box 28907 E-FILED
a 5/2/2019 3:37 PM
J Fresno, California 937 29 -8907
Teleohone: (559) 448-9800 Superior Court of California
4 Facsimile: (5 59)'448-9 899 County of Fresno
By: K. Daves, Deputy
5 Attornevs for Defendant and Cross-
Complainant
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I SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF FRESNO, CENTRAL DIVISION
10
11 WILDWOOD PACKING AND Case No. 18CECG03169
COOLING, INC.,
12 MEMORANDUM OF POINTS AND
Plaintiff, AUTHORITIES IN OPPOSITION TO
13 MOTION TO DISQUALIFY
v COUNSEL
I4
SLINSWEET FRESH STONE FRUIT Date: May 15,2019
15 LLC,DOES 1.100, Time: 3:30 p.m.
Dept 503
t6 Defendant.
L7
SLINSWEET FRESH STONE FRUIT
18 LLC. a California limited liability
company,
T9
Cross-ComPlainant,
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v
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WILDWOOD PACKING AND
22 COOLING, INC., LUKE WOODS, ROES
1-50,
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Cross-Defendants.
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25 plaintiff and cross defendant Wildwood Packing and Cooling Inc. and cross
26 defendant Luke Woods move to disqualify counsel for Sunsweet Fresh Stone Fruit LLC.
27 The motion is not well taken and it should be denied. It is simply another litigation tactic
28 by wildwood Packing and woods designed to delay the process.
GILMOREMAGNESS JANISSE
I
09898-0001\470953.
A PRoFBsToNAL CoRTRATIoN
POST OFFICE BOX 28907
MEMORANDUM OF POINTS
FRESNO, CALIFORNIA 93729.8907 AND AUTHORITIES rN OPPOSITION TO MOTION TO DISQUALIFY
COUNSEL
1 Sunsweet Fresh Stone Fruit LLC ("sunsweet Fresh") was established by
2 Delicious Foods LLc,Wildwood Packing and Cooling, Inc. and Michael Bujulian in or
J about January Ig,2010. Luke Woods individually was never a member of the company
4 but he was its chief operating officer for a period of time before its de facto dissolution.
5 In or about August of 2}Il,Wildwood Packing undertook a series of actions
6 that resulted in Sunsweet Fresh's de facto dissolution. Those actions lead to the filing of a
7 complaint by Delicious Foods against Wildwood, Woods and a third party, that included
8 both direct and derivative claims. The complaint was filed on Novembet 3,2015. The
9 complaint was challenged repeatedly by Wildwood and Woods and on or about January 1,
10 2017 thethird amended complaint was filed. Although the TAC was also challenged, it
11 remains the operative comPlaint.
l2 The various complaints identified Sunsweet Fresh either as a defendant who
13 was in reality a plaintiff because the claims asserted were derivative or it was named
t4 directly as a plaintiff. The court ultimately declined to allow Sunsweet Fresh to remain as
l5 a named plaintiff and held that the derivative claims could not proceed because there was
t6 no adequate showing that the prerequisites for a derivative suit were alleged. Delicious
t7 Foods believes that the trial court's rulings were, and areo effoneous but will have to
18 pursue review of those decisions on appeal if necessary after the case is complete.
t9 Throughout this process, Sunsweet Fresh was either nominally or directly
20 represented by Gilmore Magness Janisse or its predecessor firm Gilmore Magness Leifer
21, without objection. There was, and is, no relationship between the firm and either Woods
22 or Wildwood Packing.
23 Some three years later,August 27,2018, Wildwood filed this action seeking
24 to recover from Sunsweet Fresh for claimed unpaid packing and other charges. Contrary
25 to the moving papers, Woods is not a plaintiff in this case but is in this case only as a cross
26 defendant. In response to the claims filed by Wildwood Packing, Sunsweet Fresh filed a
27 cross complaint seeking to recover for the damages it claims were caused by the actions of
28 Wildwood and Luke Woods.
GILMOREMACNESS JANISSE
I
09898-0001\470953.
A PRoFssroNAL CoRTRATIoN 2
POST OFFICE BOX 28907
IN OPPOSITION TO MOTION TO DISQUALIFY
MEMORANDUM OF POINTS AND AUTHORITIES
FRESNO, CALIFORNIA 93729.890?
COLTNSEL
I Wildwood and Woods filed a motion to strike the cross complaint alleging
2 that Sunsweet Fresh was a suspended corporation. No issue was raised in that motion
J about the representation of Sunsweet Fresh. Sunsweet Fresh was reinstated and the motion
4 was moot. Now after almost three full years of litigation between this case and the related
5 case, 15CECG03406, Wildwood and Woods move to disqualiff the firm. Neither Woods
6 nor Wildwood have standing to make the motion and even ifthey had standing it must be
7 denied.
8 TO HA TO OTTON
9
Without any effort to provide analysis of the actual facts here, Wildwood and
t0
Woods claim to have standing simply because they were members of the Sunsweet Fresh
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LLC. As to Woods that is not correct. He was never a member so he has no standing
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whatsoever to raise the issue here.
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As to Wildwood, itis not as simple as it suggests. As explained in Coldren
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v. Hart, King & Coldren, Inc. (2015) 239 Cal. App. 4th 237, "Standing generally requires
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that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest'
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fCitation.] A'stancling' requirement is implicit in disqualification tnotions. Generally,
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before the disqualitlcation of an attorney is proper, the cornplaining party must have or
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must have had an attorney-client relationship with that attorney." {Great Lakes
t9
Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347,1356 [114 Cal. Rptr. 3d 301].)
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o'oThe is on the party seeking disqualification to establish the attorney-client
burden
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relationshi p."' (Shen v, Miller (2012) 212 Cal.App.4th 48, 56-57 [150 Cal. Rptr. 3d
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7831.)" Id. at245.
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Thus, Wildwood must establish that there was an attorney client relationship
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between it and counsel. Oaks Managentent Corp. v. Superior Court (2006) 145 Cal' App.
25
4Ih 453,465-66; Shen v. Miller, supra. Neither Wildwood nor Woods provide any
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evidence that there was or is an attorney client relationship and hence they lack standing to
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even bring the motion.
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CILMORE MAGNESS JANISSE
I
09898-0001\470953.
A PRorsstoNAL CoRTRATIoN
POST OFFICE BOX 2890?
MEMORANDUM OF POINTS
FRESNO, CALIFORNIA 93?29.8907 AND AUTHOzuTIES rN OPPOSITION TO MOTION TO DISQUALIFY
COUNSEL
1 ln fact, no declarations or affidavits are submitted with the motion that
2 would even begin to substantiate the existence of an attorney client relationship between
a
J Wildwogd or Woocls and counsel fbr Sunsweet or Delicious Foods. The only "evidence"
4 subrnitted is a request foriudicial notice of the November 2015 complaint that was filed.
5 That fails to show standing as required. For that reason alone the motion should be denied.
6 Even if that is not the case, the laok of evidence presented to show what the
7 alleged conflict rnight be should be fatal to the motion. The presentation ignores what
8 happened over the ensuing three years including the fact that the pleadings were
9 challenged and now rest on a third amended complaint in the related case,
t0 15CECGQ03406, in which Sunsweet Fresh is no longer a party. The contention is that
ll shows that counsel is representing both the Defbndant here and the Plaintiff in that case but
12 that is not the analysis the court must make.
13 Wilclwood and Woods rely on Blue Water Sunset LLC v. Markowitz (2011)
t4 lg2 Ca\. App. 4t" 477 butrnake no ef'fort to actually analyze the case or the cases that
l5 fbllow. Essentially Blorc l[/ater, based on the facts before it, concluded that there oould be
o'vicarious standing." The Blue court first held that because there was no attorney
t6 Water
t7 client relationship, there was no standing. It created an exception because the attorney had
18 filed substantive rnotions on behalf oflboth the nominal corporate defbndant and the
I9 allegecl wrongdoer. The motion was to disqualify the attorney who purported to represent
20 the wrongcl.oers and the entity. Here there are no allegations of any wrongdoing by either
2l Delicicrus Foods or Sunsweet Fresh. Blue Water is limited to those facts and to the
22 derivative nature of the suit at hand. This action is not derivative.
23 So to try to avoid that issue, Wildwood refers to the related case. Without
24 any real analysis it contends that counsel must be disqualified because there was a
25 clerivative suit tiled. ln and of itself, however, that does not disqualify counsel. Jacuzzi v.
(1966) 243 Cal. App. 2d 1,35-36; Shen, supra. '['he issue really is
26 Jacuzzi Brothers, Inc,.
27 whether there is a conflict of interest at all because of'the related case. The answer is no.
28 Wilclrvood in a conclusory fashion contends that there is a conllict of interest
GILMOREMACNESS JANISSE
I
09898-0001\4709s3.
A PRot'$sroNAL CoRTRATIoN 4
POST OFFICE BOX 28907
MEMORANDUM OF POINTS
FRESNO, CALIFORNIA 93729.8'07 AND AUTHORITIES IN OPPOSITION TO MOTION TO DISQUALIFY
COUNSEL
1 but never identifies what the actual conflict is. More important it never explains why it, as
2 a member of the sams limited liability company, can sue it for damages without there
J being a conflict of interest on its side. It is not in the best interests clf the limited liability
4 company to be sued by one of its members and it would have a conllict in its
5 representation of Wildwood, as a member of the I-,LC in defiending the claims of
6 wrcrngdoing ancl suing the very same LLC as a third pafty vendor. Its hands are not clean
7 in this contention but it shows that this is nothing lnore than a tactic.
I All that aside, though, as the courts have analyzed this issue, the issue is
9 whether there is a conflict of interest presented. E.g., .Iarvis v. Jarvis (2019) 33 Cal. App.
10 5tt'I13, 133-34 fpartnership dispute]. There is no effort to even explain what the conflict
11 is so the motion must fail.
t2 The related case seeks to reoover damages fbr the wrongf-ul de facto
t3 dissolution of Sunsweet Fresh by the actions of Wildwood and Woods. The cross
l4 complaint here is not in conflict with those clairns in anyway. lndeed it essentially seeks
15 the sarne recovery. There is no conflict presented and hence disqualilication is
t6 inappropriate.
l7 WILDWOOD IS JUS T PLA G TACTICAL G HERE
l8 The original suit was filed almost three years ago. There have been many
t9 motions in which Wildwood and Woods, as Defendants in the related case, have
20 challenged the pleadings and contested the right of Sunsweet Fresh to bring claims here.
2t Throughout the process though neitlier Wildwood nor Woods have raised any issue about
22 potential conflicts of interest. The delay is a factor to consider in whether to permit
23 disqualification at this stage assuming that otherwise there might be a basis fbr it. Delay in
24 raising the issue rnay be a basis fbr denial. 8,g., River West Inc. v. Nickel(1987) 188 Cal.
25 App.3cl 1297,1311; Trust Corp. of Montanav. Piper Ait'cra.ft Corp. (9th Cir. 1983) 701 F,
26 2d 85,87-88. As explained in Liberty lt[ational Enterprises LP v. Chicago Title [ns.
27 Co,.(2011) 194 Cal. App. 4Lt'839, 845 "Attorney disqualification czrn be impliedly waived
28 by failing to bring the motion in a timely manner.o' The cases discuss this in the context
CILMORE MAGNESS JANISSE
I
09898-0001\470953.
A PRoFEsstoNAL CoRTRATIoN 5
POST OFFICE BOX 2890?
MEMORANDUM OF POINTS
FRESNO, CALIFORNIA 93729.8907 AND A UTHORITIES IN OPPOSITION TO MOTION TO DISQUALIFY
COUNSEL
1 that there must be preiudice to the delay but that is shown here as counsel for Delicious
2 Foods has been working on this fbr almost three years at this point without this issue ever:
J arising.
4 This goes to the court's recognition that motions to disqualify are often
5 tactics to deny the party its counsel of choice or to cause delay. fr..g., White v. Superior
6 Court (1979) 98 Cal. App. 3d 51,54-55. Such is the oase here. The pattern by Wildwood
7 here is to file motion after motion challenging the case but never getting to the merits.
8 Now when it appears the pleadings are set and the cases will proceed, it seeks to disqualiff
9 counsel in a tactical move without showing any actual conflict and without showing any
l0 standing. The purpose of the motion is to delay.
1t CONC ON
T2 The motitln should be denied.
13 DATED: May 2,2019 GILMORE MAGNESS JANISSE
t4
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By
t6 David M. Gilmore
Attorneys for Defendant and Cross-
t7
Complainant
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GILMORE MAGNESS JANISSE
09898-000 l\470953.1
A PRoFssloNAL CoRTRATIoN 6
POST OFFICE BOX 28907
MEMORANDUM OF POINTS
FRESNO, CALIFORNIA 93?29.890? AND AUTHOzuTTES IN OPPOSITION TO MOTION TO DISQUALIFY
COUNSEL
I PROOF OF SERVICE
2 Wildwood Packing & Cooling, [nc. v. Sunsweet Fresh Stone Fruit
Case No. 18CECG03169
J
STATE OF CALIFORNIA, COUNTY OF FRESNO
4
At the time of service, I was over 18 years of age and not a parly to this action. I
5 am employed in the County of Fresno, Stateof California. My business address is Post
Office Box 28907, Fresno, CA 93729-8907.
6
On May 2,2019,I served true copies of the following document(s) described as
7 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
MOTION TO DISQUALIFY COUNSEL on the interested parties in this action as
8 follows:
9 Michael J.F. Smith
John L. Mieliazzo
10 Michael J.f'l Smittr, a Professional
Corporation
11 1391 West Shaw Avenue, Suite D
Fresnoo CA937II
l2 Fax: (559) 229-3903
Email : mi fsm ithrZDmi ltm ith.conr :
l3 imigliazzo 6,mi fsmith. c om
t4
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t6
t7 BY OVERNIGHT DELMRY: I enclosed said document(s) in an envelope or
oackase orovided bv the overnieht service carrier and addressed to the oersons at the
18 hOOreisei listed in tfie Service L'ist. I placed the envelope or package for collection and
overnight delivery at an office or a regularly utilized drop box of the overnight service
19 carrieior deliver,Sd such document(s)"to a iourier or driver authorized by thE overnight
service carrier to receive documents.
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I declare under penalty of perjury under the laws of the State of California that the
2t foregoing is true and correct.
22 Executed on May 2,2019, at Fresno, Cali
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GILMORE MAGNESS JANISSE
I
09898-0001\470953.
A PRoFsstoNAL CoRTRATIoN
POSTOFFICE BOX 2890?
7
93?29.8'07
FRESNO, CALIFORNIA
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO DISQUALIFY
COUNSEL