arrow left
arrow right
  • CONSOLIDATED WITH 15CECG03406 LEAD CASE09 Unlimited - Other Collections document preview
  • CONSOLIDATED WITH 15CECG03406 LEAD CASE09 Unlimited - Other Collections document preview
  • CONSOLIDATED WITH 15CECG03406 LEAD CASE09 Unlimited - Other Collections document preview
  • CONSOLIDATED WITH 15CECG03406 LEAD CASE09 Unlimited - Other Collections document preview
  • CONSOLIDATED WITH 15CECG03406 LEAD CASE09 Unlimited - Other Collections document preview
  • CONSOLIDATED WITH 15CECG03406 LEAD CASE09 Unlimited - Other Collections document preview
  • CONSOLIDATED WITH 15CECG03406 LEAD CASE09 Unlimited - Other Collections document preview
  • CONSOLIDATED WITH 15CECG03406 LEAD CASE09 Unlimited - Other Collections document preview
						
                                

Preview

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 6 7 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, 20 v 2l WILDWOOD PACKING AND 22 COOLING, INC., LUKE WOODS, ROES 1-50, 23 Cross-Defendants. 24 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 11 LLC. As to Woods that is not correct. He was never a member so he has no standing t2 whatsoever to raise the issue here. 13 As to Wildwood, itis not as simple as it suggests. As explained in Coldren l4 v. Hart, King & Coldren, Inc. (2015) 239 Cal. App. 4th 237, "Standing generally requires 15 that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest' t6 fCitation.] A'stancling' requirement is implicit in disqualification tnotions. Generally, t7 before the disqualitlcation of an attorney is proper, the cornplaining party must have or 18 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].) 20 o'oThe is on the party seeking disqualification to establish the attorney-client burden 2l relationshi p."' (Shen v, Miller (2012) 212 Cal.App.4th 48, 56-57 [150 Cal. Rptr. 3d 22 7831.)" Id. at245. 23 Thus, Wildwood must establish that there was an attorney client relationship 24 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 26 evidence that there was or is an attorney client relationship and hence they lack standing to 27 even bring the motion. 28 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 15 By t6 David M. Gilmore Attorneys for Defendant and Cross- t7 Complainant 18 r9 20 2l 22 23 24 25 26 27 28 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 15 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. 20 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 23 24 25 26 27 28 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