Filed 6/14/13 Pekin v. Scagliotti CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


PATRICK PEKIN,                                                       H035867
                                                                    (San Benito County
         Plaintiff and Appellant,                                    Super. Ct. No. CU-03-00150)

         v.

RICHARD SCAGLIOTTI, et al.,

         Defendants and Respondents.



         Patrick Pekin (Pekin) sued Richard Scagliotti (Scagliotti), as an individual and a
former member of the San Benito County Board of Supervisors (Board), the Board, and
the San Benito County Financing Corporation (SBCFC), "a wholly owned subsidiary of
San Benito County" (County). In this appeal, Pekin is challenging the trial court's order
denying his motion to disqualify opposing counsel, Michael Serverian.1 Pekin had
alleged that Serverian's joint representation of Scagliotti and the County involved a
disqualifying actual conflict of interest. The County as an entity is not a separately
named defendant.
         We affirm the court's order refusing to disqualify attorney Serverian.


1
        An order denying a motion to disqualify opposing counsel is an appealable order.
(Meehan v. Hopps (1955) 45 Cal.2d 213, 215-217; see Code Civ. Proc., § 904.1, subd.
(a)(6).)
                                                             1
                                             I
                                    Procedural History
       Plaintiff Pekin's eighth amended verified complaint, filed August 28, 2007,
apparently was the operational pleading at the time of Pekin's disqualification motion. It
includes 26 separate "counts," 25 against defendant Scagliotti and one only against
defendant Board doing business as (dba) defendant SBCFC. None of the causes of action
are against both defendant Scagliotti and defendants Board and SBCFC.
       The complaint alleges that the SBCFC is "a shell, a wholly owned subsidiary of
San Benito County." It also avers that Scagliotti was a former member of the Board, the
SBCFC's Board of Directors, and the Board of Directors of the Council of Governments
(COG). Scagliotti allegedly "left office at both the County and COG at the end of
December, 2004."
       The complaint charges Scagliotti with violating Government Code section 1090,
which provides that a public officer or employee "shall not be financially interested in
any contract made by them in their official capacity, or by any body or board of which
they are members."2 He also alleges multiple violations of the Political Reform Act of
1974 (PRA) (§§ 81000 to 91014). Pekin seeks to hold Scagliotti civilly liable for making
or influencing governmental decisions while having a prohibited financial interest and
failing to comply with disclosure requirements.3


2
       "Every contract made in violation of any of the provisions of Section 1090 may be
avoided at the instance of any party except the officer interested therein." (Gov. Code,
§ 1092, subd. (a).) All further statutory references are to the Government Code unless
otherwise stated. "It is settled law that where a contract is made in violation of section
1090, the public entity involved is entitled to recover any compensation that it has paid
under the contract without restoring any of the benefits it has received. [Citations.]"
(Finnegan v. Schrader (2001) 91 Cal.App.4th 572, 583.)
3
       Section 87100 states: "No public official at any level of state or local government
shall make, participate in making or in any way attempt to use his official position to
influence a governmental decision in which he knows or has reason to know he has a
                                             2
       Count four, the only cause of action against the Board and SBCFC, seeks to
compel the Board dba SBCFC to "conduct an audit and stop waste of the public fisc."
Count four alleges the following. In 1998, the Board "created a 'dummy corportation for
debt issuance,' " the SBCFC. The "SBCFC has no separate existence or entity other than
through Defendant [Board]" and "[t]here is such a unity of interest and ownership that the
individuality, or separateness of the entities does not exist." The SBCFC "purchased a
commercial building using some space for county government purposes and renting the
rest for profit." The SBCFC "is actually a for profit corporation" which is "required to
report such profits for federal and state tax purposes." The "Board has not reported
where the profits of SBCFC have been placed or who is in charge of them." "Internal
memorandum of SBCFC show that during its entire existence, rents have been
unaccounted for, not received, or misallocated." The building owned by the SBCFC "has
been wastefully underutilized" and "its vacancy rate was unreasonably high due to
wasteful mismanagement."



financial interest." Under section 87203, public officers, including county supervisors,
must file annual statements of economic interests. (See § 87200, Cal. Code Regs., tit. 2,
§ 18723.) Pekin is seeking recovery under the PRA pursuant to section 91004 and
91005. Section 91004 states: "Any person who intentionally or negligently violates any
of the reporting requirements of this title shall be liable in a civil action brought by the
civil prosecutor or by a person residing within the jurisdiction for an amount not more
than the amount or value not properly reported." Under section 91005, a county
supervisor "who realizes an economic benefit as a result of a violation of Section 87100
or of a disqualification provision of a conflict of interest code is liable in a civil action
brought by the civil prosecutor or by a person residing within the jurisdiction for an
amount up to three times the value of the benefit." (§ 91005, subd. (b), see § 87200.)
Section 91009 provides in pertinent part: "If a judgment is entered against the defendant
or defendants in an action brought under Section 91004 or 91005, the plaintiff shall
receive fifty percent of the amount recovered. The remaining fifty percent shall be
deposited in the General Fund of the state. In an action brought by the civil prosecutor,
the entire amount recovered shall be paid to the general fund or treasury of the
jurisdiction."
                                              3
       An answer to that complaint was filed on behalf of all defendants in October 2007.
As to count four, defendants admitted that the Board is the Board of Directors for the
SBCFC. The answer stated numerous affirmative defenses.
       The parties' briefs indicate that the matter went to trial but a mistrial was declared.
Although plaintiff Pekin claims on appeal that at least 14 of the causes of action were
proven at trial, the appellate record does not reflect that any claim was finally
adjudicated.
       On April 29, 2010, Pekin filed a motion to disqualify opposing counsel on the
ground that the County and defendant Scagliotti were being "jointly represented by
outside counsel provided by the County" and this involved "a conflict of interest between
two current clients . . . , the public and the corrupt official." Pekin argued: "In this case
Michael C. Serverian represents both the public entity charged with vigorously enforcing
the provisions of the PRA and the public official who has violated the same law. This
strikes at the integrity of the governmental and judicial systems, is an affront to the public
which has a right [to] expect that the government will uphold, not avoid the law, and
cannot be permitted by this Court." Pekin maintained that the County should have
discontinued providing a defense for Scagliotti under the authority of section 995.2,
which implied that the County had been providing a defense to Scagliotti pursuant to
section 995.
       In supporting argument, Pekin stated, without citation to any supporting authority,
that the County was "prohibited by the PRA itself from arguing on behalf of one of its
present or former officials for the application of affirmative defenses to defeat liability on
meritorious charges." He indicated that the County should have been enforcing section
1090 and the PRA "for the 'public trust.' " Pekin cited San Diego Navy Federal Credit
Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358 for the proposition that
"some actual conflicts are so fundamental that they cannot be waived."

                                              4
       Counsel for the parties stipulated that the sole argument at the June 18, 2010
hearing would be Pekin's motion to disqualify Serverian from continued representation of
the County and Scagliotti based upon an actual conflict of interest.
       In the opposition to the disqualification motion, attorney Severian contended that
Pekin lacked standing to bring the motion since Pekin was not a client or former client of
him or his law firm. Attorney Serverian contended there was no actual conflict between
the County and Scagliotti since the "only relief sought against the County is for an audit
and accounting (Count 4 of the Eighth Amended Complaint)" and the "remaining counts
are to recover monies from Scagliotti individually, and not from the public entity."
Attorney Serverian also argued plaintiff Pekin had ignored a public entity's statutory duty
under section 995 to provide for the defense of any civil action or proceeding brought
against an employee "on account of an act or omission in the scope of his employment as
an employee of the public entity." He pointed out that a public entity could be liable if a
defense was not provided.4 He claimed that plaintiff did not know whether the County
had obtained a reservation of rights under section 8255 or whether defendant Scagliotti
had signed a conflict waiver.

4
        Section 996.4 provides in part: "If after request a public entity fails or refuses to
provide an employee or former employee with a defense against a civil action or
proceeding brought against him and the employee retains his own counsel to defend the
action or proceeding, he is entitled to recover from the public entity such reasonable
attorney's fees, costs and expenses as are necessarily incurred by him in defending the
action or proceeding if the action or proceeding arose out of an act or omission in the
scope of his employment as an employee of the public entity, but he is not entitled to
such reimbursement if the public entity establishes (a) that he acted or failed to act
because of actual fraud, corruption or actual malice, or (b) that the action or proceeding is
one described in Section 995.4."
5
        Section 825 et seq. generally "require public entities to pay claims and judgments
against public employees that arise out of their public employment where the public
entity has been tendered the defense." (Legis. Com. com.—Sen, 32 Pt.1 West's Ann.
Gov. Code (2012 ed.) foll. § 825, p. 455; see §§ 825, 825.2, 825.4, 825.6.) Section 825,
subdivision (a), provides in part that "where the public entity conducted the defense
                                             5
       Attorney Serverian also asserted that the disqualification motion was untimely
since he had been counsel for about four years.6 He argued that "[i]f another attorney
was required to take over the defense at this stage, the fees incurred simply in review of
the documents would be immense" and "would cause an undue financial burden on the
defendants."
       In his written reply, Pekin claimed standing as "a CCP 526a Taxpayer."7 He
argued that attorney Serverian's representation that SBCFC was his client, not the
County, was "an attempt to conceal Serverian's actual, conflicting, joint representation of
the County and Scagliotti . . . ." Pekin stated that, since his November 1, 2007 letter to
the County's County Counsel, "Attorney Serverian has been appearing only for
Defendant Scagliotti and Defendant [SBCFC] and not for the County." But according to




pursuant to an agreement with the employee or former employee reserving the rights of
the public entity not to pay the judgment, compromise, or settlement until it is established
that the injury arose out of an act or omission occurring within the scope of his or her
employment as an employee of the public entity, the public entity is required to pay the
judgment, compromise, or settlement only if it is established that the injury arose out of
an act or omission occurring in the scope of his or her employment as an employee of the
public entity."
6
         The joint appendix contains a substitution of attorney form filed in May 2006
indicating that attorney Serverian was replacing attorney Nancy Miller as counsel for
defendants Scagliotti, Board, and SBCFC.
7
         Code of Civil Procedure section 526a authorizes a "citizen resident" taxpayer to
obtain an injunction restraining and preventing the illegal expenditure of public funds.
The primary purpose of that section is "to 'enable a large body of the citizenry to
challenge governmental action which would otherwise go unchallenged in the courts
because of the standing requirement.' [Citation.]" (Blair v. Pitchess (1971) 5 Cal.3d 258,
267-268, & fn. 4.) The section has been extended "to include actions brought by
nonresident taxpayers (Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13, 18-20
. . .)." (Id. at p. 268.) The Supreme Court has also " permitted taxpayers to sue on behalf
of a city or county to recover funds illegally expended. (Osburn v. Stone (1915) 170 Cal.
480, 482 . . . .)" (Ibid.)
                                              6
Pekin, attorney Serverian had not withdrawn as counsel pursuant to Code of Civil
Procedure section 284. Pekin asked the superior court to find that, prior to trial, "the
County had to know that in defending Scagliotti the County would be vigorously arguing
every conceivable ground for the avoidance of the enforcement of the PRA . . . ."
       At the hearing on the disqualification motion, attorney Serverian stated that the
County was not a party to the case. He argued that there was no conflict of interest since
there were "no causes of action in which plaintiff seeks recovery against both [SBCFC]
and Richard Scagliotti." He emphasized that he had been involved as counsel in this case
since 2006. He asserted that plaintiff was upset because the County has exercised its
right to defend one of its former supervisors under section 995.2. The trial court stated
that "[t]he premise of [Pekin's] position is that the County has an affirmative duty to
enforce the PRA [Political Reform Act], and by defending Scaliotti, that that puts it in a
conflict of interest. I think that's his premise." Plaintiff's counsel, Michael Pekin,
responded, "Absolutely."
       In its written ruling, filed June 25, 2010, the superior court denied Pekin's
disqualification motion. The trial court also sustained the objection to Pekin's post-
hearing briefs.
       The court observed that defendant "Scagliotti was not named as a defendant or
charged in Count 4," the only count against the Board and SBCFC. The court stated that
the parties had advised it that count four was not under consideration during the present
phase of the proceedings. The court had not found any pleading in which attorney
Serverian had "answered or responded on behalf of the County."8 The court determined



8
       Attorney Serverian filed an answer on behalf of all defendants, including the
Board, on October 25, 2007. The identity of a governmental client can be a complicated
question. We note that generally "[a] county may exercise its powers only through the
board of supervisors or through agents and officers acting under authority of the board or
                                              7
that Pekin had failed to establish standing to bring the disqualification motion. In any
case, attorney Serverian was representing defendants Scagliotti and SBCFC but he was
not representing the County, the County Counsel was representing the County, and any
payments made by the County to attorney Serverian pursuant to section 995 did not
establish a conflict of interest. It found no support in the law for Pekin's contentions that
Scagliotti had been proven guilty or admitted noncompliance with the PRA and therefore
he was not entitled to a defense under section 995.
       The court also stated: "Mr. Serverian has been in this case since 1996. Plaintiff
should have made this challenge years ago. Instead, he jawboned the issue and then
when we were getting to some issues where this case could have progressed, he filed this
challenge. Isn't that laches?"
                                               II
                     Ruling on Motion to Disqualify Opposing Counsel
A. Standard of Review Applicable to Ruling on Motion to Disqualify Counsel
       " 'A trial court's authority to disqualify an attorney derives from the power
inherent in every court "[t]o control in furtherance of justice, the conduct of its ministerial
officers, and of all other persons in any manner connected with a judicial proceeding
before it, in every matter pertaining thereto." [Citations.]' (People ex rel. Dept. of
Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 . . . .)
'Generally, a trial court's decision on a disqualification motion is reviewed for abuse of
discretion. [Citations.]' (Id. at p. 1143 . . . .) As to disputed factual issues, a reviewing
court's role is simply to determine whether substantial evidence supports the trial court's
findings of fact; 'the reviewing court should not substitute its judgment for . . . express or
implied [factual] findings [that are] supported by substantial evidence. [Citations.]'


authority conferred by law." (§ 23005.) But here the Board appears to have been sued as
the governing body of the SBCFC.
                                               8
(Ibid.) As to the trial court's conclusions of law, however, review is de novo; a
disposition that rests on an error of law constitutes an abuse of discretion. (Haraguchi v.
Superior Court (2008) 43 Cal.4th 706, 711–712 . . . ; People v. Superior Court
(Humberto S.) 43 Cal.4th 737, 742.) The trial court's 'application of the law to the facts is
reversible only if arbitrary and capricious.' (Haraguchi, supra, at p. 712 . . . .)"9 (In re
Charlisse C. (2008) 45 Cal.4th 145, 159.)
       " 'A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]"
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "[A] reviewing court, should not
disturb the exercise of a trial court's discretion unless it appears that there has been a
miscarriage of justice." (Id. at p. 566.)
       "It has long been the general rule and understanding that 'an appeal reviews the
correctness of a judgment as of the time of its rendition, upon a record of matters which
were before the trial court for its consideration.' [Citation.]" (In re Zeth S. (2003) 31
Cal.4th 396, 405.) "[N]ormally 'when reviewing the correctness of a trial court's
judgment, an appellate court will consider only matters which were part of the record at
the time the judgment was entered.' [Citation.]" (Vons Companies, Inc. v. Seabest




9
         On appeal, plaintiff Pekin has proceeded by way of a joint appendix and certified
transcripts. "An appendix must not" "[c]ontain documents or portions of documents filed
in superior court that are unnecessary for proper consideration of the issues." (Cal. Rules
of Court, rule 8.124(b)(3)(A).) The inclusion of unnecessary documents does not alter
the scope of our review. We have not agreed to accept further evidence or make factual
determinations. (See Code Civ. Proc., § 909; Cal. Rules of Court, rules 8.54, 8.252 (b)
and (c).) Pekin did not transform this court into a trier of fact by providing a transcript of
trial testimony and other oral proceedings.
                                               9
Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Pekin bears the "burden of showing error
by an adequate record. [Citations.]" (In re Kathy P. (1979) 25 Cal.3d 91, 102.)
B. Legal and Ethical Responsibilities of Attorneys
       Each attorney who is a member of the California State Bar has a duty to preserve
client confidences (Bus. & Prof. Code, § 6068, subd. (e); Cal. State Bar Rules of Prof.
Conduct, rule 3–100)10 and to avoid interests that are adverse to the client's interests
(Rules of Prof. Conduct, rules 3–300, 3–310).
       "Conflicts of interest commonly arise in one of two factual contexts: (1) in cases
of successive representation, where an attorney seeks to represent a client with interests
that are potentially adverse to a former client of the attorney; and (2) in cases of
simultaneous representation, where an attorney seeks to represent in a single action
multiple parties with potentially adverse interests." (In re Charlisse C., supra, 45 Cal.4th
145, 159.) "Two ethical duties are entwined in any attorney-client relationship. First is
the attorney's duty of confidentiality, which fosters full and open communication between
client and counsel, based on the client's understanding that the attorney is statutorily
obligated (Bus. & Prof. Code, § 6068, subd. (e)) to maintain the client's confidences.
(SpeeDee, supra, 20 Cal.4th at p. 1146 . . . .) The second is the attorney's duty of
undivided loyalty to the client. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 282 . . . .)
These ethical duties are mandated by the California Rules of Professional Conduct.
(Rules Prof. Conduct, rule 3–310(C) & (E).)" (City and County of San Francisco v.
Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846.)
       "The primary value at stake in cases of simultaneous or dual representation is the
attorney's duty-and the client's legitimate expectation-of loyalty, rather than



10
       All further references to the Rules of Professional Conduct are to the California
State Bar Rules of Professional Conduct.
                                              10
confidentiality." (Flatt v. Superior Court (1994) 9 Cal.4th 275, 284.) "The principle of
loyalty is for the client's benefit . . . ." (Id. at p. 286, fn. 4.)
       A "[c]onflict of interest between jointly represented clients occurs whenever their
common lawyer's representation of the one is rendered less effective by reason of his
representation of the other." (Spindle v. Chubb/Pacific Indemnity Group (1979) 89
Cal.App.3d 706, 713; cf. ABA Model Rules Prof. Conduct, rule 1.7(a).) "The
paradigmatic instance of such prohibited dual representation-one roundly condemned by
courts and commentators alike-occurs where the attorney represents clients whose
interests are directly adverse in the same litigation." (Flatt v. Superior Court, supra, 9
Cal.4th at p. 285, fn. 3.)
       Rule 3-310(C) of the Rules of Professional Conduct prohibits attorneys from
accepting or continuing concurrent representation of clients whose interests actually
conflict, absent the "informed written consent" of each client.11 "Informed written
consent" is defined as "the client's or former client's written agreement to the
representation following written disclosure . . . ." (Rules Prof. Conduct, rule 3-
310(A)(2).) "[T]he purpose of the rules against representing conflicting interests is not


11
         Rule 3-310(C) of the Rules of Professional Conduct states in pertinent part: "A
member shall not, without the informed written consent of each client: [¶] (1) Accept
representation of more than one client in a matter in which the interests of the clients
potentially conflict; or [¶] (2) Accept or continue representation of more than one client
in a matter in which the interests of the clients actually conflict . . . ." (Italics added.)
"Subparagraphs (C)(1) and (C)(2) [of Rule 3-310] are intended to apply to all types of
legal employment, including the concurrent representation of multiple parties in litigation
. . . . In such situations, for the sake of convenience or economy, the parties may well
prefer to employ a single counsel, but a member must disclose the potential adverse
aspects of such multiple representation [citation] and must obtain the informed written
consent of the clients thereto pursuant to subparagraph (C)(1). Moreover, if the potential
adversity should become actual, the member must obtain the further informed written
consent of the clients pursuant to subparagraph (C)(2)." (Discussion foll. Rules Prof.
Conduct, rule 3-310.)
                                                  11
only to prevent dishonest conduct, but also to avoid placing the honest practitioner in a
position where he may be required to choose between conflicting duties or attempt to
reconcile conflicting interests. [Citations.]" (Woods v. Superior Court (1983) 149
Cal.App.3d 931, 936.)
       The official discussion following Rule 3-310 of the Rules of Professional Conduct
recognizes that "[t]here are some matters in which the conflicts are such that written
consent may not suffice for non-disciplinary purposes. (See Woods v. Superior Court
(1983) 149 Cal.App.3d 931 . . . ; Klemm v. Superior Court (1977) 75 Cal.App.3d 893
. . . ; Ishmael v. Millington (1966) 241 Cal.App.2d 520 . . . .)" A court observed in
Klemm v. Superior Court (1977) 75 Cal.App.3d 893, 898: "Though an informed consent
be obtained, no case we have been able to find sanctions dual representation of
conflicting interests if that representation is in conjunction with a trial or hearing where
there is an actual, present, existing conflict and the discharge of duty to one client
conflicts with the duty to another. [Citations.]" Under Rule 1.7(b)(1) of the American
Bar Association (ABA) Model Rules of Professional Conduct,12 representation is
prohibited even with a client's consent "if in the circumstances the lawyer cannot
reasonably conclude that the lawyer will be able to provide competent and diligent
representation. See Rule 1.1 (competence) and Rule 1.3 (diligence)." (ABA Model
Rules Prof. Conduct, Com. to Rule 1.7, para. [15].)
C. Lack of Standing to Bring Motion to Disqualify Attorney
       "Standing generally requires that the plaintiff be able to allege injury, that is, an
invasion of a legally protected interest. (Angelucci v. Century Supper Club (2007) 41



12
        "[A]lthough California has not adopted the ABA Model Rules, they may be
'helpful and persuasive in situations where the coverage of our Rules is unclear or
inadequate.' [Citations.]" (Frye v. Tenderloin Housing Clinic, Inc. (2006) 38 Cal.4th 23,
52, fn. 12.)
                                              12
Cal.4th 160, 175 . . . .)" (Great Lakes Const., Inc. v. Burman (2010) 186 Cal.App.4th
1347, 1356.) In this appeal, we are not concerned with Pekin's general standing to sue.
       "A 'standing' requirement is implicit in disqualification motions. Generally, before
the disqualification of an attorney is proper, the complaining party must have or must
have had an attorney-client relationship with that attorney. (Strasbourger Pearson Tulcin
Wolff Inc. v. Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399, 1404 . . . .)" (Great
Lakes Const., Inc. v. Burman, supra, 186 Cal.App.4th at p. 1356.)
       As indicated, in the court below, plaintiff Pekin claimed to have standing to bring
the disqualification motion as a section 526a taxpayer plaintiff. He argued that the
"County's payment for joint representation of the County and of the official in violation
of the PRA is an illegal expenditure of public funds" and taxpayers have standing "to take
legal action against illegal expenditure of public funds." While Pekin recites this
standing argument in his opening brief's procedural history section, he seems to abandon
it on appeal since the brief's argument section does not address the standing issue. He
raises the section 526a argument for the first time on appeal in a reply brief. Pekin also
baldly asserts in a reply brief that his standing to sue under the PRA "certainly
encompasses standing to bring the instant Motion to Disqualify Mr. Serverian" and cites
Kunec v. Brea Redevel. Agency (1997) 55 Cal.App.4th 511. In a supplemental reply
brief, Pekin contends for the first time that "the representations Mr. Serverian has made
to the Trial Court, and to this Court, denying his representation of the County; and the
conflict of interest presented by his joint, concurrent representation of Defendants
Scagliotti and the County, are ethical breaches that so infect the litigation that it impacts
[his] interest in a just and lawful determination of [his] anti-corruption claims."
       " '[T]he rule is that points raised in the reply brief for the first time will not be
considered, unless good reason is shown for failure to present them before. [Citations.]'
[Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) "Obvious reasons

                                               13
of fairness militate against consideration of an issue raised initially in the reply brief of an
appellant. [Citations.]" (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295-296,
fn. 11.)
       Moreover, to the extent that Pekin now presents new theories of standing to
overturn the court's ruling, they are deemed forfeited. "Appellate courts will generally not
consider new theories raised for the first time on appeal. (In re Marriage of Moschetta
(1994) 25 Cal.App.4th 1218, 1227 . . . .)" (RN Solution, Inc. v. Catholic Healthcare West
(2008) 165 Cal.App.4th 1511, 1518; see Panopulos v. Maderis (1956) 47 Cal.2d 337, 341
["the general rule is especially true when the theory newly presented involves
controverted questions of fact or mixed questions of law and fact"].)
       In any case, none of plaintiff's standing arguments have merit. Even if Pekin has
standing to sue under the PRA or section 526a, it does not follow that such standing
automatically confers standing on a plaintiff to bring a motion to disqualify opposing
counsel. We have seen no authority to that effect and the cases cited by Pekin do not
address this issue. Moreover, as we discuss in more detail below, the County's provision
for Scagliotti's defense is authorized by statute (§§ 995, 996) and cannot be deemed an
"illegal expenditure" of the County's funds.
       We are aware of existing case law suggesting that a nonclient party may have
standing to bring a motion to disqualify opposing counsel to protect the integrity of the
judicial process in particularly egregious situations where continued representation
affects the fair adjudication of the party's claims. For example, in Kennedy v. Eldridge
(2011) 201 Cal.App.4th 1197, the plaintiff mother had standing in a paternity action to
bring a motion to disqualify opposing counsel who represented the defendant father even
though she had never been a client of opposing counsel or his law firm. The action
involved child custody and support issues, the plaintiff was the child's mother, the
defendant was the child's father, and opposing counsel was the paternal grandfather. (Id.

                                               14
at pp. 1200-1201.) Opposing counsel's law firm had previously represented the maternal
grandfather in a divorce case and confidential information obtained in that case could be
potentially misused against the plaintiff mother in the pending case. (Id. at pp. 1202,
1204-1209.)
       In Colyer v. Smith (C.D. Cal. 1999) 50 F.Supp.2d 966, which Pekin belatedly
cites, a federal court considered a plaintiff's motion to disqualify opposing counsel. The
court stated: "Generally, only the former or current client will have such a stake in a
conflict of interest dispute. . . . However, . . . in a case where the ethical breach so infects
the litigation in which disqualification is sought that it impacts the moving party's interest
in a just and lawful determination of her claims, she may have the constitutional standing
needed to bring a motion to disqualify based on a third-party conflict of interest or other
ethical violation. In such a case, moreover, the prudential barrier to litigating the rights
and claims of third parties should not stop a district court from determining the motion,
because such a limitation would be overcome by the court's inherent obligation to
manage the conduct of attorneys who appear before it and to ensure the fair
administration of justice. [Citation.] . . . Where the ethical breach is so severe that it
'obstructs the orderly administration of justice,' the party who finds his claims obstructed
has standing. [Citation.]" (Id. at pp. 971-972.)
       Although the federal court in Colyer recognized this nonclient theory of standing
to bring a motion to disqualify counsel, it denied the plaintiff's disqualification motion
because the plaintiff had failed to make an adequate showing of standing. (Id. at pp. 972-
973.) The court stated: "[Colyer's] broad interest in the administration of justice is
insufficiently concrete and particularized to support a finding of standing here. The
alleged conflict—if it exists—simply does not rise to the level where it infects the
proceedings and threatens Colyer's individual right to a just determination of his claims."
(Id. at p. 973.) The court also observed that "[t]he standing requirement protects against

                                               15
the strategic exploitation of the rules of ethics long disfavored by the Courts.
[Citations.]" (Ibid.; cf. S.E.C. v. King Chuen Tang (N.D. Cal. 2011) 831 F.Supp.2d 1130,
1143 [SEC did not have standing to bring a motion to disqualify opposing counsel where
it had no personal stake beyond the general interest in the fair administration of justice].)
       In this case, plaintiff Pekin failed to assert or make any showing in the motion
below that attorney Serverian's representation of his clients directly threatens or impairs
Pekin's "right to a just determination of his claims" (Colyer v. Smith, supra, 50 F.Supp.2d
at p. 973). Pekin has not affirmatively demonstrated that the trial court erred in
determining he lacked standing.
D. Substantive Merits
       Pekin's substantive arguments fail as well.
1. No Actual Conflict Established Based on Provision for Scagliotti's Defense
       Insofar as we can discern, Pekin's theory that attorney Serverian was concurrently
representing the County and Scagliotti was partly based upon the County's provision of a
defense to Scagliotti through attorney Serverian pursuant to section 995.
       Section 995 provides: "Except as otherwise provided in Sections 995.2 and 995.4,
upon request of an employee or former employee, a public entity shall provide for the
defense of any civil action or proceeding brought against him, in his official or individual
capacity or both, on account of an act or omission in the scope of his employment as an
employee of the public entity."13 Section 995.2 states several discretionary grounds for


13
        "[T]he Tort Claims Act was enacted in order to provide a comprehensive
codification of the law of governmental liability and immunity in California. [Citation.]
As part of its overall statutory scheme, the Tort Claims Act provides that in the usual
civil case brought against a public employee, a public entity is required to defend the
action against its employee (Gov. Code, § 995 et seq.) and to pay any claim or judgment
against the employee in favor of the third party plaintiff (§ 825 et seq.). A principal
purpose of the indemnification statutes is to assure 'the zealous execution of official
duties by public employees.' (Johnson v. State of California (1968) 69 Cal.2d 782,
                                             16
refusing to comply with the mandatory duty imposed by section 995. 14 Section 995.4
establishes a public entity's permissive authority to provide for the defense of actions or
proceedings brought by a public entity against its own employees or former employees
when seeking to "remove, suspend, or otherwise penalize" them or when taking action
against them as individuals. Where a public entity provides a defense upon request, it
may do so "by its own attorney or by employing other counsel for this purpose or by
purchasing insurance which requires that the insurer provide the defense." (§ 996.)
       Pekin seems to be suggesting that the County's relationship with Scagliotti and
attorney Serverian under section 995 is analogous to the contractual relationship between
an insurer, insured, and the attorney provided by the insurer to defend the insured. In the
insurance context, courts have concluded that an attorney hired by an insurer to defend an
insured "represents two clients, the insured and the insurer. (Lysick v. Walcom (1968)
258 Cal.App.2d 136, 146 . . . .)" (State Farm Mut. Auto. Ins. Co. v. Federal Ins. Co.
(1999) 72 Cal.App.4th 1422, 1429.) "In the absence of a conflict of interest between the
insurer and the insured that would preclude an attorney from representing both, the
attorney has a dual attorney-client relationship with insurer and insured. (Unigard Ins.
Group v. O'Flaherty & Belgum, supra, 38 Cal.App.4th at pp. 1236-1237.)" (Ibid.) "[I]t



792 . . . .)" (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1001,
fn. omitted.)
14
        Under section 995.2, "[a] public entity may refuse to provide for the defense of a
civil action or proceeding brought against an employee or former employee if the public
entity determines any of the following: [¶] (1) The act or omission was not within the
scope of his or her employment. [¶] (2) He or she acted or failed to act because of actual
fraud, corruption, or actual malice. [¶] (3) The defense of the action or proceeding by
the public entity would create a specific conflict of interest between the public entity and
the employee or former employee." (§ 995.2, subd. (a), italics added; see § 14 [" 'may' is
permissive"].) "For the purposes of this section, 'specific conflict of interest' means a
conflict of interest or an adverse or pecuniary interest, as specified by statute or by a rule
or regulation of the public entity." (§ 995.2, subd. (a)(3).)
                                             17
is customary for the insurer to control the defense it provides. (Spindle v. Chubb/Pacific
Indemnity Group (1979) 89 Cal.App.3d 706, 714 . . . .)" (Ibid.)
       In the well known case of San Diego Navy Federal Credit Union v. Cumis Ins.
Society, Inc. (1984) 162 Cal.App.3d 358 ("Cumis"), the court stated: "In the usual
tripartite relationship existing between insurer, insured and counsel, there is a single,
common interest shared among them. Dual representation by counsel is beneficial since
the shared goal of minimizing or eliminating liability to a third party is the same. A
different situation is presented, however, when some or all of the allegations in the
complaint do not fall within the scope of coverage under the policy. In such a case, the
standard practice of an insurer is to defend under a reservation of rights where the insurer
promises to defend but states it may not indemnify the insured if liability is found. In this
situation, there may be little commonality of interest." (Id. at p. 364, fn. omitted.) "A
conflict arises once the insurer takes the view a coverage issue is present." (Id. at p. 370.)
       In Cumis, the court held: "[T]he Canons of Ethics impose upon lawyers hired by
the insurer an obligation to explain to the insured and the insurer the full implications of
joint representation in situations where the insurer has reserved its rights to deny
coverage. If the insured does not give an informed consent to continued representation,
counsel must cease to represent both. Moreover, in the absence of such consent, where
there are divergent interests of the insured and the insurer brought about by the insurer's
reservation of rights based on possible noncoverage under the insurance policy, the
insurer must pay the reasonable cost for hiring independent counsel by the insured. The
insurer may not compel the insured to surrender control of the litigation (Tomerlin v.
Canadian Indemnity Co., supra, 61 Cal.2d 638, 648 . . . ; and see Nike, Inc. v. Atlantic
Mut. Ins. Co. (1983) 578 F.Supp. 948, 949). Disregarding the common interests of both
insured and insurer in finding total nonliability in the third party action, the remaining
interests of the two diverge to such an extent as to create an actual, ethical conflict of

                                              18
interest warranting payment for the insureds' independent counsel." (Cumis, supra, 162
Cal.App.3d at p. 375.) An insured's independent counsel in this situation is commonly
referred to as Cumis counsel. (See Simmons v. Ghaderi (2008) 44 Cal.4th 570, 575,
fn. 2.)
          The holding in Cumis has long been codified and partly superseded by statute.15
(See Civ. Code, § 2860.) Under the statute, an insured may waive any right to select
independent counsel. (Civ. Code, § 2860, subd. (e).)
          More recent insurance cases clarify that provision of a defense with a reservation
of rights does not necessarily create a conflict of interest between an insurer and an
insured that entitles the insured to independent counsel. (See e.g. Gafcon, Inc. v. Ponsor
& Assocs. (2002) 98 Cal.App.4th 1388, 1421-1422 ["a conflict of interest does not arise
every time the insurer proposes to provide a defense under a reservation of rights"; an
insured is not entitled independent counsel if the issue of coverage is independent of or
extrinsic to the issues in third party action]; Dynamic Concepts, Inc. v. Truck Ins.
Exchange (1998) 61 Cal.App.4th 999, 1007 ["A mere possibility of an unspecified
conflict does not require independent counsel"].)
          Even assuming that the County selected attorney Serverian and was paying for his
services in defending Scagliotti and such representation is analogous to representation of
an insured (but see Laws v. County of San Diego (1990) 219 Cal.App.3d 189, 191-192,
197-201 [refusing to require a County to provide independent counsel to officers being


15
        The statute recognizes that "a conflict of interest does not exist as to allegations or
facts in the litigation for which the insurer denies coverage; however, when an insurer
reserves its rights on a given issue and the outcome of that coverage issue can be
controlled by counsel first retained by the insurer for the defense of the claim, a conflict
of interest may exist." (Civ. Code, § 2860, subd. (b), italics added.) It states: "No
conflict of interest shall be deemed to exist as to allegations of punitive damages or be
deemed to exist solely because an insured is sued for an amount in excess of the
insurance policy limits." (Ibid.)
                                               19
sued for police misconduct based upon a Cumis-type analysis]), those facts do not in
themselves establish an actual conflict of interest. Rules of Professional Conduct, rule 3-
310(F) generally provides: "A member shall not accept compensation for representing a
client from one other than the client unless: [¶] (1) There is no interference with the
member's independence of professional judgment or with the client-lawyer relationship;
and [¶] (2) Information relating to representation of the client is protected as required by
Business and Professions Code section 6068, subdivision (e); and [¶] (3) The member
obtains the client's informed written consent . . . ."16 (Italics added.) The official
discussion following that rule states: "Paragraph (F) is not intended to abrogate existing
relationships between insurers and insureds whereby the insurer has the contractual right
to unilaterally select counsel for the insured, where there is no conflict of interest. (See
San Diego Navy Federal Credit Union v. Cumis Insurance Society (1984) 162
Cal.App.3d 358 [208 Cal.Rptr. 494].)"
       Plaintiff Pekin failed to establish below that the County's provision for Scagliotti's
defense under a reservation of rights created an actual conflict of interest between them in
the litigation. Even assuming the County was paying for attorney Serverian's services in
representing Scagliotti, Pekin did not demonstrate that this circumstance interfered with
Serverian's independent professional judgment, impaired his representation of a client,
compromised his duty of loyalty to a client, or required him to improperly divulge
confidences of a client (see Bus. & Prof. Code, § 6068, subd. (e), Rules of Professional
Conduct, rule 3-100; cf. Civ. Code, § 2860, subd. (f); ABA Model Rules Prof. Conduct,
Com. on Rule 1.7, para. [13] [Interest of Person Paying for a Lawyer's Service]). Further,
Pekin did not show that attorney Serverian had not obtained any informed written consent


16
       Under Business and Professions Code section 6068, subdivision (e), an attorney
has the general duty to "maintain inviolate the confidence, and at every peril to himself or
herself to preserve the secrets, of his or her client."
                                              20
necessary to enable him to represent Scagliotti in this action. Evidence that the County
was providing a defense for Scagliotti pursuant to section 995 was not enough to prove
an actual conflict of interest disqualifying attorney Serverian from representing defendant
Scagliotti.
2. Attorney Serverian's Representation of SBCFC
       Although the eighth amended complaint alleged that SBCFC was a "shell" and a
"dummy corporation," Pekin's disqualification motion was not predicated on the theory
that the County and its "wholly owned subsidiary" should be treated as the same entity
for purposes of analyzing whether an actual conflict of interest existed. (Cf. Morrison
Knudsen Corp. v. Hancock, Rothert & Bunshoft (1999) 69 Cal.App.4th 223, 227
[sufficient "unity of interest" between parent corporation and wholly owned subsidiary to
treat them as one entity for conflict purposes]; Brooklyn Navy Yard Cogeneration
Partners, L.P. v. Superior Court (Parsons Corp.) (1997) 60 Cal.App.4th 248, 253 ["only
in those limited circumstances where one corporation is the alter ego of the other should
parent and subsidiary corporations be treated as the same entity for conflict purposes"].)
Ordinarily, a shareholder of a corporation, even one that owns all the stock, is not
automatically the client of the corporation's attorney. (See Brooklyn Navy Yard
Cogeneration Partners, L.P. v. Superior Court (Parsons Corp.), supra, 60 Cal.App.4th at
pp. 254-255; see also Rules of Prof. Conduct, rule 3-600.)
       In any case, plaintiff Pekin indicated in his disqualification motion, and he
reiterates on appeal, that he is not claiming that there is an actual conflict of interest
between Scagliotti and the SBCFC.
3. Code of Civil Procedure Section 284
       Plaintiff Pekin's argument with regard to section 284 of the Code of Civil
Procedure is rather obtuse, but, insofar as we can discern, he is arguing that, since
attorney Serverian did not properly withdraw as provided by that section, he continues to

                                               21
concurrently represent the County and Scagliotti. The argument seems to be an attempt
to refute attorney Serverian's claim that he represented only the SBCFC and not the
County.
       Code of Civil Procedure section 284 provides: "The attorney in an action or
special proceeding may be changed at any time before or after judgment or final
determination, as follows: [¶] 1. Upon the consent of both client and attorney, filed with
the clerk, or entered upon the minutes; [¶] 2. Upon the order of the court, upon the
application of either client or attorney, after notice from one to the other." Code of Civil
Procedure section 285 states: "When an attorney is changed, as provided in the last
section, written notice of the change and of the substitution of a new attorney, or of the
appearance of the party in person, must be given to the adverse party. Until then he must
recognize the former attorney." The purpose of these statutes "is to have the record of
representation clear so the parties may be certain with whom they are authorized to deal."
(People v. Metrim Corp. (1960) 187 Cal.App.2d 289, 294.)
       Pekin's argument regarding the failure to properly substitute counsel adds nothing
to his contention that an actual conflict of interest arose from the County's provision for
Scagliotti's defense, a claim that we have already rejected.
       In his reply brief, Pekin's substitution of counsel argument transforms into a claim
that attorney Serverian failed to properly withdraw from representing the Board and,
therefore, he continues to concurrently represent the County and Scagliotti. Pekin did not
make this claim either below or in his opening appellate brief.
       As the moving party, the burden was on Pekin to clearly articulate his claims and
then present sufficient evidence to substantiate them in the court below. (See Evid. Code,
§§ 500, 550.) Pekin did not argue that attorney Serverian was continuing to represent the
Board despite indications that he no longer did and his ongoing concurrent representation
of the Board and Scagliotti involved a prohibited actual conflict of interest. New theories

                                             22
involving unresolved questions of fact cannot be advanced for the first time on appeal.
(See Panopulos v. Maderis, supra, 47 Cal.2d at p. 341.) Moreover, this contention was
cogently raised for the first time in the reply brief and we deem it forfeited. (See People
v. Smithey , supra, 20 Cal.4th at p. 1017, fn. 26; Varjabedian v. City of Madera, supra, 20
Cal.3d at p. 295, fn. 11.)
       In any case, we point out that the Rules of Professional Responsibility provide that
"[i]n representing an organization, a member [of the State Bar] shall conform his or her
representation to the concept that the client is the organization itself, acting through its
highest authorized officer, employee, body, or constituent overseeing the particular
engagement." (Rules Prof. Conduct, rule 3-600(A).) "In dealing with an organization's
directors, officers, employees, members, shareholders, or other constituents, a member
shall explain the identity of the client for whom the member acts, whenever it is or
becomes apparent that the organization's interests are or may become adverse to those of
the constituent(s) with whom the member is dealing." (Rules Prof. Conduct, rule 3-
600(D).) An attorney representing an organization may additionally "represent any of its
directors, officers, employees, members, shareholders, or other constituents, subject to
the provisions of rule 3-310." (Rules Prof. Conduct, rule 3-600(E); cf. ABA Model Rules
Prof. Conduct, rule 1.13(g).)
       The fourth cause of action seeks to "compel the San Benito County Board of
Supervisors, doing business as the San Benito County Financing Corp., to conduct an
audit and stop waste of the public fisc . . . ." It appears that the Board is being sued in its
capacity as the SBCFC's Board of Directors. We see no cause of action against the Board
acting as the governing body of the County as a whole. Attorney Serverian appears to be
representing the SBCFC, acting through its governing body. As indicated, Pekin has
disclaimed any conflict of interest between SBCFC and Scagliotti. In addition, the
superior court indicated that the parties had agreed that the fourth cause of action, the

                                              23
only cause of action against the Board, was not at issue during the current phase of the
proceedings.
       Plaintiff Pekin failed to demonstrate below that there was any actual conflict of
interest related to or arising from Serverian's alleged noncompliance with Code of Civil
Procedure section 284.
4. Alleged Conflict with the Public Interest
       In the court below, plaintiff Pekin argued in his moving papers that "[t]he specific
conflict of interest of joint [County]/Scagliotti defense is that between Mr. Serverian's
efforts to avoid Defendant Scagliotti's liability for [section] 1090 and PRA violations and
the mandated interest of the public entity to protect the public trust . . . ." He now
contends that he established that attorney Serverian's representation of his clients
involved an "actual conflict of interest . . . in the vigorous enforcement of [section] 1090
and the PRA . . . ." Pekin now acknowledges that attorney Serverian's interpretation of
section 995.2 as permissive is "literally correct" but he nevertheless insists that "Mr.
Serverian must be removed for actual conflict of interest with the public interest in the
vigorous enforcement of [section] 1090 and the PRA, notwithstanding the wording of
[section] 995.2."
       The term "conflict of interest" has a particular meaning under the Rules of
Professional Conduct. "[A] conflict of interest exists if there is a significant risk that a
lawyer's ability to consider, recommend or carry out an appropriate course of action for
the client will be materially limited as a result of the lawyer's other responsibilities or
interests." (ABA Model Rules Prof. Conduct, Com. on Rule 1.7, para. [8].) A critical
question is whether clients' differing interests "will materially interfere with the lawyer's
independent professional judgment in considering alternatives or foreclose courses of
action that reasonably should be pursued on behalf of the client" (ibid.) or render the
lawyer's representation less effective (Spindle v. Chubb/Pacific Indemnity Group, supra,

                                               24
89 Cal.App.3d at p. 713). The public at large or the "public interest" is not attorney
Serverian's client for purposes of analyzing whether he should be disqualified based upon
an actual conflict of interest between his clients.
       Even if the County has a broad interest in protecting the public and enforcing the
PRA in the abstract, its concrete interests in this particular litigation are more limited.
The Eighth Amended Complaint indicates that the County's civil prosecutor declined to
commence an action under the PRA against Scagliotti. The County's main interest in this
litigation appears to be avoiding a judgment against Scagliotti for which it would become
indirectly liable under section 825 and for which it could not be indemnified (see
§§ 825.4, 825.6).
       "The civil prosecutor is primarily responsible for enforcement of the civil penalties
and remedies" of the PRA. (§ 91001, subd. (b); see §§ 91004, 91005.) "Any person,
before filing a civil action pursuant to Sections 91004 and 91005, must first file with the
civil prosecutor a written request for the civil prosecutor to commence the action. The
request shall include a statement of the grounds for believing a cause of action exists.
The civil prosecutor shall respond to the person in writing, indicating whether he or she
intends to file a civil action." (§ 91007, subd. (a).) The person may not proceed with a
civil action pursuant to those sections if the civil prosecutor timely decides to bring an
action. (See § 91007, subd. (a); see also Gananian v. Wagstaffe (2011) 199 Cal.App.4th
1532, 1537, fn. 6 ["Upon the party's request, the prosecutor's office can either file suit or
decline to file suit but it cannot prevent the party from commencing suit if it decides not
to proceed"].) A civil prosecutor has no mandatory duty, however, to bring an
enforcement action pursuant to section 91004 or 91005 and a civil prosecutor's decision
whether to bring such an action cannot be challenged. (See Dunn v. Long Beach Land &
Water Co. (1896) 114 Cal. 605, 609.)



                                              25
       Plaintiff Pekin has not demonstrated that he is directly enforcing or representing
the County's rights under the PRA. If Pekin prevails on his claims against Scagliotti
brought pursuant to section 91004 or 91005, he will obtain a financial benefit for himself
but not for the County. (See § 91009; see also ante, fn. 3.)
       Insofar as Pekin's first cause of action of his eighth amended complaint alleged
that a three year vehicle maintenance contract between the County and San Benito Tire
violated section 1090 and sought to recover from Scagliotti the money paid by the
County to San Benito Tire under the allegedly void contract, we assume that Pekin is
seeking recovery on behalf of the County since the prayer for relief characterizes the
recovery as "restitution." (See generally Thomson v. Call (1985) 38 Cal.3d 633, 646-652
[taxpayers' suit challenging validity of city council member's sale of property to city
through corporate conduit].) But in this cause of action, as with all other causes of action
against Scagliotti, neither the County nor any constituent part is a defendant. Pekin failed
to demonstrate that Serverian's role as legal advocate for defendant Pekin actually
conflicted with any legal or ethical responsibility that Serverian owed to the County by
virtue of its provision for Scagliotti's defense.
       We reject Pekin's argument that attorney Serverian must be disqualified from
representing defendant Scagliotti based on "an actual conflict of interest with the public
interest in the vigorous enforcement of [section] 1090 and the PRA."
5. Delay in Bringing Motion
       On appeal, Pekin "concedes that Mr. Serverian substituted into the case in early
May, 2006 . . . ." He asserts that the approximate four year delay in bringing the
disqualification motion was excusable because the delay was "caused by Defendants'
connivance with duress." He argues that the factual proof of that connivance was
presented in his disqualification motion by incorporating another motion, which was
entitled "Defendants' connivance with duress upon Plaintiff, Plaintiff's Spouse and

                                              26
Counsel bars Defendants from taking advantage of any affirmative defense in this case"
and was filed on the same day as his disqualification motion. In the court below, Pekin
acknowledged in his reply to opposition to his disqualification motion that attorney
Serverian had disclosed in a letter, dated October 6, 2006, that the County was providing
both defense and indemnification to Scagliotti.17
       The trial court stated that Pekin "should have made this challenge years ago." Its
comments imply that it found that Pekin brought the motion for delay purposes and the
alleged misconduct of defendants did not excuse Pekin from bringing such motion at an
earlier time. It is not our role to reweigh the evidence. (See Estate of Teel (1945) 25
Cal.2d 520, 527.) Pekin has failed to demonstrate that the trial court acted outside the
bounds of reason in denying the motion in part because it concluded the motion was a
delay tactic.
       A party's tactical abuse of a disqualification motion is a valid consideration in
ruling on such a motion. (See People ex rel. Dept. of Corporations v. SpeeDee Oil
Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145; Gregori v. Bank of America (1989)
207 Cal.App.3d 291, 300-301) " '[A]s courts are increasingly aware, motions to
disqualify counsel often pose the very threat to the integrity of the judicial process that
they purport to prevent. [Citation.] Such motions can be misused to harass opposing
counsel [citation], to delay the litigation [citation], or to intimidate an adversary into
accepting settlement on terms that would not otherwise be acceptable. [Citations.] In
short, it is widely understood by judges that 'attorneys now commonly use


17
       This letter was an exhibit to Pekin's "connivance with duress" motion. The letter,
which is from attorney Serverian to plaintiff Pekin's counsel (Michael Pekin), states that
the County is providing a defense and indemnification to Scagliotti in this case and
indicates that the County issued a reservation of rights letter that requires Scagliotti to
reasonably cooperate in his defense and the County will be required to pay any non-
punitive damages award if Scagliotti cooperates in his defense.
                                              27
disqualification motions for purely strategic purposes . . . .' [Citations.]" (Gregori v.
Bank of America, supra, 207 Cal.App.3d at pp. 300-301, fns. omitted.)
       The trial court also queried whether the delay constituted laches. "The defense of
laches requires unreasonable delay plus either acquiescence in the act about which
plaintiff complains or prejudice to the defendant resulting from the delay." (Conti v.
Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359, fns. omitted.)
"Prejudice is never presumed; rather it must be affirmatively demonstrated by the
defendant in order to sustain his burdens of proof and the production of evidence on the
issue. ([Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351,] 361 . . . .)"
(Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.) "Generally speaking,
the existence of laches is a question of fact to be determined by the trial court in light of
all of the applicable circumstances, and in the absence of manifest injustice or a lack of
substantial support in the evidence its determination will be sustained. [Citations.]"
(Ibid.) A court may decline to apply an equitable defense of laches if its application
would nullify an important policy adopted for the benefit of the public. (See County of
Los Angeles v. Berk (1980) 26 Cal.3d 201, 222.)
       We find it unnecessary to decide whether the trial court could properly apply the
doctrine of laches since it made no definitive ruling. It is evident that the court's ruling
was correct on other dispositive grounds and should be upheld. (See D'Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1, 19; see also Maruman Integrated Circuits, Inc. v.
Consortium Co. (1985) 166 Cal.App.3d 443, 450-451 [upholding denial of motion to
disqualify opposing counsel].)




                                              28
                                              III
                                       Attorney's Fees
       Pekin asks this court to determine that his counsel is entitled to attorney's fees and
costs pursuant to section 91012 and to then remand the matter to the trial court with
instructions to determine the amount of the award.
       Section 91012 is an exception to the general rule that a litigant is not entitled to
recover attorney's fees from an opposing party. (See Code Civ. Proc., § 1021.) It
provides: "The court may award to a plaintiff or defendant other than an agency, who
prevails in any action authorized by [the PRA] his costs of litigation, including
reasonable attorney's fees. On motion of any party, a court shall require a private
plaintiff to post a bond in a reasonable amount at any stage of the litigation to guarantee
payment of costs." (§ 91012.) "[T]he primary purpose of the prevailing party attorneys'
fee provisions of the Political Reform Act is to encourage private litigation enforcing the
Act." (People v. Roger Hedgecock for Mayor Com. (1986) 183 Cal.App.3d 810, 816.)
       The ruling on a motion to disqualify counsel was not a final determination of the
merits of this litigation. At this point in the proceedings, Pekin has not established that he
is the prevailing party for purposes of section 91012.18 He is not the prevailing party in
this appeal.
                                       DISPOSITION
       The trial court's order denying Pekin's motion to disqualify attorney Serverian is
affirmed. Appellant Pekin shall bear the costs of appeal.




18
       We find it unnecessary to reach respondents' assertion that attorney Michael Pekin,
Pekin's counsel, waived any right to attorney's fees while being deposed.
                                              29
                                _____________________________
                                ELIA, J.


WE CONCUR:




__________________________________
RUSHING, P .J.




__________________________________
GROVER, J.




                                     30
