NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.

Defendant Takashi Yamada appeals an order denying his motion to disqualify counsel for plaintiff Aion International, Inc. (Aion). We affirm. There is substantial evidence supporting the court's finding that the law firm of Callahan & Blaine never formed an attorney-client relationship with, or received confidential information from, Yamada or the other defendants in the action. Based on these findings, the court acted within its discretion when it denied Yamada's motion.

FACTS

On February 27, 2008, Aion filed a complaint against Yamada, Presto International, Inc. (Presto), Sun Systems, Inc. (Sun), and several other defendants. Yamada was alleged to be a principal of Presto. The complaint asserted causes of action for breach of fiduciary duty, conversion, fraudulent concealment, fraud, and breach of contract. At the time of the filing of the complaint, Aion was represented by Barry, Gardner & Kincannon, a Newport Beach, California law firm.

On March 10, 2008, Callahan & Blaine, a Santa Ana, California, law firm, mailed separate, nearly identical letters to Presto and Sun. These letters referenced the action filed by Aion, described Callahan & Blaine's credentials and accomplishments, and invited a response to discuss issues of representation in the Aion matter. There is no language identifying the letters as advertising material. Callahan & Blaine never appeared in the action on behalf of Presto, Sun, Yamada, or any of the other defendants.

Callahan & Blaine became attorneys of record for Aion on November 17, 2008. Yamada filed his answer to the complaint on or about January 21, 2009. Following Yamada's first appearance, Aion served Yamada with at least 12 separate documents listing Callahan & Blaine as Aion's attorneys. Trial was set for March 29, 2010.

Motion to Disqualify

On February 10, 2010, Yamada and several other defendants moved to disqualify Callahan & Blaine from representing Aion. The motion was based in large part on a declaration signed by Yamada. Yamada declared: (1) he is a native Japanese speaker who can "speak some English and . . . read and write English much better than [he] can speak it"; (2) although he was living in Japan at the time, he received the Callahan & Blaine letter addressed to Presto in March 2008; (3) he called Callahan & Blaine and spoke with an individual who identified himself as Stephen E. Blaine for more than one hour; (4) Yamada and Blaine spoke about the logistics of the lawsuit, costs to defend the case, the time it would take to litigate the case, and various factual allegations in the case; (5) Yamada "talked to Mr. Blaine about the facts of these matters from [his] point of view and why I thought [Aion's] accusations were not accurate"; (6) Blaine identified the strengths and weaknesses of the case, discussed possible strategies and the need to hire experts, and told Yamada everything discussed would be confidential; (7) Yamada never talked to Blaine again after the phone conversation; (8) along with other documents, Yamada handed his attorney a copy of the March 2008 letter to Presto at a February 4, 2010 strategy session; and (9) previous to the February 2010 meeting, Yamada had not realized the firm representing Aion was the same one he had talked to in early 2008.

Aion opposed defendants' motion, contending Yamada submitted a false declaration because the alleged phone call between Yamada and Blaine never occurred. In his declaration, Blaine claimed he "never had a telephone conversation with Defendant Yamada. I know this to be true from my own memory." "In addition to my own memory, my billing and marketing records also confirm that I have never had a telephone conversation with Defendant Yamada." Blaine professed to follow a specific recordkeeping procedure whenever he spoke with a potential new client based on a response to a "marketing letter." His records from the relevant time period disclosed no indication any conversation with Yamada occurred. Blaine also claimed several of Yamada's contentions were inconceivable because: (1) he never spent close to an hour talking to a potential new client on an initial consultation; (2) most such calls last less than 15 minutes and consist largely of setting up an "in-person interview"; and (3) he has never offered opinions on the costs of defense, the time needed to litigate, or the need for experts in an initial telephone call from a new client.

Aion also pointed to Yamada's alleged lack of fluency with the English language as a reason to doubt the truth of his assertions. Yamada utilized an English translator in the conduct of Presto's business. Yamada testified at the hearing on the motion to disqualify in a manner largely consistent with the facts stated in his declaration. But it is clear from the transcript that Yamada had difficulty understanding several of the questions asked of him and responding in a coherent fashion.

Blaine also testified at the hearing in a manner consistent with the facts stated in his declaration. He admitted the standard client intake procedure at Callahan & Blaine did not necessarily include checking whether a marketing letter was previously sent to a party involved in the matter.

Ruling

The court denied Yamada's disqualification motion. The court found fault with Callahan & Blaine's marketing policies. But the court ultimately denied the motion because it found Callahan & Blaine did not enter an attorney-client relationship with Yamada or otherwise obtain confidential information from Yamada.

The court explained its ruling in detail at the hearing: "Let me begin by saying that I don't think that the Callahan & Blaine letter of March 10, 2008, complies with the standards enunciated for Rule 1-400 [of the Rules of Professional Conduct]. . . ." "[T]he substance of the letter isn't all that bad. It's just the lack of some boldfaced type saying this is an advertisement. What bothers me here, what concerns me here, is that Callahan & Blaine sent out these two letters, Exhibit[s] 4 and 5, to Presto, and to Sun, saying the same thing. They're identical letters offering themselves up to represent them. [¶] What is Callahan & Blaine to do if both of them call and relay information, and there's a conflict between the defendants? Callahan & Blaine by definition put themselves in a conflict position before they even get out [of] the gate . . . ."

"[A]fter this March 10 solicitation was sent out to these two defendants, Callahan & Blaine finds themselves agreeing to represent plaintiff in the same lawsuit." "And I took as very disturbing Mr. Blaine's discussion about the fact that there apparently was no internal audit to determine if the firm had actually engaged in any rounds of discussion with these defendants before undertaking the representation of the plaintiff. [¶] It's a little too slippery. It's a little too unusual in terms of, hey, we'll represent anybody, no matter who we talked to at any time. I hope that this is not the standard practice for Callahan & Blaine because I think it does not speak well of the law firm." "[T]his ought not to be a happy day or a proud day for Callahan & Blaine. . . . So there's issue number 1."

As to "Issue number 2," the court stated: "I, quite frankly, take as true, Mr. Blaine's discussion about the practices and procedures that he engages in in his office." "A, in this particular case, I don't doubt that [Blaine] has no recollection of any conversation with Mr. Yamada. B, that if there was any communication with Mr. Yamada, I suspect that there was a phone call Mr. Yamada relates, but I don't think it was any hour. And I don't think based upon Mr. Yamada's responses, that while he's a very fine fellow, I don't think his English skills are as good as he'd like them to be. I think he recognizes that."

"I don't see based upon the responses to the questions . . . asked of Mr. Yamada that Mr. Blaine could possibly have had a cogent conversation with Mr. Yamada over any period of time in which sufficient information would have been communicated so as to put Callahan & Blaine into the disqualification bracket . . . ." "And so with respect to this motion today, I am denying it. And I do so with a certain level of trepidation, all things considered here with respect to how the whole thing arises, but, nevertheless, I am denying it . . . ."

Yamada immediately filed a notice of appeal of the order denying his motion to disqualify Aion's counsel.1 The court then granted Yamada's ex parte motion to stay the action pending appeal.

DISCUSSION

We are presented with the discrete issue of whether Aion's counsel, Callahan & Blaine, must be disqualified from representing Aion in this case. There is no reason to discuss or opine upon the merits of the dispute between Aion and the defendants.

"Generally, a trial court's decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial court's express or implied findings supported by substantial evidence. [Citations.] When substantial evidence supports the trial court's factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. [Citation.] However, the trial court's discretion is limited by the applicable legal principles." (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143-1144 (SpeeDee Oil).)

The foremost legal principle applicable to this case is the following: "For attorneys in the same firm to represent adverse parties in the same litigation is so patently improper that the rule of disqualification is a per se or `automatic' one." (SpeeDee Oil, supra, 20 Cal.4th at p. 1139.) "An attorney represents a client — for purposes of a conflict of interest analysis — when the attorney knowingly obtains material confidential information from the client and renders legal advice or services as a result." (Id. at pp. 1148-1149, 1152 [disqualification required because attorney received "substantial amounts of material confidential information" during initial discussions with client's representatives]; see also Med-Trans Corp., Inc. v. City of California City (2007) 156 Cal.App.4th 655, 668-669 (Med-Trans) [reversing disqualification order because moving party failed to establish confidential information was imparted during consultation]; In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 564-565 [trial court did not abuse discretion by denying disqualification motion because there is substantial evidence confidential information was not transmitted during initial consultation].)

"[W]here the former contact with the attorney was a preliminary conversation that did not result in professional employment or services, the party seeking disqualification must show, directly or by reasonable inference, that the attorney acquired confidential information in the conversation. [Citation.] In other words, in such cases the presumption that confidential information passed will not apply." (Med-Trans, supra, 156 Cal.App.4th at p. 668.)2

If it were certain a telephone conference between Yamada and Blaine occurred as described by Yamada in his declaration and oral testimony, the court would have abused its discretion by denying the motion for disqualification. But this is not a case in which the evidence is undisputed. Blaine denies the telephone conversation ever occurred, and further denies he would ever discuss confidential information during an initial client intake phone conversation prompted by his firm's marketing letters. The outcome of this case rests upon a credibility determination, not a point of law. Our review of the record indicates there is substantial evidence supporting the court's findings that the telephone conversation may not have occurred at all and, if it did occur, such conversation did not involve confidential communications sufficient to create an attorney-client relationship.

In the alternative, Yamada cursorily contends (without authority) that Callahan & Blaine violated rule 3-310(B) of the Rules of Professional Conduct, and that such violation requires the disqualification of Callahan & Blaine. Rule 3-310(B) of the Rules of Professional Conduct requires, in relevant part, attorneys to provide "written disclosure to the client" of any past or present "legal, business, financial, professional, or personal relationship with a party or witness in the same matter." Even if, as Yamada contends, Callahan & Blaine owed a duty to disclose to Aion the existence of the marketing letters sent to Presto and Sun, we fail to comprehend how the trial court could have abused its discretion by not disqualifying Callahan & Blaine at the request of Yamada on this ground. After all, the duty created by the rule is a duty owed to Aion, not Yamada. We reject Yamada's alternative argument.

Yamada does not contend or provide any authority for the proposition that Callahan & Blaine should be disqualified based solely on their ethically controversial practices of (1) mailing uninvited marketing letters; (2) unmarked as advertising; (3) to multiple parties involved in civil cases. We need not explore the propriety of such practices in this opinion.

DISPOSITION

The order denying disqualification of Callahan & Blaine is affirmed. Aion shall recover costs incurred on appeal.

WE CONCUR:

O'LEARY, ACTING P. J.

FYBEL, J.