NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

MOORE, J.

Plaintiffs David W. Wilson and DWWRBB, Inc. (DWW) brought a motion to disqualify the attorney representing defendants Ryan B. Busnardo and Scott Demmer in an action between the parties. The superior court found an attorney-client relationship existed between defendants' attorney Michael Vivoli and plaintiffs in 2007, and that that representation substantially relates to the subject matter of the present lawsuit. As a result, the superior court granted the motion to disqualify Vivoli. We affirm.

I

FACTS

The record does not contain plaintiffs' complaint against defendants. Busnardo filed a cross-complaint against plaintiffs for breach of a fiduciary duty, fraud, wrongful termination, breach of the implied covenant of good faith, and unpaid wages, along with other actions arising out of their business relationship pertaining to the Honda Santa Ana car dealership. The cross-complaint alleges Honda Santa Ana was owned by Vinci Investment Company (VI), a corporation wholly owned by Ronald Vinci. Vinci gave Busnardo, the general manager of the Honda Santa Ana, an option to purchase the dealership. In 2006, Busnardo was introduced to Wilson, who Busnardo knew to be the owner of more than 10 car dealerships, including Toyota of Orange and Newport Lexus. An agreement was reached whereby DWW would purchase Honda Santa Ana and Busnardo would receive 25 percent ownership of DWW, with Wilson owning the remaining 75 percent of the company. In May of that year, Vinci sold the dealership to DWW. Busnardo remained the general manager of Honda Santa Ana after the sale. In 2009, Wilson fired Busnardo pursuant to a provision in their shareholder agreement and terminated Busnardo's stock in DWW.

According to Wilson's declaration in support of the motion to disqualify Attorney Vivoli, he sought to purchase Honda Santa Ana from VI in 2006. Busnardo, the general manager of the dealership, had no ownership interest in VI, which was owned by Vinci. Busnardo handled the negotiations on Vinci's behalf and Vivoli represented VI, Vinci, and Busnardo during the negotiations.

VI did not own all the real property on which Honda Santa Ana operated. A portion of the land was owned by Erickson Properties Corporation (Erickson) and was subject to a long-term land lease. VI had obtained a leasehold interest in the Erickson property through the City of Santa Ana Redevelopment Agency (Redevelopment Agency). As part of the purchase of Honda Santa Ana, plaintiffs agreed to pay VI for its rights to the Erickson property and to complete improvements VI had committed to perform on that property. Plaintiffs also agreed to reimburse the Redevelopment Agency for funds owed by VI under its agreement with the Redevelopment Agency.

Casey Griffin was the real estate manager for Wilson's automobile dealerships, including Honda Santa Ana. Norris J. Bishton, Jr., plaintiffs' attorney, was Wilson's general counsel for all his dealerships and Jeff Oderman was an attorney Wilson retained to assist Wilson in real estate matters.

In 2007, "issues arose regarding the Erickson [p]roperty that resulted in numerous meetings and negotiations between DWW[] and the [Redevelopment] Agency.1 Attached to Wilson's declaration in support of the motion to disqualify Vivoli was a copy of a letter dated March 13, 2008, from Vivoli to Busnardo. The letter, on Vivoli's letterhead and addressed to Busnardo at the Honda Santa Ana address, bears the reference line "Legal Services Rendered" and contained an itemized listing of actions performed by Vivoli, the date the action was performed, and the charge for each. Immediately preceding the itemization was: "At your request, I went back and reviewed all of the bills generated by my firm and invoiced to Vinci Investment Co., Inc. for services rendered for the benefit of, or at the express request of [DWW]. All of these services relate to issues I have either been asked to address and/or meetings I have been asked to attend at the request of [DWW]. The billing entries that relate to these services include the following[.]" Included in the itemization were correspondence with Griffin, telephone conferences with Griffin, a meeting at Honda Santa Ana with Griffin, Oderman, and Busnardo, preparation of a "detailed history" of the property transaction with Erickson, research on issues involving "relocation benefits" and "`inducement' as grounds for municipality claiming entitlement to tax benefits," correspondence and a telephone conference with Bishton, and correspondence with Oderman. The bill for these services, which were rendered as far back as May 31, 2007, was $6,925. DWW paid the bill.

Wilson's declaration states that the June 4, 2007 entry for preparation of correspondence with Griffin was for a "Confidential Memorandum" to Griffin, bearing the heading "Attorney Work Product Privilege Communication." Vivoli's declaration in opposition to the disqualification motion states the memorandum was so labeled because it contained his mental thoughts and impressions regarding the obligations between Vinci and the Redevelopment Agency, and various agreements between Vinci and Erickson. It was not labeled as "Attorney-Client Privileged Communication" because Vivoli did not view it an attorney-client communication. He asserted that his client was Vinci, not DWW.

In response to defendants' opposition and Vivoli's declaration, plaintiffs' reply contained excerpts from the confidential memorandum Vivoli sent to Griffin. The court took the matter of disqualification under submission and later that day issued a minute order granting the motion, stating in pertinent part: "[Plaintiffs'] motion to disqualify attorney Vivoli and his law firm is granted. Plaintiffs have presented evidence demonstrating that an attorney-client relationship arose in 2007 between [DWW] and attorney Vivoli. Evidence has also been presented to show that the previous matter is substantially related to the present matter where attorney Vivoli represents defendant/cross-complainant Busnardo, which results in a conclusive presumption that attorney Vivoli possesses confidential information adverse to [DWW]."

II

DISCUSSION

"Courts have authority to order disqualification of counsel pursuant to Code of Civil Procedure section 128, subdivision (a)(5).2 [Citation.]" (Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1723 (Responsible Citizens).) "It is beyond dispute a court may disqualify an attorney from representing a client with interests adverse to those of a former client. . . . Where such a conflict exists, and the former client has not consented to the current representation, disqualification follows as a matter of course. The court does not engage in a `balancing of equities' between the former and current clients. The rights and interests of the former client will prevail. [Citation.]" (H. F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1451.)

An order disqualifying an attorney from representing a party is an appealable order (A.I. Credit Corp., Inc. v. Aguilar & Sebastinelli (2003) 113 Cal.App.4th 1072, 1077) and is reviewed for an abuse of discretion. (Federal Home Loan Mortgage Corp. v. La Conchita Ranch Co. (1998) 68 Cal.App.4th 856, 860.) The trial court's ruling is presumed correct (H. F. Ahmanson & Co. v. Salomon Brothers, Inc, supra, 229 Cal.App.3d at p.1451) and reversal is permissible "only when there is no reasonable basis for the trial court's decision. [Citation.]" (Federal Home Loan Mortgage Corp. v. La Conchita Ranch Co., supra, 68 Cal.App.4th at p. 860.) "In any event, a disqualification motion involves concerns that justify careful review of the trial court's exercise of discretion. [Citation.]" (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144 (SpeeDee Oil).)

"The question of whether an attorney-client relationship exists is one of law. [Citations.] However, when the evidence is conflicting, the factual basis for the determination must be determined before the legal question is addressed. [Citation.]" (Responsible Citizens, supra, 16 Cal.App.4th at p. 1733.) When the evidence is in dispute, appellate courts only look at the evidence favoring the prevailing party (City National Bank v. Adams (2002) 96 Cal.App.4th 315, 322) and must draw all reasonable inferences in favor of the disqualification order. (Id. at pp. 322-323.)

To determine whether an attorney-client relationship existed between DWW and Vivoli, we look to the "totality of the circumstances" to discover whether the parties' conduct implies an agreement that Vivoli would not undertake representation adverse to DWW's on the issue of its rights in connection with the Erickson lease. (Responsible Citizens, supra, 16 Cal.App.4th at p. 1733.) After its purchase of Honda Santa Ana, DWW sought information from Vivoli regarding its rights and obligations in connection with the Erickson property and the Redevelopment Agency. To that end, Vivoli's bill "for services rendered for the benefit of, or at the express request of, [DWW]" (italics added), was paid by DWW. Vivoli billed for more than 20 conversations or meetings he had with Busnardo in connection with the lease issues. Vivoli also prepared a memorandum for plaintiff's property manager, Griffin, advising Griffin that "even if [DWW] does not acquire fee title to the Erickson Property, it has the right to construct improvements (including an expanded showroom, etc.) on the property, but not repair facilities or other uses which may expose the Premises to any threat of contamination by hazardous substance." He told Griffin "the Agreement does make clear that [VI] (and [DWW]) by virtue of the assignment of the Agreement from [VI] to [DWW], is to enjoy the difference between the actual rent called for in the Erickson lease and the sum of $12,000 plus the CPI increases described in the Agreement."

Additionally, Vivoli counseled Griffin that "the unresolved lease subsidy needs to be pursued in order for the City to honor its previous commitment to condemn the Erickson property." In connection with this last advisement, Vivoli offered that he had ideas he would like to discuss with Griffin. Moreover, Vivoli sent an e-mail to then Santa Ana City Attorney Joseph Fletcher asking what the city "need[ed] from Vinci and/or [DWW] to formally extend the License." Lastly, Griffin sent Vivoli the following email seeking Vivoli's advice: "Where do we sit with Erickson and him wanting to terminate our lease? I just received our proposal for the improvements and it totals $2 mil[lion]. I don't want to spend that kind of money if he's going to terminate us. Could he just be waiting for us to spend the money and then take us to court? Please let me know your thoughts." This evidence supports the trial court's determination that an attorney-client relationship existed between DWW and Vivoli.

The fact that DWW eventually retained Attorney Oderman to represent its interests in connection with the Erickson property does not preclude a finding of an attorney-client relationship between DWW and Vivoli. "`"The fiduciary relationship existing between a lawyer and client extends to preliminary consultations . . . with a view to retention of the lawyer, although actual employment does not result." [Citation.] "When a party seeking legal advice consults an attorney at law and secures that advice, the relation of attorney and client is established prima facie." [Citation.]'" (Speedee Oil Change Systems, supra, 20 Cal.4th at pp. 1147-1148, first italics added.)

"When the current representation is adverse to the interests of a former client, . . . disqualification may be necessary only if the attorney, by reason of the former representation, obtained confidential information material to the current representation. If there is a `substantial relationship' between the two representations, courts presume that confidences which may have value in the current representation were disclosed in the first representation. [Citations.]" (Responsible Citizens, supra, 16 Cal.App.4th at p. 1724.) The presumption is conclusive and is justified as a rule of necessity. (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 706.)

The substantial relationship test is met if the former client establishes "`no more than the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client.'" (Jessen v. Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at p. 707, quoting River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1302.) "[A] `substantial relationship' exists whenever the `subjects' of the prior and current representations are linked in some rational manner. [Citation.]" (Jessen v. Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at p. 711.) Because "limiting the comparison of the two representations to their precise legal and factual issues might operate unrealistically to the detriment of the first client," the courts broadly define "subjects" in this setting. (Id. at p. 712.) For purposes of determining whether the subjects are linked together, the subject of a representation includes "information material to the evaluation, prosecution, settlement or accomplishment of the litigation or transaction given its specific legal and factual issues. Thus, successive representations will be `substantially related' when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues. [Citations.]" (Id. at p. 713, fn. omitted.)

The prior representation involved DWW's interests in the Erickson property obtained by DWW when it bought the dealership. The present dispute — at least insofar as the cross-complaint is concerned — involves the purchase of the dealership, the connection of the Erickson property to the dealership, the value of the Erickson property, Busnardo's interest in the Erickson property, Wilson's actions as the controlling interest in DWW, and Wilson's deliberate concealment of facts from Busnardo. In addition to damages, Busnardo's cross-complaint seeks rescission of the "transaction pursuant to which DWW acquired ownership of Honda Santa Ana and the real property upon which it is located."

The purchase of Honda Santa Ana, the property upon which it stands (including the Erickson property), and the parties' conduct after the purchase are at the heart of the present lawsuit. Vivoli's representation of DWW in connection with the Erickson property and its interest in the property, which included advising Griffin of available options open to DWW and making contact with the City of Santa Ana on DWW's behalf, was such that "confidential information pertinent to the case ordinarily would have been imparted." (Dill v. Superior Court (1984) 158 Cal.App.3d 301, 305.) It is likely that in Vivoli's direct representation of DWW he was exposed to the value that DWW placed on the Erickson property and other information "material to the evaluation, prosecution, and settlement or accomplishment of the current representation, given its factual and legal issues." (Jessen v. Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at p. 713.)

Finally, to the extent we are unable to compare the similarities between Vivoli's former representation and plaintiffs' complaint against defendants, that failing must be placed at defendants' feet, given the fact the complaint was not made part of the record on appeal. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534 [appellant has burden of furnishing record sufficient to consider issues on appeal].)

III

DISPOSITION

The order disqualifying defendants' attorney is affirmed.

WE CONCUR:

O'LEARY, ACTING P. J.

IKOLA, J.