Sentance v. Brown CA2/2

Filed 2/1/24 Sentance v. Brown CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

RENEE SENTANCE, B324321, consolidated with

B325614

Plaintiff and Respondent,

(Los Angeles County

v. Super. Ct. No.

22PSRO01491)

ROBIN BROWN,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles

County, Geanene M. Yriarte, Judge. Affirmed.

Action Legal Team and Michael N. Sofris for Defendant

and Appellant.

No appearance for Plaintiff and Respondent.

******

In the litigation of a domestic violence restraining order, a

trial court entered a provisional restraining order and

disqualified the restrained person’s attorney at the hearing on

whether to extend the provisional order. The restrained person

(through her disqualified counsel) challenges the disqualification

order as well as two aspects of the provisional restraining order.

These challenges are largely based on facts and law not brought

to the trial court’s attention, and they otherwise lack merit.

Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts1

A. The family

Robin Brown (Brown) and Renee Sentance (sister) are

adult sisters. Their parents are Robert Brown (father) and Grace

Brown (mother). Brown has a teenage daughter.

B. The family’s properties and Brown’s living

arrangements

Through the 2014 Brown Family Trust (the 2014 Trust),

father and mother own two residential properties in La Verne,

California. One is located on Bonita Avenue (the Bonita

property); the other, on Winterhaven Drive (the Winterhaven

property). Father was the trustee of the 2014 Trust.2

1 Consistent with substantial evidence review, we set forth

the facts in the light most favorable to the trial court’s ruling.

2 Although the parties did not introduce documentation

corroborating that the Bonita property was held by the 2014

Trust, that finding may be reasonably inferred by the parties’

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For many years, Brown and her daughter lived in the

Bonita property.

C. The role of attorney Michael Sofris (Sofris) as

trustee for a different family trust

Sofris is an attorney licensed in California. He is the

trustee of the RJN Family Trust (RJN Trust), which is controlled

by “the [Brown] family.” During or before the summer of 2022,

“the family asked” Sofris to disburse money from the RJN Trust

to be used for the Bonita property.

D. Brown’s care of parents, recent thefts and

vandalism of the properties, and “violent” outbursts

In 2021 and 2022, Brown was expected to care for father

and mother, who lived in the Winterhaven property. Brown did a

poor job, as both parents were filthy and covered in feces; Brown

also used methamphetamine in the home. When sister learned of

this mistreatment, she moved father and mother into a “24/7”

assisted care facility.

During this time period, Brown stole guns, cash, and

jewelry from the Bonita and Winterhaven properties. On one

occasion, Brown turned on the gas line in the kitchen of the

Winterhaven home so it flooded with natural gas, and then left

the home.

When sister confronted Brown about these incidents,

Brown got “violent” and started “screaming at [sister] and

pushing [her].” Brown also caused a scene at the assisted living

facility while visiting mother and father.

reference to both properties being held by the parents and having

the same status.

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E. Powers of attorney

In April 2022, father executed a durable power of attorney

granting sister the authority to “manage[] or maintain[] any real

property” in which he had an interest. He also resigned as

trustee of the 2014 Trust, and named sister as the trustee.

F. Earlier petitions

In July and August 2022, sister filed two petitions for

restraining orders to protect father, sister, and sister’s family.

Both were filed in San Bernardino County Superior Court, and

both were denied on the ground that they were filed in the wrong

venue.

II. Procedural Background

A. Petition

On August 9, 2022, sister filed a petition for a restraining

order in Los Angeles County Superior Court that would require

Brown (1) to stay away from father, sister, and sister’s family; (2)

to vacate the Bonita property; and (3) to stay away from the

Bonita and Winterhaven properties. In support, sister submitted

a declaration detailing the elder abuse outlined above as well as

the theft and vandalism occurring at the properties.

B. Temporary restraining order (TRO)

On August 10, 2022, the trial court issued a TRO that

ordered Brown (1) to stay away from father, sister, and sister’s

family; (2) to vacate the Bonita property, although her daughter

could continue to live there with another adult; and (3) to stay

away from the Bonita and Winterhaven properties.

Brown moved out, and her daughter continued to live in the

Bonita property with another adult.

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C. Hearing on restraining order

After Brown—with Sofris as her attorney—filed an

opposition to sister’s petition as well as a petition seeking a new

TRO to dissolve the prior TRO, the trial court convened a hearing

on October 6, 2022 to consider the competing petitions (the

October 2022 hearing).

Sofris acted as Brown’s attorney at the hearing.

1. Sofris is disqualified as Brown’s counsel

During pre-hearing settlement talks, Sofris demanded

that—as part of settling the dispute—sister and father repay the

funds he, as trustee of the RJN trust, had disbursed to them from

the trust. Sister brought the issue to the trial court’s attention,

and noted that it appeared that Sofris had a conflict of interest.

The court agreed that “there is a conflict” and disqualified Sofris

from continuing to represent Brown.

The court granted Brown time to find new counsel, and

continued the hearing on the permanent restraining order to

November 1, 2022.

2. TRO is modified

Sister agreed that Brown could move back into the Bonita

property, but only if a third party could first conduct a walk-

through of the property to assess its then-current condition.

Sister also wanted to be able to check the Bonita property

periodically, to ensure that it was not being damaged. The court

issued an amended TRO with the same terms as the August 2022

TRO, except that this new TRO (1) did not require Brown to move

out of the Bonita property; (2) authorized either a third party or

Sofris, “as a friend of the court,” to video and document the

condition of the Bonita property before Brown could move back

in; and (3) authorized sister to have a “real estate representative”

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conduct weekly walk-throughs of the Bonita property with 24

hours’ advance notice and while Brown’s daughter was at school

(the amended TRO).

D. Post-ruling orders

After the October 2022 hearing, Sofris and Brown filed

declarations unattached to any request for relief that set out facts

not presented at the hearing.

At the continued hearing on November 1, 2022, the court

again continued the matter until January 11, 2023. The court

kept the amended TRO in force.

E. Appeals

On October 21, 2022, Brown filed a notice of appeal

challenging the trial court’s disqualification order.

On December 1, 2022, Brown filed a notice of appeal

challenging the amended TRO. The trial court took the January

2023 hearing on the permanent restraining order off calendar.

We consolidated the two appeals.

DISCUSSION

Brown challenges the trial court’s order disqualifying Sofris

as well as two provisions of the amended TRO. We review

disqualification orders and restraining orders solely for an abuse

of discretion. (City and County of San Francisco v. Cobra

Solutions, Inc. (2006) 38 Cal.4th 839, 848 (Cobra Solutions)

[disqualification order]; In re Marriage of D.S. & A.S. (2023) 87

Cal.App.5th 926, 933 [restraining order].) In so doing, we review

any subsidiary factual findings for substantial evidence (Cobra

Solutions, at p. 848) and independently review any subsidiary

legal questions (such as whether a party has standing to seek

disqualification of another party’s attorney) as well as the

application of law to undisputed facts (A.F. v. Jeffrey F. (2022) 79

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Cal.App.5th 737, 745 (A.F.) [standing is a legal question]; Great

Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347,

1357 (Great Lakes) [same]; Cobra Solutions, at p. 848 [application

of the law to undisputed facts]).

I. Order Disqualifying Sofris as Brown’s Attorney

A trial court has inherent as well as statutory power to

disqualify counsel as part of its authority to control court

proceedings. (Cobra Solutions, supra, 38 Cal.4th at p. 846; Code

Civ. Proc., § 128, subd. (a)(5).) An attorney owes his client a duty

of loyalty. (People ex rel. Department of Corporations v. SpeeDee

Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146-1147

(SpeeDee Oil).) An attorney who “[j]oint[ly] represent[s] . . .

parties with conflicting interests impairs each client’s legitimate

expectation of loyalty,” and thereby breaches that duty. (Great

Lakes, supra, 186 Cal.App.4th at p. 1355.) This is why our

Supreme Court has held that a “more stringent per se rule of

disqualification applies” “if an attorney . . . simultaneously

represents clients who have conflicting interests.” (SpeeDee Oil,

at p. 1147; Cobra Solutions, at p. 846.)

Although a trial court may disqualify counsel on its own

initiative (Asbestos Claims Facility v. Berry & Berry (1990) 219

Cal.App.3d 9, 27, fn. 6 (Berry) [“a trial court has the power to

disqualify an attorney on its own motion”]), a motion to disqualify

may only be brought by someone with “standing”—that is, by

someone with a “legally protected” or otherwise “sufficient”

interest that would be adversely affected if the attorney at issue

was not disqualified (Great Lakes, supra, 186 Cal.App.4th at p.

1356; Jarvis v. Jarvis (2019) 33 Cal.App.5th 113, 132). A movant

may establish standing by showing that she is (1) a current client

of the attorney (Great Lakes, at p. 1356); (2) a prior client of the

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attorney (ibid.); (3) a person with whom the attorney still owes a

duty of confidentiality (DCH Health Services Corp. v. Waite

(2002) 95 Cal.App.4th 829, 832 (DCH Health); Moreci v. Scaffold

Solutions, Inc. (2021) 70 Cal.App.5th 425, 432-433; Dino v. Pelayo

(2006) 145 Cal.App.4th 347, 353); or (4) a person with some other

“personal stake” in the attorney’s continued representation of his

client in the ongoing litigation (A.F., supra, 79 Cal.App.5th at p.

746 [father has a “personal stake” in his child’s best interests,

which conferred standing to move to disqualify attorney

representing child and other parent]; Jarvis, at pp. 131-133

[partner in partnership has a “stake” in whether attorney is too

conflicted to act on the partnership’s behalf]).

Although Brown did not raise the issue of standing before

the trial court, we conclude that sister—as a person acting on

father’s behalf—had standing to object to Sofris’s continued

representation of Brown in litigating the restraining order.

Sofris was representing Brown in the current proceedings. Sofris

was also the person who, as trustee of the RJN Trust, had

disbursed money from that trust based on orders from “the

family,” which meant Sofris owed father—as one of the settlors of

that trust—fiduciary duties. (Estate of Giraldin (2012) 55

Cal.4th 1058, 1062 [“[w]hen the trustee of a revocable trust is

someone other than the settlor, that trustee owes a fiduciary duty

to the settlor . . .”].) Father was the person who, due to his need

for 24/7 assisted care and the durable power of attorney, had

charged sister with seeking to have him named as a protected

person in this case. (Accord, Riehl v. Hauck (2014) 224

Cal.App.4th 695, 701 [parent may seek restraining order on

behalf of a child].) Father’s relationship with Sofris through the

RJN Trust meant that Sofris owes him a duty of confidentiality

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and also gives father a “personal stake” in not having Sofris

violate that duty. What is more, because Sofris as trustee

effectively represents the settlor vis-à-vis the trust, Sofris was

simultaneously representing both Brown and father in the same

proceeding where the latter was seeking a protective order

against the former. Such dual “representation of clients whose

interests are directly adverse in the same litigation” is, as our

Supreme Court has said, “[t]he most egregious conflict of

interest.” (SpeeDee Oil, supra, 20 Cal.4th at p. 1147.)

Brown resists this conclusion with a plethora of seemingly

self-proliferating arguments, which we have nevertheless

wrestled into six different buckets.

First, Brown argues that Sofris was not going to be a

witness and did not have a financial stake in the outcome of the

case. This argument partly contradicts Brown’s own declaration

before the trial court, in which she indicated that Sofris “may” be

a witness. Putting that aside, this argument is also beside the

point. What makes Sofris proverbially radioactive are his

simultaneous duties to two parties on opposite sides of the “v.” in

this case; whether or not there are additional grounds to

disqualify him is neither here nor there.

Second, Brown contends that there is no conflict. To begin,

Brown points out that she asserted in her post-order declaration

that Sofris disbursed the RJN Trust money at her behest, and

that she was the beneficiary of that trust. Thus, Brown

concludes, Sofris was not taking orders from father. But that

assertion contradicts what Sofris told the trial court at the

October 2022 hearing, where he said “the family asked” him to

disburse the funds. Sofris’s assertion also does not alter the

existence of the fiduciary duties Sofris owes father by virtue of

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their trustee-settlor relationship. Next, Brown argues that the

conflict is irrelevant because what mattered to this restraining

order case was who occupies the property at issue, not who owns

it. We reject this argument because the disqualifying interest

stems from simultaneous and contradictory duties, which exist

regardless of the nature of the dispute. Further, Brown posits

that the conflict is too speculative. Although “hypothetical” and

“speculative” conflicts will not justify disqualification (Great

Lakes, supra, 186 Cal.App.4th at p. 1358-1359; DCH Health,

supra, 95 Cal.App.4th at p. 833; In re Cody R. (2018) 30

Cal.App.5th 381, 390), the conflict here is neither hypothetical

nor speculative: Substantial evidence supports the explicit and

implicit findings by the trial court that Sofris was the trustee of

the RJN Trust, that he disbursed money on orders from “the

family,” that father was a settlor of the RJN Trust, that Sofris

owes father fiduciary duties, that father was—through sister—

suing Brown, and that Sofris was representing Brown in that

lawsuit.

Third, Brown contends that she was entitled to advance

notice and an evidentiary hearing on the issue of disqualification.

She is wrong. Sister raised the issue of disqualification

immediately after the possible conflict came to her attention,

which was during settlement talks immediately prior to the

October 2022 hearing. Brown did not complain of lack of notice

at that time. There was also no need for an evidentiary hearing,

as no facts were disputed during the hearing (although Brown

inserted additional, contradictory facts into the record after the

hearing). More to the point, Brown never asked to call any

witnesses or to introduce any documents; as a result, she has

forfeited her objection. (In re Marriage of Cohen (2023) 89

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Cal.App.5th 574, 582.) Because Brown had notice and an

opportunity to be heard, her due process rights were also not

violated.

Fourth, Brown argues that the evidentiary foundation for

the conflict was inadmissible because sister first learned of

Sofris’s role as trustee of the RJN Trust during settlement talks

protected by Evidence Code sections 1152 and 1154. To begin,

these sections do not create a privilege; instead, they create a bar

to admissibility, one that can be forfeited if there is no objection

(Evid. Code, § 353). There was no objection here. Moreover,

Sofris freely admitted the very same facts during the October

2022 hearing.

Fifth, Brown argues that she expressed—again, after the

October 2022 hearing—that she consented to any conflict. Where

there is a conflict due to simultaneous representation or duties

between opposing parties, however, a waiver is needed from both

parties. (Berry, supra, 219 Cal.App.3d at pp. 26-27 [so noting].)

Here, there is no waiver from father.

Sixth and finally, Brown urges that the trial court erred by

not considering the panoply of factors used to evaluate the

hardship that disqualification imposes on her—namely, (1) her

right to her counsel of choice, (2) Sofris’s interest in representing

his client, (3) the financial burden Brown faces in finding

replacement counsel, and (4) the possibility that sister and father

are disqualifying Sofris for tactical reasons. (SpeeDee Oil, supra,

20 Cal.4th at p. 1145 [enumerating these factors].) Brown

ignores that a court must balance these client-focused factors

against “the need to maintain ethical standards of professional

responsibility,” and further ignores that “preserv[ing] public trust

in the scrupulous administration of justice and the integrity of

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the bar” is “[t]he paramount concern.” (Ibid.; Cobra Solutions,

supra, 38 Cal.4th at p. 846.) In this case, allowing the same

lawyer who simultaneously owes duties to a person seeking a

restraining order and the person to be restrained rides roughshod

over the “duty to maintain undivided loyalty” and thereby

“undermin[es] public confidence in the legal profession and the

judicial process.” (SpeeDee Oil, at p. 1146.) Thus, the trial court

here did not abuse its discretion in concluding that the balance of

factors favored disqualification.3

II. Substantive Terms of the Amended TRO

Brown attacks two terms of the amended TRO—namely, (1)

the provision granting sister the right to conduct weekly

inspections of the Bonita property, and (2) the provision ordering

Brown to stay away from the Winterhaven property.

A. Right to inspect the Bonita property

The trial court did not abuse its discretion in granting

sister a right to inspect the Bonita property on a weekly basis

with 24 hours’ advance notice. Substantial evidence supports the

trial court’s implicit finding that the 2014 Trust owns the Bonita

property, that the trust grants the power to a trustee to maintain

the Bonita property, and that sister is now the trustee of the 2014

Trust. Thus, sister is effectively the landlord of the property.

The Civil Code grants landlords the power to enter premises

pursuant to a “court order” as long as they give reasonable,

3 Brown makes passing reference to the fact that father

passed away at some point after the October 2022 hearing.

Father’s subsequent death does not affect the propriety of the

trial court’s disqualification order at the time it was made. The

impact of his death, if any, on the disqualification analysis may

be raised—along with other evidence bearing on the issue—in

further proceedings, if any, before the trial court.

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advance notice. (Civ. Code, § 1954, subds. (a)(4), (b) & (d)(1).)

Here, the amended TRO is a court order and it also requires 24

hours’ advance notice.

Brown offers two arguments in response. First, she argues

that she has a competing power of attorney that gives her power

over the Bonita property through mother. But sister disputed the

existence of that grant of authority, and Brown was given the

chance to produce evidence of that authority but did not do so;

the trial court accordingly found that the authority did not exist

due to a lack of proof. That factual finding is supported by

substantial evidence. Second, Brown urges that allowing sister

to conduct inspections violates the Fourth Amendment as well as

her constitutional right to privacy. She is wrong. Where, as

here, inspections comply with the Civil Code, we decline to

overwrite the Code by constitutional fiat.

B. Stay away from Winterhaven property

The trial court also did not abuse its discretion in ordering

Brown to stay away from the Winterhaven property.

Brown does not argue that this order was inappropriate

based on the evidence before the trial court in October 2022.

Instead, she argues that it is no longer appropriate because,

subsequent to that hearing, she learned that sister had sold the

property to a third party in September 2022 and that third party

thereafter sold it to a fourth party. Although we took judicial

notice of all of these documents, we leave it to the parties to ask

the trial court to assess whether—in light of this change in

ownership—there is still a need for an order restraining Brown to

stay away from property in which, based on the evidence she

presents to this court for the first time, neither she nor her family

have any interest whatsoever.

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DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST

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