Hoss v. Hagen CA3

Filed 11/6/13 Hoss v. Hagen CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Lassen)
----

DANIEL J. HOSS, SR., et al., C071753

Plaintiffs, Cross-defendants and (Super. Ct. No. 51091)
Appellants,

v.

CARLIN R. HAGEN et al.,

Defendants, Cross-complainants and
Respondents.

This road easement dispute has been simmering for over 30 years. Former Lassen
County Superior Court Judge Joseph B. Harvey personally viewed the road in 1981 and
entered a judgment decreeing an easement in favor of a dominant parcel and against
servient parcels. The successors-in-interest have not lived harmoniously under that
decree, and this appeal will not resolve their differences, as it is an interlocutory appeal
from an order declining to disqualify an attorney and expert witnesses. As we shall

1
explain, the trial court applied the proper legal standards to this dispute and resolved
conflicts in the evidence against appellants. Finding no error, we shall affirm.
BACKGROUND
The Underlying Dispute
In 1966, George Nelson, Sr. and his wife deeded 10 acres of the Nelson Ranch to
his daughter, Mary Ann (mother of plaintiffs), including access via a then-extant road
through what are now four parcels, and deeded the rest of the ranch to his son, George
Nelson, Jr. and his wife. A dispute about the road arose, resulting in litigation during
which Judge Harvey viewed the road, and ultimately entered a decree in 1981 that did not
precisely describe the road easement. (Clement v. Nelson, Lassen Co. Super. Ct. No.
14687.) Neither the relevant deeds nor Judge Harvey’s judgment are in the record on
appeal.1
Plaintiffs (sometimes collectively Hoss) now own the dominant parcel, and
defendants (sometimes collectively Hagen) own the servient parcels.2

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1 Respondents assert without reference that the relevant deed granted “‘the right to use
the road as it presently exists[.]’” We normally disregard factual assertions unsupported
by record citations. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th
849, 856 (Duarte).) However, there is evidence in the record showing that Judge Harvey
found the deeded easement consisted of the actual road then in use. That would not be an
unusual decree for a rural road. (See County of Colusa v. Charter (1989) 208 Cal.App.3d
256 [public road width was the roadway actually in use, not county-resolution or state-
law standard width].) It appears the road was later slightly re-routed, by mutual consent,
which is commonly done on rural roads.

We note that plaintiffs, as the appellants, bore the burden to provide an adequate record
on appeal. (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043,
1051, fn. 9.) “To the extent the record is incomplete, we construe it against [them].”
(Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498 (Sutter).)
2 Plaintiffs are Daniel Hoss and Anna Vermillion-Hoss. Defendants are Carlin R. and
Sheri Hagen, Gregory K. and Cynthia L. O’Neil, and Edgar and Connie J. Thompson.
The owners of the fourth servient parcel are not parties herein.

2
 In July 2010, Hoss hired counsel (Eugene Chittock) to pursue remedies against
Hagen for allegedly interfering with the easement. The year before hiring counsel, Hoss
had paid Vernon Templeton, a surveyor, $600 to “set spikes at the angle points” to
indicate the “‘centerline existing road easement’” based on a recorded 1995 parcel map.
At the direction of counsel, Hoss asked Templeton to perform a full survey of the
easement, which he did on August 17, 2010, and for which he was paid $900.
The original complaint in this case was filed on September 22, 2010, and various
amended complaints and a cross-complaint ensued; trial briefs were filed on March 13
and March 20, 2012. None of these documents are in the record on appeal.
The Motion to Disqualify
On March 22, 2012, Hoss moved to disqualify Frank Cady, counsel for Hagen,
and Templeton and members of his engineering firm.3
Initially, the sole evidentiary support for the disqualification motion consisted of
Chittock’s declaration and attached exhibits.
Chittock’s declaration asserts that on August 9, 2010, he spoke with Templeton
over the telephone and Templeton agreed to serve as an expert witness in the case.
Several days later Chittock met with Templeton, who asked how Chittock planned to
prove that the width of the easement was 27 feet, and Chittock “responded by explaining
our theory of the case and trial strategy. Although I doubt I referred specifically to the
attorney-client privilege or attorney work product doctrine, I did convey to Mr.
Templeton the confidential nature of the information being shared.” Further

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3 Templeton’s firm is NST Engineering (NST); the two other experts from the firm who
Hoss sought to disqualify were Korbe Brenner and Fred Nagel. Given our resolution of
this case, it is not necessary to determine what information was exchanged between
persons within the firm. (Cf. Western Digital Corp. v. Superior Court (1998) 60
Cal.App.4th 1471, 1482-1488 (Western Digital) [fact one expert in a firm should be
disqualified did not compel disqualification of another expert in that firm].)

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conversations with Templeton and his firm followed. On or about August 19, 2010,
Chittock spoke with Templeton “to discuss additional details concerning the map he was
supposed to produce. Confidential information was again provided to Mr. Templeton, as
the map was intended to reflect plaintiffs’ theory of the case.” However, the map
Templeton drew “did not show the location of the claimed encroachments.” On August
26, 2010, a settlement conference with the parties took place in Chittock’s office, but did
not resolve the dispute. Templeton declined to serve as an expert witness, and he later
was designated as an expert by Hagen’s counsel, Cady.
Chittock’s declaration also asserted that he spoke with Jeff Morrish, an NST
engineer, and claimed both that he “provided confidential information concerning
plaintiff’s theory of the case to Mr. Morrish” and that his clients shared “confidential and
privileged information” with Morrish. Chittock’s basis of knowledge for information
conveyed by his clients is not established by his declaration.
The Opposition
Hagen’s opposition principally relied on two legal points. First, at the settlement
conference referenced by Chittock, the map reflecting Chittock’s theory of the case was
seen and discussed by the parties, therefore any privilege pertaining thereto was waived.
Second, Chittock failed to describe any purportedly confidential information revealed to
Templeton, or its materiality to the case.
Templeton declared that he and his firm had “done all of the surveying and
mapping” for the relevant land except for one 1981 parcel map made by Joe Rickett.
In 2009, Hoss hired NST to survey and map the area based on the firm’s past work, and
in 2010 Templeton added information as requested, resulting in the map given to
Chittock for the settlement meeting. “At no time . . . were we either engaged or hired as
consultants or experts, provided any or told we were [being] provided any confidential
information [or] told that our work for them (plaintiffs) was for a lawsuit[.]”
Templeton’s firm had worked on the Nelson Ranch since 1982, “processed no less than

4
five (5) recorded parcel maps and two (2) lot line adjustments of the lands[,]” and
surveyed the centerline “several times from 1982 through 1999 before being requested by
Mrs. Hoss . . . to do it again in 2009 and again in 2010.”
Templeton denied the substance of his conversations as recounted by Chittock’s
declaration, and declared that neither Chittock nor plaintiffs told him they wanted him or
his firm to act as a consultant or expert “in any anticipated or actual litigation. Nor would
I have agreed to do so because, as I told the Hosses from day one, I did not believe they
had any rights greater than what the 1981 decree gave them. At no time did Mr. Chittock
nor the Hosses provide me with any information concerning what their legal theory(ies)
were.” Nor was Templeton told that anything he was doing was confidential. In
particular, Templeton did not believe the plaintiffs had the right to a 27-foot roadway,
and he had told them so, although he staked points 13.5 feet from the centerline at their
request, plus an additional six feet out, thinking they were coming to “some sort of ‘road’
agreement concerning the right-of-way, which is a common occurrence.” Templeton told
Chittock, as he had told plaintiffs, “that I did not agree that they had a 27’ wide travelled
way because the court decree said they had what existed in 1981, which was not 27’
wide.” Templeton admitted that when he met Chittock on August 12, 2010, “Chittock
told me that he could make a good argument to the court to claim that they did in fact
have a 27’ wide travelled way.” This was the first reference to court Templeton had
heard, and Chittock “did not say anything or explain anything as to what such argument
[to the court] would be.” Further, Templeton thought Chittock was speaking
hypothetically and “I still assumed the parties were working on an agreement and had a
meeting coming up to discuss such agreement. In any event, I told Mr. Chittock
something to the effect that if he did take this to court, to not call me as a witness because
I did not agree that he ‘could make a good argument’ [i.e., for a 27-foot right-of-way] and
I would testify that way.” A notation on a map that indicated a 27-foot right-of-way,

5
purportedly used by Chittock during the settlement conference, was not placed there by
Templeton’s firm.
Defendants declared that during the settlement conference, Chittock displayed a
map with a note indicating a “27-foot travelled way” that Chittock claimed was made by
NST, and that Chittock claimed the easement itself was 40 feet wide, because the width
was stated at 27 feet on maps recorded “after the 1966 grant deed and Judge Harvey’s
1981 order[,]” and “per County standards” plaintiffs had the right to build ditches on
either side, which would take up an additional “6.5 feet and therefore his clients had to
have an easement of 40 feet[.]”
Morrish’s declaration denied that he had received any confidential information
from Chittock, or “detailed information concerning the ‘theories’ of his case. Such legal
theories would have meant nothing to me anyway since I did not know any particulars
about the matter of which [Chittock] seemed concerned.”
Cady’s declaration asserts he was retained by defendants on September 28, 2010,
after Chittock’s meeting with them. Cady’s clients told him that Chittock had shown
them a map and recorded documents, and “fully explained to them, mostly in response to
their questions, his entire theory of his case as to why he believed his client had a 27’
wide roadway and a 40’ wide easement,” and for this reason Cady believed he was free to
speak with Templeton. On November 12, 2010, after a local bar association meeting,
Chittock and his associate freely discussed with Cady their theory of the case, and in
particular explained why they had not filed the current dispute in the original 1981 action
granting injunctive relief (such as by moving for contempt), but instead based their
claims on subsequent actions, to wit, a post-1981 recorded map indicating a 27-foot
travelled way, and County road standards calling for “six or so feet” on either side of a
road for drainage purposes. On November 30, 2010, Cady and Chittock again met and
Chittock again outlined his theory of the case. Cady then marshaled publicly available
documents and maps to refute Chittock’s theory, and on January 10, 2011, reviewed them

6
with Chittock “so that I could show him that the ranch road in 1966 and again in 1982
was just as Judge Harvey had found, not wide enough for two cars to pass.” Further
discussions about “our respective legal theories” took place, and those theories were
outlined in “no less than 27 pleadings with this court within the four corners of which
each of us set forth repeatedly our respective legal theories[.]”4
Reply to Opposition
Chittock’s reply declaration asserted Templeton had a motive to lie arising from
an unrelated small claims action, and described further details of purported conversations
between him and Templeton. Chittock conceded discussing the case with Cady, but
claimed “I certainly did not share all my theories or trial strategies.”5
Plaintiff Anna Hoss declared she discussed with Templeton the “probability” of
litigation over the easement as early as May 6, 2009. Her husband declared he had read
his wife’s notes and her declaration and that her declaration was “accurate to the best of
my recollection.”
Further Opposition
Templeton declared he was not biased against Chittock because of the small
claims case, which he had lost on a statute of limitation ground, not on the merits. He
denied that Anna Hoss told him there was a probability of litigation, and if she had done
so, he would have told her his firm was not available. He had told her several times that
she did not have a 27-foot road easement.

_______________________________________________________________________
4 The Register of Actions shows Hagen repeatedly demurred, resulting in a third
amended complaint, and the parties filed their trial briefs before the motion to disqualify.
Absent a record showing otherwise, we infer the legal theories of the parties were shown
by the court documents. (See Sutter, supra, 171 Cal.App.4th at p. 498.)
5 Chittock initially argued only that the opposition was untimely and too long, but he
was later granted permission to file a substantive reply. He mentions these points on
appeal, but fails to head or argue them. Therefore we disregard them. (Loranger v. Jones
(2010) 184 Cal.App.4th 847, 858, fn. 9 (Loranger).)

7
 Declarations by several defendants and by the daughter of the O’Neil defendants
showed the Hosses were not in the room during the meeting where Chittock displayed
and distributed copies of the relevant map.
Denial of the Motion and Subsequent Events
The trial court denied the motion.
The trial court first found “the mere hiring of Mr. Templeton by Plaintiff Hoss in
May 2009 to perform a center line survey of the easement at issue and the subsequent
hiring of Mr. Templeton in July of 2010 by counsel Cady [sic, Chittock] did not create a
confidential relationship. The court finds that based upon the declarations submitted the
moving parties have not proved by a preponderance of the evidence that it was
objectively reasonably for the moving parties to subsequently conclude that a confidential
relationship existed.”
The trial court also found “assuming for purposes of argument that a confidential
relation[ship] was established . . . the moving parties have not proven by a preponderance
of the evidence that confidential or privileged information was disclosed to Vern
Templeton or to the other named witnesses. The court finds that a discussion of the
strategy of the Plaintiffs or the Plaintiffs’ counsel[’s] view of the law or other claimed
disclosures as set forth in moving and responding papers of the moving parties did not
constitute disclosures of privileged or confidential information.”6
Hoss timely filed this appeal. The appeal lies. (See Machado v. Superior Court
(2007) 148 Cal.App.4th 875, 882.)7

_______________________________________________________________________
6 Various objections had been made, but the trial court did not rule on them, and they are
not relevant to describe on appeal, as neither party heads any claim about them.
7 The trial court has stayed the proceedings, pending resolution of this appeal.

8
 DISCUSSION
I
Standard of Review
“On review of an order granting or denying a disqualification motion, we defer to
the trial court’s decision, absent an abuse of discretion. [Citations.] The trial court’s
exercise of this discretion is limited by the applicable legal principles and is subject to
reversal when there is no reasonable basis for the action.” (In re Complex Asbestos
Litigation (1991) 232 Cal.App.3d 572, 585.) “Even when there are no factual findings, if
substantial evidence supports the trial court’s implied findings of fact, an appellate court
reviews the conclusions based on the findings for abuse of discretion. [Citation.] The
same is true when the trial court has taken the extra step of stating the factual reasons for
its disqualification order.”8 (Ibid.)
Another applicable rule of appellate review also applies in this case because, “A
factual contest based on written evidence is treated like other factual contests.”
(California Correctional Supervisors Organization, Inc. v. Department of Corrections
(2002) 96 Cal.App.4th 824, 832 (CCSO).) On appeal, we construe the evidence in the
light favorable to the trial court’s ruling. (See Doak v. Bruson (1907) 152 Cal. 17, 19 [“If
there is any conflict in the affidavits, those in favor of the prevailing party must be taken
as true, and the facts stated therein must be considered established”]; Toyota Motor Sales
U.S.A., Inc. v. Superior Court (1996) 46 Cal.App.4th 778, 783 (Toyota Motor Sales).)
The trial court was free to disbelieve Hoss’s evidence and believe Hagen’s evidence.
(See Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [“Provided the trier of the facts does

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8 Our Supreme Court has said that “a disqualification motion involves concerns that
justify careful review of the trial court’s exercise of discretion.” (People ex rel. Dept. of
Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144,
emphasis added.) This point has been duly repeated, including by this court. (See
Collins v. State of California (2004) 121 Cal.App.4th 1112, 1123.) But we note that we
give “careful review” to all matters properly brought before us.

9
not act arbitrarily, he may reject in toto the testimony of a witness, even though the
witness is uncontradicted”]; CCSO, supra, 96 Cal.App.4th at p. 832.) We presume the
trial court’s factual findings are supported by the evidence, and it is Hoss’s burden, as the
appellant, to show that they are not. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d
875, 881 (Foreman).) As a corollary, an appellant who fails to state the facts fairly
forfeits evidentiary claims. (Foreman, supra, 3 Cal.3d at p. 881.)
II
Application of Legal Standards
Hoss claims the trial court improperly followed federal precedent, rather than
following controlling California law.9 We disagree.
The order denying disqualification states the movants had to show (1) that it was
objectively reasonable for them to believe a confidential relationship existed between
them and Templeton, and (2) that “confidential or privileged information was actually
disclosed by moving parties or their counsel” to Templeton.
In support of this legal standard, the trial court cited two federal cases, Wang
Laboratories, Inc. v. Toshiba Corp. (E.D. Va. 1991) 762 F.Supp. 1246 (Wang) and Paul
v. Rawlings Sporting Goods Co. (S.D. Ohio 1988) 123 F.R.D. 271 (Paul).
Paul, an early case on the issue of expert disqualification, held as follows:

“[T]he proper focus in such situations is to determine, first, whether the
attorney or client acted reasonably in assuming that a confidential or fiduciary
relationship of some sort existed and, if so, whether the relationship developed
into a matter sufficiently substantial to make disqualification or some other
judicial remedy appropriate. Stating each proposition negatively, if any
disclosures of privileged or confidential material were undertaken without a

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9 Hoss also discusses the tentative decision. Even if the tentative decision could have
relevance after the final decision, the tentative decision is not in the record. We disregard
any references to it, and to other facts Hoss refers to without record citations. (See
Duarte, supra, 72 Cal.App.4th at p. 856.)

10
 reasonable expectation that they would be so maintained (so that, in effect, any
confidentiality or privilege relating to the matters communicated was waived), or
if, despite the existence of a relationship conducive to such disclosures, no
disclosures of any significance were made, it would seem inappropriate for the
court to dictate to the expert or his new employer that his participation in the case
be limited or eliminated.” (Paul, supra, 123 F.R.D. at p. 278.)
In Wang, a patent expert was consulted by an attorney trying to prove the validity
of certain patents, but the expert wrote a report concluding the patents were invalid, and
he was later retained by opposing counsel. (Wang, supra, 762 F.Supp. at pp. 1246-1247.)
Because the parties contested “whether the earlier retention and passage of confidential
information occurred[,]” Wang applied the two-step Paul test. (Id. at p. 1248.)
The test derived from Paul and Wang has been endorsed in California, by Shadow
Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1079-1080 & 1080-1081,
fn. 9 (Shadow Traffic). Shadow Traffic quoted Paul in part as follows:

“‘[I]f any disclosures of privileged or confidential material were undertaken
without a reasonable expectation that they would be so maintained (so that, in
effect, any confidentiality or privilege relating to the matters communicated was
waived), or if, despite the existence of a relationship conducive to such
disclosures, no disclosures of any significance were made, it would seem
inappropriate for the court to dictate to the expert or his new employer that his
participation in the case be limited.’” (Shadow Traffic, supra, 24 Cal.App.4th at p.
1080, quoting Paul, supra, 123 F.R.D. at p. 278, and citing other authorities.)
Accordingly, “[C]ommunications made to a potential expert in a retention
interview can be considered confidential and therefore subject to protection from
subsequent disclosure even if the expert is not thereafter retained as long as there was a
reasonable expectation of such confidentiality.” (Shadow Traffic, supra, 24 Cal.App.4th
at p. 1080, emphasis added.) After finding on the facts that such a confidential
relationship existed, Shadow Traffic then considered whether any “confidential
communication” was given to the expert, a point on which the evidence conflicted, and
deferred to the trial court’s resolution of that factual conflict to find that confidential
material had been given to the expert. (Id. at pp. 1082-1084.) Shadow Traffic then

11
considered whether the expert gave that confidential information to the opposing counsel,
applied a presumption that this had occurred, and found the presumption had not been
rebutted. (Id. at pp. 1084-1087; see Toyota Motor Sales, supra, 46 Cal.App.4th at pp.
781-782 [if former consultant possessed material confidential information, “a rebuttable
presumption arises that the consultant has disclosed such information to present
counsel”].) Shadow Traffic also cited Wang with approval, albeit in two footnotes.
(Shadow Traffic, supra, at pp. 1080-1081, fn. 9 & p. 1083, fn. 11.)
In this case, the trial court followed the Shadow Traffic mode of analysis, although
it did not cite Shadow Traffic, but instead cited the root authorities, Paul and Wang.10
The trial court first found “the mere hiring” of Templeton by Hoss to stake the
center line in 2009 and “the subsequent hiring of Mr. Templeton in July of 2010” at
Chittock’s direction “did not create a confidential relationship” and Hoss had not carried
the burden to show it was objectively reasonable to believe otherwise. The trial court
alternatively found that even if a confidential relationship was shown, Hoss had not
proven any confidential or privileged information was disclosed to Templeton, because
“a discussion of the strategy of the Plaintiffs or the Plaintiffs’ counsel[‘s] view of the law
or other claimed disclosures as set forth in moving and responding papers of the moving
parties did not constitute disclosures of privileged or confidential information.”
Therefore, the trial court had no reason to consider whether to apply a presumption that
Templeton passed on any confidential information to Cady, having found Templeton
never obtained such information from Chittock.
Because the trial court made findings consistent with the Shadow Traffic mode of

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10 Indeed, Shadow Traffic was cited and discussed by the moving and opposing papers,
and it was discussed in detail at the hearing on the motion to disqualify, including its
reliance on federal cases. This belies Hoss’s evident view that the trial court was
ignorant of California law.

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analysis, the trial court properly followed California law.11
Without a separate heading or citation to any supporting authority, Hoss claims
that we should extend the law to compel disqualification based on a mere “appearance of
impropriety,” and contends that was the basis for the trial court’s alleged tentative
decision (see fn. 9, ante). This argument is forfeited both because it was not separately
headed and Hoss provided no supporting authority in the opening brief to extend the law.
(See Loranger, supra, 184 Cal.App.4th at p. 858, fn. 9.) Raising the contention in the
reply brief is insufficient. (Kahn v. Wilson, supra, 120 Cal. at p. 644.)
Moreover, as Hagen points out, California law is to the contrary:

“The trial court’s power to disqualify counsel is derived from the court’s
inherent power ‘[t]o control in furtherance of justice, the conduct of its ministerial
officers.’ [Citations.] Disqualification motions implicate several important
interests, among them are the clients’ right to counsel of their choice, the
attorney’s interest in representing a client, the financial burden of replacing a
disqualified attorney, and tactical abuse that may underlie the motion. [Citation.]
The ‘paramount’ concern in determining whether counsel should be disqualified is
‘the preservation of public trust in the scrupulous administration of justice and the
integrity of the bar.’ [Citations.] It must be remembered, however, that
disqualification is a drastic course of action that should not be taken simply out of

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11 In the reply brief, Hoss contends the trial court “failed to indicate on the record that it
considered the appropriate factors and made specific findings of fact when weighing the
evidence in a recusal motion.” To the extent Hoss intended to raise a new point not
answered by the above discussion, that new point comes too late, and therefore we deem
it to be forfeited. (See Kahn v. Wilson (1898) 120 Cal. 643, 644.)
Also for the first time in the reply brief, Hoss contends the trial court “almost
certainly” regarded the motion with disfavor because the judge knew Cady “for many
years” and “once practiced law in the same office.” This claim of bias is forfeited both
because it was not made in the opening brief (Kahn v. Wilson, supra, 120 Cal. at p. 644),
and because it is not supported by record references (Duarte, supra, 72 Cal.App.4th at p.
856). We add two more things about this inappropriate claim. First, the fact that a judge
rules against a party does not show bias. (See Shakin v. Board of Medical Examiners
(1967) 254 Cal.App.2d 102, 116-117.) Second, absent a record showing bias, castigating
the fact finder is both unpersuasive and improper. (See Lazzarotto v. Atchison, T. &
S.F.R. Co. (1958) 157 Cal.App.2d 455, 462 [“counsel . . . should not have assumed that
we would be influenced by their epithets”].)

13
 hypersensitivity to ethical nuances or the appearance of impropriety.” (Roush v.
Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 218-219; see DCH Health
Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 833[“an appearance of
impropriety by itself does not support a lawyer’s disqualification”]; Gregori v.
Bank of America (1989) 207 Cal.App.3d 291, 305-309.)
Accordingly, we decline Hoss’s request that we change California law.12
III
Substantial Evidence
Having concluded that the trial court applied the proper legal standards to the
disqualification motion, we now explain why the evidence, viewed in the appropriate
light, supports each of the trial court’s alternatively dispositive findings.13
A. Confidential Relationship
The trial court found it was not objectively reasonable for Chittock to believe he
had created a confidential relationship with Templeton.
In making this finding, the trial court impliedly credited Templeton’s declaration
over Chittock’s declaration. Templeton declared he did not know litigation was
contemplated when he performed two routine services at Hoss’s request, namely staking
the centerline and then surveying the road, services similar to those Templeton and his
firm had done on that very property over the past 30 years. Templeton denied that either
Chittock or Hoss told him their conversations were confidential or made in anticipation

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12 The only California authority cited by Hoss--belatedly in the reply brief--involves the
standards for disqualification when an attorney represents a client against a former client
or related entity, impairing the duty of client confidentiality, or the duty of client loyalty,
or both duties. (See Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp. (1995) 36
Cal.App.4th 1832, 1838-1845.) That is not the fact situation here. (See Paul, supra, 123
F.R.D. at p. 281 [“there is less stigma attached to an expert ‘changing sides’ in the midst
of litigation than an attorney, who occupies a position of higher trust”].)
13 Throughout the briefs, Hoss states the facts as if the trial court was required to credit
the facts stated in the moving declarations. We would be fully justified in deeming all
evidentiary issues to be forfeited. (See Foreman, supra, 3 Cal.3d at p. 881.) However,
we elect to address them in this appeal. That is not to be taken by counsel as an invitation
to ignore proper appellate procedures in the future.

14
of litigation. These facts support the trial court’s finding that it was not objectively
reasonable to believe a confidential relationship with Templeton existed.
Hoss claims “Templeton admits that Chittock discussed the possibility of litigation
during” their August 12, 2010 meeting. The page cited in support of this claim is to the
portion of Templeton’s declaration wherein Templeton declared he “assumed [Chittock]
was talking about a hypothetical situation because I still did not know of any planned or
existing litigation and I still assumed the parties were working on an agreement and had a
meeting coming up to discuss such agreement. . . . Again, at no time during this
conversation was I told by Mr. Chittock that they were doing this work in anticipation of
litigation or that what we were discussing was confidential.” Thus, the declaration, in
context, shows Templeton did not think there was any pending or planned litigation, or
that his conversation with Chittock was confidential.
Contrary to Hoss’s claim in the reply brief, an expert’s “naked denial” of receipt
of confidential information can provide substantial evidence to support an order denying
disqualification. Generally, the testimony of a single witness is sufficient to prove any
fact. (See People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) “[T]he testimony of a
witness offered in support of a judgment may not be rejected on appeal unless it is
physically impossible or inherently improbable and such inherent improbability plainly
appears.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44
Cal.App.4th 1160, 1204 (Beck).) Templeton’s declarations were not inherently
improbable. They were detailed, consistent, “‘reasonable in nature, credible, and of solid
value’” (Beck, supra, 44 Cal.App.4th at pp. 1203-1204) and therefore provided
substantial evidence to support the trial court’s findings.
The dispute about whether particular conversations were or were not confidential
could have been avoided had Chittock asked Templeton to sign a confidentiality
agreement, the “better practice” emphasized in the very authority Chittock relies on.
(Shadow Traffic, supra, 24 Cal.App.4th at p. 1083 & fn. 11; see Western Digital, supra,

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60 Cal.App.4th at p. 1481, fn. 2 [“wiser policy” is to document the nature of the expert
interview]; Wang, supra, 762 F.Supp. at p. 1250 [“A lawyer seeking to retain an expert
and establish a confidential relationship should make this intention unmistakably clear
and should confirm it in writing”]; Paul, supra, 123 F.R.D. at p. 279 [it would be “ideal”
to document the confidential relationship with the expert and it is not “unfair to place the
burden” on the attorney to ensure the expert understands the nature of the relationship].)
“A few simple steps in the right direction at the beginning of the [attorney-expert]
relationship protect against countless problems down the road.” (Hebert, Protecting You
and Your Expert Witness from Conflicts of Interest (Cont.Ed.Bar Sept. 1998) 20 Civ. Lit.
Rptr. 202, 207; see also Morrow, Issues Relating to Expert Disqualification (State Bar of
Cal., Litigation Section, Spring 2004) 17 Cal. Litigation 24, 30.) This answers Hoss’s
claim that it “remains mysterious” what evidence would have satisfied the trial court that
a reasonable belief in a confidential relationship existed. Although facts other than a
confidentiality agreement might show such a reasonable belief, Chittock’s failure to have
Templeton sign one relegated Chittock to relying on his own declaration to prove such
fact, and the trial court impliedly found that declaration unpersuasive.
B. Disclosure of Confidential Material
The trial court made the alternative finding that no confidential information was
communicated to Templeton. This finding, too, is supported by the record.
Templeton has always been of the opinion that Hoss does not have a 27-foot right-
of-way. He shared that opinion first with Hoss, then with Chittock, and then with Cady.
It was not based on any information--confidential or otherwise--given to him by Hoss or
by Chittock. It was based on Templeton’s professional experience generally, coupled
with his knowledge of this particular road, the 1966 deed, Judge Harvey’s 1981 decree,
and repeated surveys of this property over many years by his firm. The only thing
Chittock told Templeton that Templeton did not already know was that Chittock thought
it was important that one particular recorded map made reference to a 27-foot right-of-

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way. This was not confidential information, because the record shows Chittock openly
shared that theory at the settlement meeting, in discussions with Cady, and in documents
filed with the trial court in this case. (See fn. 4, ante.)
In rejecting a claim similar to Hoss’s, other courts have found disqualification
unwarranted where the information given to the expert was reflected by pleadings,
discovery, and voluntary disclosures. (See Western Digital, supra, 60 Cal.App.4th at pp.
1482-1483 [information given to expert was reflected by the pleadings, discovery
responses and a settlement statement outlining “in great detail Amstrad’s damage claims
and theories”]; Toyota Motor Sales, supra, 46 Cal.App.4th at p. 783 [“factual or technical
information that was discoverable in the case”]; Nikkal Industries, Ltd. v. Salton, Inc.
(S.D.N.Y. 1988) 689 F.Supp. 187, 191-192 [“essentially technical” information].) Here,
as just explained, nothing Chittock said was material to Templeton’s opinion. (See Paul,
supra, 123 F.R.D. at p. 180 [the expert “would have produced the same report and drawn
the same conclusions even if he had never spoken to” the first attorney].)
Accordingly, the trial court’s finding that no confidential information was given to
Templeton is supported by the evidence, viewed in favor of the ruling.
MOTION FOR SANCTIONS
Although we have rejected Hoss’s appellate claims, and have pointed out several
breaches of appellate procedure by Hoss’s counsel, we do not find that their prosecution
of this appeal was for an improper motive and do not find that their claims are so bereft
of substance as to meet the stringent standards set by our Supreme Court for finding an
appeal to be frivolous. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-651.)
Accordingly, we deny Hagen’s motion for sanctions for a frivolous appeal.

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 DISPOSITION
The order denying disqualification is affirmed. Hoss shall pay Hagen’s costs of
this appeal. (See Cal. Rules of Court, rule 8.278.)

DUARTE , J.

We concur:

NICHOLSON , Acting P. J.

MAURO , J.

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