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Noushfar v. Shayesteh6/28/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant Mike Noushfar is the plaintiff in a civil RICO action against his former employers and others. After nine days of trial and further hearings, the trial court granted the motion of one of the defendants, respondent Iraj Shayesteh, to disqualify appellant's counsel because he also represented Iraj's estranged wife in dissolution proceedings pending in another county. The court based disqualification on the marital communication privilege (Evid. Code, ยง 980), apparently believing that appellant's counsel's continued representation of both appellant and Iraj's estranged wife would necessarily lead to disclosure of privileged confidential marital communications to counsel if he continued as appellant's counsel. Appellant contends that disqualification was not warranted on the showing made by Iraj's motion.
We agree and reverse.
I. FACTS
The state of the record is less than optimal. The transcript of the nine days of trial has not been provided to us, and many of the purported "facts" are before us in the form of allegations in pleadings. Some are in the form of "agreed" facts in the briefs. We state the essential facts as best we can-if only, at times, for purposes of describing the background of events which led to the disqualification proceedings.
Respondents Iraj Shayesteh, Kamran Shayesteh, and Abraham Shayesteh are brothers who owned and operated the Galleria de Farsh, a Burlingame purveyor of rugs and carpets, including Persian carpets and handmade rugs from China, India and Pakistan. At least as early as 1992, Iraj, Kamran and Abraham allegedly conspired together and formed a complicated scheme to smuggle Iranian carpets into the United States through Canada, in violation of an executive order prohibiting the importation of Iranian products.
At some time in 1992, the Galleria de Farsh hired appellant to be its "internal accountant" and "insurance broker," with additional duties including "driving truck for deliveries and selling on the floor to customers." At the request of Iraj, who is allegedly the head of the Galleria business, appellant made three truck trips to Seattle to pick up loads of carpets which had apparently been smuggled in from Vancouver. Appellant claims he was unaware the carpets were of the prohibited Iranian variety, and thought he was "just a driver" and simply carrying out the wishes of his employer. Appellant alleges Iraj and his brothers "set him up as a fall guy to cover their participation in a smuggling operation."
The smuggling operation was uncovered in 1993. Appellant and several others were arrested. Appellant was charged and convicted of illegal smuggling. His conviction was reversed by the Ninth Circuit, and the charges were eventually dismissed. Kamran and his wife were convicted of RICO violations and other related offenses.
In April 1997, appellant filed a civil RICO complaint against Iraj, Kamran, and Abraham, seeking damages for his incarceration and trial. The complaint, filed in Alameda County Superior Court, sought money damages under RICO, as well as damages based on theories of negligence, false imprisonment, and negligent and intentional infliction of emotional distress. Appellant was represented by attorney William K. Wilburn.
After pretrial motions and the filing of a First Amended Complaint, app
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