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~Fril I~T; ~,~]U~ ZU~ ~4	~ 1-1Z-8~; 9:41 ; LAW OFFICES F, 
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NOT TO BE PUBLI-~TED

IN I~E COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT

DIVISION THREE

	RELIGIOUS [ECHNOLOGY CENTER, etal., )	BO68261
	)	(Super.Or.No. BC033035)
	P:Laintiffs and Appellants, )
	)
	v.	)	COURT IF APPEAL ú lEaliD I)I:ST.

	JOSEPH A. fANNY, etal.,	)
	)
	D ~fendants and Respondants. )	JAN 11 1994
)

~s~u~y
APPEAL from a Judgment of the Superior Court of Los

Angeles County. Raymond Cardenas, Judge. Affirmed.

Rabincwitzo Bcudin. Standard, Kr~n~ky & L~eberman. Eric M. Li~berman, 
and William T. Drescher for Plaintiffs and Appellants

L~,~is, D'~ato, Brisbois & Bisgaard, David B. Parker, Graham 
E. Xerry, Ja=esh Patel~ Joseph A. Yann~, in pro per, for Defenda~nts 
and Respondants.


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3

Re1igious.Technology Center, 'Church of Scientology International, 
and Church o'f Scientology of CaliZornia (collectively, 'Scientology') 
appeal from a Judgment of dismissal ~hich followed the granting 
without leave.to amend of the motion of defendant Joseph Yann3[1/for 
Judgment on the pleadings. We find that the Judgment was properl~ 
granted, an~ we shall therefore affirm it.

[~AL..~D_~CED~BACKGRO~D

From a~proximately mid-1983 until the end. of 1987, Yanny represented 
Sctentolog~ as its counsel in numerous legal

matters. ~e was initially retained as Scientology's counsel 
by Vicki Azna[an, who was at the time President of the Religious 
TechnolOgy Center.

S~ortly after Yann~ ceased to re~resent Scientolog~, Aznaran 
sn~ her husband, Richard Aznaran, a former chief of
securit~ f9r Scientology, told Yanny that Scientology had subjected 
:hem to extraordinary abuse end asked him to help 'them find 
mn attorney who could represent them ins lawsuit against Sc:hentology. 
The~nsrans sta~ed with Yann~ at his home for a]~out two weeks, 
and he referred th~to various layers. )n April 1, 1988, the 
Aznarans filed an action against Sc.entology in the United States 
Court for the Central District o: California.

I~ response, onJune 23, 1988, Scientolog~ filed an ,action against 
Yanny and others in the Los Angeles County

1~ Scientology's complaint named Yanny personally and also named 
Joseph H. Yanny, a Pro~essional Law Corporation.


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Superior Court ("~"), seeking an injunction and damages for 
breachof fiduciary.duty, breach of contract, tortious breach 
of the covenant of good faith and fair dealing,

constructi~e fraud, fraud, intentional interference with Contract, 
~ivil conspiracy and conversion. Yanny crosscomplained for unpaid 
legal fees. '

The Jury in~ awarded Yanny $154,000, and in bifurcated~Proceedings, 
the court found that: (1) Yanny and other lawyers neme~ in Scientology's 
complaint had not conspired breach Yanny's duties to Scientology~ 
end (2) Yanny ~ad not breached such duties. The court denied 
inJunctive!relief finding that: (1) Scientology had not establishe~ 
bl~ a preponderance of the evidence that breaches of duty by 
Ya~xn~ were reasonably probable in the future; and

(2)	the court had no~urisdiction to regulate the practice 
of law in the federal courts or in other state courts. The court 
concluded ;cien~ology would have to challenge any allegedly 
improper r4epresentation of its. adversaries by Yannl~ on a 
case-by-catze basis in any court where such representation might 
occur.2/-

01 July 1, 1991, Yanny substituted in as attorney of record 
for the Aznarans' ~ormer"attorney in their ~ederal action aga:Lnst 
Scientology. On.July 3, Scientolcgy filed a motion in he federal 
court to disqualify Yanny ~rom appearing

~	~ ~

Scientolog~, appealed that judgment. Its appeal was dismissed 
by this division on January 8, 1993 pursuant to rule 10, subdivision 
(c), Rules of Court, ~or failure to file tl~e record~on appeal 
within the time allowed.


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for the Aznarans in that action. On.July 18, it filed the present 
action in the superior court ~or damages Zor breach of fiduciary 
luty and a permanent injunction enJo'ining Yanny from 'violating 
the fiduciary duties he owed to [Scientology] as a result of 
:heir former attorney-client relationship.' In the superior 
c~urt complaint, Scientology also sought damages and an inJunct'.ion 
enjoining Yanny from vlolating duties owed to Scientolog:~ by 
representing one Gerald Armstrong, whom Scientologi~ alleged 
Yanny was representing in matters adverse to Scien~oLogy.3/ 
Scientology alleged that Yanny possessed confidenti,ll information 
which he obtained during' his representa!:ion of Scientology 
and that he 'traded on' that informatio,n in representing Scientology's 
adversaries, Armstrong ~nd the Aznarans.
S~ientology's motion to disqualif~ Yanny in the AznaranS' ~ederal 
action was granted shortly after it. was filed, on July 24, 
1991. In the superior court action, after resisting discovery 
requests by Yanny, which were aimed at identifyin~ confidential 
information which had been disclosed to Armstro~g and the Aznarans, 
8cientology stipulated that it

'[did~ not base any claim in this action on any alleged disclosure 
of . . . confidences to plaintiffs' adversaries, and

3/ A lawsuit between Armstrong and 2cientology came before this 
court, and we filed an opinion in that case, ~ '0[ Scientolouv 
v. ~ (1991) 232 Cal.App.3d 1060, on July 29, 1991, e~ortly afEer 
the filing of Scientology's complaint against Yenny. Yanny did 
not appear as Armstron9's counsel of record in that case, at 
leas= not on appeal. However, it appears he[may have filed a 
brief as amicus curiae at some point in the proceedings.


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that such :[was] not, and [would] not at trial be, an issue 
in this case. Based upon this stipulation Yanny filed a motion 
for Judgment on the pleadin~s.

The court granted the motion for Judgment on the pleadinqs, 
concluding that Scientolog~, couldnot maintain a cause of action 
for Yanny's allaped breach of fiduciary duties. without pleading 
and proving an injury caused by such breach--without alleging, 
that is, an actual disclosure of Scientology's confidences to 
its adversaries. A subsequent motion for reconsideration of 
the court's ruling on the motion for Judgment on the pleadings, 
or in the alternative, for leave to amend l~:s complaint to 
allege actual disclosures of confidence;, was denied on June 
15, 1992. This timely appeal followed.

CONTENTIONS ON APPE~ S~;ientology contends the trial court erred 
in: (1) holding it was not antitied to recover damages for Yanny's 
breach of ~iduciaryduty~ (2) denying s permanent injunction 
against further breaches of such duty~ (3) denying Scientology 
leave to sinend its complaint.	'

1.	Standard o[ Review

A motion for Judgment on the pleadings is the

equivalent of a general demurrat. (Columbia Casualty Co. v. 
~Northweste::n Nat. Ins. Co. (1991) 231 Cal'.App.3d 457. 468.)


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Accordingly% we review the trial court's grant of such a motion 
under the ~ame standard as we'would a Judgment after the sustaining 
of a demurrat. (~v. Western MaCArthur (1987) 192 Cal.App.3d 
951, 954~ P~v, City of O~al (1986) 178 Cal.Apl~.3d 280, 290.) 
Both motions test whether the allegations of the pleading under 
attack, if true, support the pleader's ~ause of action.' (Columbia 
Casualty Co. v. Northwestern. Nat: Ins. CO., J3~, 231 Cal.App.3d 
at p. 468.)

I~ making this determination, a court generally looks only to 
the face of the pleading, presumes all properly alleged facts 
to be true, and determines whether these facts constitute a 
cause of[action. However, 'in appropriate circumstances,.the 
court may ~1so consider matters subject to Judicialnotice. (Hu~hes 
v.=Western MacArthur.Co., ~, 192 Cal.App.3d at 955, and c~ses 
cited therein.)

Like a ~udgment based upon an order sustaining a demurrat, a 
judgment on the pleadings must be affirmed if one of the'several 
grounds of the motion is correct. v. Western!MscAr~hur_Co., 
JJJ~, 192 C81.App.3d at p. 954~ ~y. Count_v of Vanfurs (1979) 
25 Cal;3d 14, 21.) As with any rtiling, ú trial court's order 
granting Judgment on the pleadings rill be sustained if correct 
on any theory.

(D.~Lt~ ,. _Board of Mediest Examiners (1974) 11 cal.3a 1, j.~ 
v. iBerkofskv-Barret Productions. InC.' (1989) 211
Cal.App.3d 1067, 1071.)


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2.	Scientoloav Waz lqot Entitled To Recover Damace.Aoainst 
Yannv Without Pleadins and Provino an Actual D~sclosure oE Confiden~-ez,

An attorney's breach of the ethical duties of good faith and 
[idelity, which are owed by an attorney to his or her client, 
am,~unts to.legal malpractice and is actionable. (~ v. ~ (1968) 
258 Cal.App.2d 136, 1~9~ ~ v. Pacific Au~:omobile Ins. Co. (1958) 
156 Cal.App.2d 652, 663~ see generally Developments in the Law: 
Conflicts of rnteres~ in.th~ Lecal Prof,~ssion (1981) 94 Harv.L. 
Ray. 1244, 1486-1496.) However, 1:.kS any other action for damages, 
a claim for breach of an atto:rney's fiduciary duty has minim~ 
pleading requirement:s, namely, duty, breach, causation and 
damages. The absence of any one of these elements defeats the 
cause of

	ac=ion.	'

	X~ particular, for a former client to plead a cause of

action against its former attorney for damages for breach of 
the attorney's duties of loyalty and confidentiality, the client 
not only mus~ show the existence.and breach of a fiduciary ~uty, 
but also met show inJu=y proximately caused b~ such breac]. 
(~v. ~ (1991) I Cal.App.4th 1093, 1101~ Stockto~T}~eatr~- Inc, 
v. ~ (1953) i21 Cal.App.2d 616, 625-627.) Yanny contends, in 
effect, that Scien~ology fails to

state 8 ca~se. of action against YaW, because the allegations 
Of its comUlaint do not establish causation or inJur~. We agree.


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Scientology is simply incorrect in contending that it could 
establish a cause of action for breach of fiduciary duties by 
showing only that'a substantial relationship existed

between Yaany's prior representation of Scientology and his 
current rel,resentation of its adversaries; It is indeed establisheI 
beyond all possible dispute that a former client can successfully 
move to ~ its former a~torne~ from

representi:.~ the former client's adversary on a mhtter in which 
the attorn,~y has obtained confidential information; actual 
possession of confidential.information by the attorne~ need 
not be shown, !ut is presumed if the Client merel~ establishes 
that there is a substantial relationship between the ~ormer 
and the current representation. (Peo_Dle ez tel Daukme~ian v. 
Brown (1981) 29 ~al.3d 150, 156-157~ H.F~ Ahmanson_~_Co. v.
Brothers. ~[nc. (1991) 229 Cal.App.3d 1445, 1452-1453; Global

Van Lines, Inc. v. Su_Derior Court (1983) 144 Cal.App,3d 483, 
487-4~8.)~ Disqualification motions exist to enforce the duties 
of ~n attorney, as articulated in Business and Pro~ession Code 
section 6068, subdivision (e) an~ rule 3-310, subd. (d) f the 
Rules of ProfesSional Conduct for attorneys,

l~ See also, e.g., In re Com~lax Asbestos Li~icati~n (1991) 
232~Ca1.App.3d 572, 587; a~/1EiKED~v. Great Ameriaan Savinos 
& Loan (1992) 11 Cal.App.4th 109, 113-114S
LTu~tXMlg~ v~ Fireman's Fun~ Ins. Co. (1992) 6 Cal.App.4~h 1050, 
1056; Roserfeld Construction Co. v. Superior Cour~ (~991) 235 
Cal.App,3d 566, 575; ~q~stern Continental O_Dera~ina C~. V. 
N~tural Gas Cor~.' (1989) 212 Cal.App.3d 752~ 758-759~
West. Inc. v. ~ (1987) 188 Cal.App.3d 1297, 1302-1303; Elliottv. 
S~Clrarlan~ Unified School District (1985) 165 Cal.App.3d'562, 
~69, fn, 6; Graver. Grove Valve ú Reuula~or ~Lk (1963)'213 Cal.App,2d 
646, 652.


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to preserv. e client confidences and to refuse employment adverse 
to. a former client in matters on which the attorney has received 
~onfidential information.5/

Van v.lne~. Inc. v. 8u_Derior Court, aLt~/a, 144 Cal.App..3d 
at p. 489; western Continental ODeratingCo~; v. Natural Gas
ú ~t~Lfi, 212 Cal.App.3d at p. '759.) .It exists because a former 
client cannot prove whet is in the mind of the attorney,, nor 
should the attorney have to 'engage in a subtle evaluation of 
the extent to which he acquired relevant information ~n the 
first representation and of the actual use of that knowledge 
and information in the subsequent representation.'

Lines. Inc!. v. Superior Court, supra, 144 Cal.App.3d at p. 
489, quoting from Developments i~ the Law: Conflicts of Inter~t 
the Leoal ~rofession, &~_~, 9~ Harv. L. Rev. at p. 1318.)

It does not follow, however, that an action for ~witl lie against 
a former attorney, where the former client merrily shows a substantial 
relationship between the

J' Bus. & Prof. Code, S 6068, in relevant part, provides: *It 
is the duty of an attorney to do all of the following: . . . 
[](e) To maintain inviolate the confidence,
and at every peril to himself or'herself to preserve the secrets, 
o! his or her Client....'
RUle 3-110, subd. (d), Rules of Professional Conduct, substantially 
embodies the provisions of former rule 4-101 and rule 5-101pwwh~ch 
preceded rule 4-101. Rule 3-110, subd. (d), provides: I A member 
shall not accept employment adverse to a client or Zormer client 
where, b~, reason of the representation of the client or former 
client, the member has obtained confidential information material 
to the employment except with the informed written consent of 
the client or former client.'


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attorne~'s ~ormer and current representation and does not allege 
orbshow that the attorney actually possessed, disclosed or used 
confidential information. Scien~o~og~ cites no binding or persua~ive 
authorit~ ~or the proposition that damages are or should be 
recoverable under such circumstances, and ~e can imagine n~ 
reason in polic~ to s~ow such recover~.

We are unconvinced b~ Sciento~og~'s claim that damages must 
be presumed in cases of an a~torne~'s breach of ~ifiuciar~ duty, 
~us~ as the~ are presumed in cases o~ defamation per se. ~ is 
provided b~ s~a~ute that damages ma~ be pressed in cases o~ 
~ibel ~er se. (Civ. Code, S~ 45a, 46, 48a.') .No statute, and 
as ~e have observed, no ~u~icial authority, provides ~or pressed 
damages ~or an attorne~'e breach o~ confidence. rn addl~ion, 
jdamages are presumed in de~amation cases onl~ where it is established 
tha~ the fie~en~ant did ladeeft publish a

sta~emen~ and ~e statement ~as of a kind which, on its ~ace, 
base nat~.ral ~endenc~ ~0 in~ure a person's re~utation. (Civ. 
Code, SS 45a, 46; ~ v. ~ (~982) 32 Ca~.3fi Z49, z53.) .sc~.en~o~ogy 
~ouZd have the'ls~ go ~arther in cases o~ an a~torney' breach 
o~ confidence and presume not onZ~ damage ~rom the ~':iscZosure 
or use o~ a foyer ciien~'s confidences, but aZso he disclosure 
oruse itself.

norder to~ such disclosures or uses, the courts ha~e found it 
necessa~ ~o djsquaZi[y an at~orne~ ~rom representing a [ormer 
cZient's adversary, i~ the ne~


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representation bears s substantial relationship to the former 
one. However,.where the former client claims the damage inherehal) 
threatened by any adverse representation has already occurred 
nd seeks a money recovery for it, we fail to see any reason 
wh the former client should not be required, as is any plaintiff 
in an a~tion for damages, to identify the {njury and establish 
that the defendant attorney'.s breach caused it.k/

8cientolo~y claims, however, that it would be paradoxical to 
require a former client to reveal the very Confidences which 
are threatened by its former attorney's defection. Such a requirement 
clearly would be both paradoxical and improper in the context 
of a disqualification motion. (~Cf. ~ v. Superior Court (1983) 
149 Cal.App.3d 931, 934.)[ However, it is neither improper nor 
paradoxical in the context of an action for damages. If disclosure 
or use of the confidences is merely threatened, the plaintiff's 
proper remedy is ~a motion to disqualify the attorney from representing 
the plain~iff's adversary. If the confidenc. es have already 
been revealed or used, the damage has been done. That, indeed, 
is the very damage which gives rise to the plsintiff's right 
of

~/ Scientology is, of course, correct in arguing that nominal 
damages are appropriate where a plalntiff establishes a mere 
technical violation of ú right, and that nominal damages and 
punitive damages may be recovered where the damage is substantia~l, 
but the amount is not susceptible of precise
proof. (~ v. Hoefke (1987) 189 Cal.App.3d 1397, 14061 'AEt~a 
v. ~ (1972) 28 Cal.App.3d 1086, 1088.) But this
does not mean that even nominal damages can be recovered where 
the plaintiff does not plead and prove an ara:~, if 'technicall,' 
violation of a right, as opposed to showing the
mere existence of circumstances Dosinn a ~hre8~, even ú serious 
one, that.i right willbe violated.


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recovery, and it must be pied and proven, or an action for d~a~er~ 
sir~ye~oes not lie. The ~rial court thus quite
P p ~' g. t Judgment on the pleadings as to Scientology's

claims for damages.

ú 3". Scientolo~v Was Not Entitled t~ a Broad InjunCtion Affecting 
Yannv's Prac_~ice

8cientolog~ contends, however, that, having pled the existence 
of a substantial relationship between Yann~'s former representation 
of Scientology and any matter in which he might represent the 
Aznarans or Armstrong against Scientology, it was entitled to 
prove the existence of that relationship, and thereafter to 
obtain a permanent in~unction enJoining Yanny both from :epresenting 
those parties as their'attorney of record in mny proceeding 
in any court and from assisting them informa11~in an~ such proceedings. 
We cannot agree.

Iai~ially, Scien~ology has an adequate r~efiy by way of a disqualification 
motion, which it is free to file in any matter in ~hich it believes 
Yanny is improperly siding its adVersarie. The in~unction requested 
would do no more than enjoin Yan~ from 'violst. ing the fiduciary 
duties he owes plaintiffs as a result of their earlier attorney-client 
relationsh:hp,' and Yann~ is already prohibite~ from such violations 
b~ his duties under Business anti Professions Code
section 60~8 mn~ rule 3-310 of the Rules of Professional =ConduCt. 
~rther, given the broad phrasing of the requested


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.1.3.

injunction, the only means o~ en~orcing it would be to bring 
a motion for contempt in any proceeding in which Yanny might 
be representing or assisting an adversary. Such a motion would 
raise'the issue oZ whether Yanny was violating a duty to Scientolog~--precisely 
the issue which would be raised by an ordinary motion to d. 
isquali~y Yanny, which could be brought without re~ard' to the 
injunction.
Scientology denies a disquali~ication motion would be an effective 
remedy, and contends it has no effective remedy against threatened 
breaches by Yanny o~ his duties to because Y~ny has acted in 
the past, and may act 'in the future, 'behind the scenes' to 
give improper assistance to its adversarieS, rather than appear 
in their behal~ as.attorney record. SCientolog~ argues that 
it is unclear whether a court would hayS'jurisdiction to disquali~y 
an attorney who does make a ~ormal appearance in an action and 
who denies any participation in it.

T~s issue o~ whether a court would have Jurisdiction to enjoin 
an attorney from assisting a party 'behind the

scenes' in a particular case is, of course, not before us. However, 
i~ is mere sophistr~ to say that a court wouldhave Jurisdicti~ 
n to prohibit as a contempt Yanny's in~o~al or su~reptlti~us 
p~rticipation in s case, ~et sa~ that the sau court migh~ lack 
Jurisdiction to prohibit the same conduct as


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14.

potential violation of the attorney's duties under generally 
applicable; statutes and rules.

More ~undamentally0 the court.below had no jurisdiction to grant 
the injunction Scientology sought. 5Cientolog[CorreCtly argues 
that an attorney'S former client can seek t~ dis~ualify the 
attorney from an improper successive representation in either 
of two ways: either (1) by a disqualification motion in the 
action in which the former

attorney a~pears for the former's client's adversary (P~ re1. 
Deuk~Jian v. Brown,. ~, 29 Cal.3d st p. 1595 ~j~ Mun. Water 
Diet. v. Superior Court (1969) 269 Cal.App.ad 919, 927~ Grove 
v. Grove.Valve & Reculator Co., ~d~RIA, 213 Cal.App.ld at p. 
6~2)~ or (2) by a separate action to enjoin the advers~ representation 
(watchumna water co. v.

	t	ucc	brought, the

injunction was directed only against the attorney's particlpat;~on 
in specific lawsuits in courts whose proceedings are subjec~ 
to the Jurisdiction of the court issuing the injunction (~) 
Scientology has cited no precedent for the kind o broad injunction 
which it seeks. Indeed, such authority s exists is squarely 
against the issuance of Such an injunction

Tl~e power to disquaIify an attorney derives from the =court's 
inherent power to control the conduct of persons


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15.

any mannez connected with.a Judicial proceeding before.it, in 
every matter pertaining thereto.' (Code Civ. Proc.# S 128, Subd. 
(a) 5)~ In re Com_Dlex Asbestos Liti_eation, KMP/I, 232 Csl.App.3e 
at p. 600.) A superior court has no inherent or statutory lower 
to control the conduct of persons in Judicial proceedings pending 
or later to be brought before a different court, and indeed 
is not permitted to interfere with the process of another court 
of equal jurisdiction in a case properly before the latter. 
(~) This is s matter of fundamental comity between courts, which 
should not be set aside in w~at would amount to an ineffectual 
effort to enable Scientolog~, in one.single proceeding, to prevent 
Yann~ from ever using confidences he obtained while serving 
as attorney to assist its adversaries in any proceeding at any 
time.

sum, the injunction was both duplicative o~ existing remedies 
and beyond the court's Jurisdiction. It was therefore properly 
denied.

The Cour~ Di~ Not AbuseIts Discre~ion in Denvino
Scientoloov The Opportunity to~en~ Its Complaint.

SCientology contends it should have'been afforded the

	OpportunitY of amending its complaint to allege actual
	is	e~ of confidences	a
	d closur	. As general matter, a motion for

Judgment on the pleadings should not be granted without leave 
to amend if facts are alleged which would entitle the plainti. 
ff


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to relie~ under any theory. (_ConC_er~e~ Citizens o~ Costa Mesa. 
XJ~AAV. ~2nd Diet, A_criCultural ~2sn. (1986) 42 Cal.3d

936; ~E v. Ci~W.O~ Lns Annelse (1974) 11 Cal.3d 113, 118.) However, 
under the specific circumstances o~ this case, ScientologF could 
not possibly have amended its complaint to s~a~e a ca'~se o~ 
action ~or damages Eor Yanny'a aliagad breach o~ duty, w:~ere 
Scientology had~ that it did~ base any claim ~pon any alleged 
disclosure o~ confidences, and that the existe:~ce or nonexistence 
o~ any such disclosures would be an issue in the case. In ruling 
on the motion ~or ~udgment on the ple~dings, the court could 
take Judicial notice o~ the sttpulatic~. (~v. Resolution Tr~st 
Ccr~. (1992) 4 Cal.App.4t~ 857, 877, and cases cited therein~ 
~v. Western ~acAr~h~r Co., ~, 192 Cal.App.3d at p. 955.) could 
any ~osSible amendant o~ the complaint have entitled Scientology 
to the broad injunction it sough~, for such ~elie~, as we have 
observed, was'be~nd the cour['s Jurisdiction.

~der these circumstances, the court did not abuse its discretion 
in entering Judgment on the pleadlngs wit~ut leave to amend.

	The Judgment is affirmed. Costs on appeal are awarded
	-to Yanny.

	~OT~_BE PUBLrS~

~OS~Y, Acting P. J.

We concu~=j

	HINZ, J.	KITCHING,


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