Assemi v. Assemi et al

Jarvis was a general partner’s action for partition by sale, and the plaintiff partner moved to disqualify the partnership’s attorney. The trial court ordered the attorney disqualified because the attorney lacked authority to represent the partnership in a company in an intra-company dispute. In affirming the disqualification order, the appellate court determined the applicable partnership agreement and partnerships laws did not resolve whether the representation was authorized. (Id. at pp. 135–139.)

The court turned to the “values and interests at stake in a disqualification motion” and concluded the trial court did not abuse its discretion in disqualifying Roscoe. (Id. at pp. 139, 144.) The Jarvis court found no abuse of discretion because James “raised legitimate points regarding Roscoe's duty of loyalty” to the partnership, James sought disqualification “immediately after the [p]artnership made its first appearance,” and there was no suggestion disqualification was sought “to delay the litigation.” (Id. at pp. 139, 142, 143.)

An organizational client acts through its “duly authorized directors, officers, employees, members, shareholders or other constituents overseeing the particular engagement.” (Rule 1.13(a); see also former rule 3-600 [organization acts “through its highest authorized officer, employee, body or constituent”].) “An organizational client can only act through individuals who are authorized to conduct its affairs” and it “is not within the lawyer's province to make decisions on behalf of the organization concerning policies and operations.” (Comment to Rule 1.13, Standard Codes, p. 11.) (Id. at pp. 139-140.)

Assemi here relies on the same Rule of Professional Conduct and asserts that Maricopa and Malakan lacked authority to retain the McCormick firm. To grant the motion the court would need to resolve in Assemi’s favor hotly disputed factual issues – specifically, the parties’ respective membership interests in Elevated Ag, and Assemi’s status as Manager of Elevated Ag.

Assemi contends that the McCormick firm was purportedly retained to represent the LLC by minority members who had no authority to act for the LLC. As such, he contends that the representation lacks authority and disqualification is required under Jarvis and Rule 1.13. The contention that Maricopa and Malakan do not hold enough interest in the LLC is based on plaintiff’s representation of their respective interests and initial contribution. Assemi contends that he holds a 73.4 percent membership and voting interest in Elevated Ag, and is also its sole Manager pursuant to a unanimously adopted resolution.

The court agrees with the opposition that the court cannot attempt to adjudicate the various membership interests and determine who has control of the LLC, prior to an adjudication on the merits of Assemi’s claims that are central to the action.

Assemi contends that the membership interests are as follows, after recalculation based on the parties’ initial contributions: Assemi: 73.4 percent; Maricopa: 5.1 percent; and the remainder to others. Defendants point out that the Operating Agreement sets the interest as follows: Kevin Assemi 45 percent; Jeremy Yurosek 5 percent; Devon Yurosek 5 percent; Malakan 5 percent; and Maricopa 40 percent. After Jeremy Yurosek and Devon Yurosek assigned their 5% interests to Maricopa, the percentage interests in 4

Elevated Ag were: (1) Maricopa 50%; (2) Assemi 45%; and (3) Malakan (5%). Plaintiff contends that the assignment is invalid; defendants contend it was valid and acknowledge and recognized on various occasions by plaintiff.

The Operating Agreement was amended in May of 2025 by Assemi at a meeting of members attended by Assemi only. Assemi gave notice of the meeting, specifying several matters to be addressed at the meeting. Reallocating the Percentage Interests was not one of the matters specified in the Notice. (See Farshid Decl., ¶ 22.) Defendants contend that any change to the Operating Agreement that would affect distributions to members required the prior written consent of the members (Operating Agreement § 3.3), as it is a “Major Decision” requiring prior written notification (§ 4.4) and unanimous consent (§ 9.3). Since written notification of this intended action was not given, and there was no unanimous consent, defendants contend that the actions taken at the 5/9/2025 meeting violate the Operating Agreement and are therefore ineffective.

Defendants contend that failure to make capital contributions (which is Assemi’s basis for reallocating the Percentage Interests) is addressed in § 2.2(b) of the Operating Agreement, and that the Agreement does not contain language allowing the members’ Percentage Interests to be reallocated pro rata at a later date, as Assemi purports to have done.

Granting the motion requires finding that Assemi is validly the only manager of Elevated Ag. Assemi contends that he was elevated to the position of sole manager in unanimous decision by all members, as confirmed on 4/1/2025. (Assemi Decl., ¶11 and Exh. G.) Defendants admit in the opposition that Assemi was made the manager of Elevated Ag on 4/2/2025 (Oppo. 8:28-9:1), but they contend that on 7/9/2025 Assemi was removed as manager and replaced with Farshid and Malakan. (Farshid Decl., at ¶5, Ex. A.) Thus, they contend that at the time the McCormick firm was hired in late 2025, Kevin Assemi was no longer the manager of Elevated Ag and the ownership remained Ag remained: (1) Maricopa: 50%; (2) Kevin: 45%; and (3) Malakan (5%).

The moving papers make clear that the motion depends on the resolution of these issues in Assemi’s favor: “[B]ased on the evidence of the members’ actual initial contributions “as shown on the books and records of the Company” under section 2.1 of the Elevated Ag Operating Agreement, as shown by the corrected General Ledger and the corrected Balance Sheet as provided by Maricopa (Assemi Decl., Exhs. C, D), Kevin Assemi holds a 73.4 percent membership and voting interest in Elevated Ag, and is also its sole Manager pursuant to a unanimously adopted Resolution. McCormick was not hired by Kevin Assemi as Elevated Ag’s duly authorized majority member and Manager, but rather, by Elevated Ag’s minority interest holder usurpers who seek to weaponize the LLC to gain unfair advantage.” (MPA 11:12-19.)

Given the disputes regarding Assemi’s status as Manager and the parties’ respective ownership interests, in summary judgment parlance, there are a slew of triable issues of material fact. The court could not grant summary judgment or adjudication on such a factual record, and the court will not disqualify counsel where these issues are disputed.

The reply brief shifts to an entirely new argument to avoid implications of the above. The reply essentially argues that even if Maricopa and Malakan did have the membership interests they claim, and Assemi was removed as Manager, defendants do not show a valid manager action authorizing the McCormick firm’s retention. Section 4.1(h) permits the managers to “employ . . . attorneys,” and this must be done at a meeting “by a majority,” or without a meeting only if “the Managers unanimously consent in writing to such action” (§ 4.2). Assemi contends that this did not happen, therefore the McCormick firm was hired without following the required procedure.

This is not argued in the moving papers. Section 4.1(h) of the Operating Agreement is not even cited in the moving papers. The court will not permit Assemi to advance in the reply and entirely new argument and basis for granting the motion. (See Maleti v. Wickers (2022) 82 Cal.App.5th 181, 228; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Accordingly, the court intends to deny the motion to disqualify the McCormick firm from representing Elevated Ag in this action.

Motion to Consolidate

The purpose of consolidation is to enhance trial court efficiency by avoiding unnecessary duplication of evidence and procedures, and to avoid the substantial danger of inconsistent adjudications. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.)

The party moving for consolidation must file a notice of motion in each of the pending lawsuits, while supporting papers are filed only in the lead (lower numbered) case. (Cal. Rules of Court, Rule 3.350(a).) All the moving party needs to show in its motion is that the issues in each case are basically the same, and that “economy and convenience” would be served by consolidation. (Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867.) The court has broad discretion to grant or deny the motion. (Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.)

“Unless otherwise provided in the order granting the motion to consolidate, the lowest numbered case in the consolidated case is the lead case.” (Cal. Rules of Court, rule 3.350(b), emphasis added.)

Defendants concede that case no. 25CECG04664 should be consolidated with the earlier-filed case no. 23CECG05154, but that 25CECG04664 should be the lead case because it is further along and 23CECG05154 is relatively dormant. The court disagrees. 23CECG05154 has been quite active, and has been anything but dormant. Defendants essentially concede that the claim set forth in 23CECG05154 could have been filed in 25CECG04664, but Maricopa elected to file a separate action.

Defendants rely heavily on the fact that Assemi’s ex parte application for TRO relating to the deed of trust was filed in 23CECG05154, but was not heard in Department 403 by Judge Gamoian. Instead it was heard and denied in Department 501 by Judge Tharpe. 25CECG04664 is assigned to Judge D. Tyler Tharpe. However, any argument that making 25CECG04664 the lead case would promote continuity is destroyed by the fact that Judge Tharpe is retiring and will not be in his current Department 501 assignment effective 6/15/2026. The case will not stay with Judge Tharpe even if 25CECG04664 were 6

made the lead case. Judicial economy and efficiency will be best serve by making 23CECG05154 the lead case. There being no reason to stray from the general rule that the earlier-filed case should be the lead case, the motion will be granted with 23CECG05154 designated as the lead case.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: lmg on 5-8-26. (Judge’s initials) (Date)

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