Judge: Curtis A. Kin, Case: 24TRCP00102, Date: 2025-03-11 Tentative Ruling

Case Number: 24TRCP00102    Hearing Date: March 11, 2025    Dept: 86

MOTION TO REMOVE AND REPLACE

DEPUTY ATTORNEY GENERAL

WITH PRIVATE SECTOR ATTORNEY

Date:               3/11/25 (1:30 PM)

Case:                           Barbara Friedman v. Margaret Boyd, Chief ALJ for Director of CDSS et al. (24TRCP00102)

TENTATIVE RULING:

Petitioner Barbara Friedman’s Motion for an Order to Remove and Replace Deputy Attorney General Katherine Sims with a Private Sector Attorney is DENIED.

Petitioner seeks to replace Katherine Sims, the Deputy Attorney General (“DAG”) representing respondents Department of Social Services (“DSS”) and Margaret Boyd, Chief ALJ for Director of CDSS, with an attorney from the private sector. Petitioner argues that respondents are at an “unethical and unfair advantage” because they can draw from an “endless source of tax payer money” to defend against the writ petition. (Mtn. at 3.)

Petitioner essentially seeks to disqualify DAG Sims from the case. Petitioner is not a client of the California Attorney General’s Office (“AG”). A non-client may move to disqualify opposing counsel, but the non-client must satisfy “stringent standing requirements,” meaning “harm arising from a legally cognizable interest which is concrete and particularized, not hypothetical.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1358.) “[I]imposing a standing requirement for attorney disqualification motions protects against the strategic exploitation of the rules of ethics and guards against improper use of disqualification as a litigation tactic.” (Ibid.)

Petitioner here does not demonstrate any concrete or particularized harm arising from a legally cognizable interest. Petitioner contends that the AG has an unlimited amount of money from taxpayers to defend respondents. This is speculative. Also speculative is petitioner’s contention that this Court would somehow demonstrate favoritism toward the AG. In cases where the Attorney General’s Office represents a state agency, the agency wins or loses based on the merits of the particular case. Petitioner thus fails to demonstrate any concrete harm that would result if DAG Sims continues representing DSS. Indeed, petitioner concedes in the writ petition that the “extreme disadvantage” she purportedly faces due to the AG’s representation of DSS may be “real or imagined.” (Mtn. at 2.)

Petitioner argues that it is somehow unethical for the AG to represent DSS, a state agency. However, the Attorney General is required by statute to represent DSS. (Gov. Code § 11042(a) [“No state agency shall…contract with outside counsel for any purpose, unless the agency has first obtained the written consent of the Attorney General pursuant to Section 11040”].)

The AG may employ special counsel, but so doing is permissible under conditions set forth in Government Code § 19130(b)(3), (b)(5), or (b)(7)-(b)(10). (Gov. Code § 12520(b).) However, petitioner does not demonstrate that any of the cited subdivisions apply here. Subdivision (b)(3) allows employment of special counsel when the AG cannot perform the services at issue, i.e., legal representation, satisfactorily. Subdivision (b)(5) and (b)(7) applies when employment of special counsel is required to protect against a conflict of interest or, in the case of subdivision (b)(5), ensure independent and unbiased findings. Subdivision (b)(8) applies when the special counsel will provide support services in a location where the state cannot feasibly provide such services. Subdivision (b)(9) pertains to training courses. Subdivision (b)(10) applies when the required legal representation is of such an urgent, temporary, or occasional nature that the purpose of the representation would be frustrated by the delay under civil service.

Because petitioner does not show concrete harm from the AG’s representation of DSS or that the AG is subject to disqualification under statute, the motion is DENIED.