Judge Elaine Lu, Case 20STCV17625 2022-08-09 Tentative Ruling

On May 8, 2020, plaintiffs Chad Jensen (“Jensen”) and Michael Neaderbaomer (“Neaderbaomer”) (jointly “Plaintiffs”) filed the instant action against defendants City of Pomona (“City”), Michael Olivieri (“Olivieri”), and Dennis Cooper (“Cooper”) arising out of their employment with City. The original complaint asserted four causes of action for: (1) Retaliation in Violation of Labor Code § 1102.5, (2) Retaliation for the Exercise of Rights in violation of § 3304, (3) Intentional Infliction of Emotional Distress, and (4) Declaratory Relief. On October 15, 2020, the Court sustained Defendants City’s, Cooper’s, and Olivieri’s demurrers to the complaint with leave to amend. (Order 10/15/20.)

On June 17, 2022, the Court granted City’s request to vacate the July 11, 2022 trial date so that City could bring a Pitchess motion, and the City could hear the Pitchess motion prior to trial. (Minute Order 6/17/22.) On June 17, 2022, City filed its Pitchess motion. On June 30, 2022, trial was re-set for August 21, 2023, with discovery following the new trial date. (Minute Order 6/30/22.)

On June 30, 2022, after the trial setting conference, Plaintiffs filed the instant motion to disqualify Defendant’s Counsel. On July 27, 2022, City filed an opposition. On August 2, 2022, Plaintiffs filed a reply.

On October 25, 2017, Plaintiffs were indicted on federal charges stemming from a use of force incident at the 2015 Los Angeles County Fair (“Incident”). (FAC ¶ 11.) On December 22, 2017, Olivieri became interim Chief of Police for the Pomona Police Department and was officially designated Chief of Police on February 27, 2018. (FAC ¶ 12.)

On January 25, 2019, a jury acquitted Plaintiff Jensen on all charges in federal court, and Olivieri reinstated Plaintiff on January 29, 2019, but Plaintiff was given no duties. (FAC ¶¶ 16, 19.) On February 9, 2019, Plaintiff Jensen met with Olivieri and the Internal Affairs Lieutenant Cooper, who informed Jensen that he could not engage in any law enforcement activities, could not work any overtime, and was not allowed to work in public until the Internal Affairs investigation was completed. (FAC ¶¶ 19-20.) Further, Plaintiff Jensen emailed Captain Hsu requesting to work background investigation at the Training Bureau, but his request was denied. Captain Hsu told Plaintiff that he did not see a reason to deny the request, but “The Chief is the Chief.” (FAC ¶ 21.)

Plaintiff Jensen was assigned to administrative tasks such as moving furniture and cleaning offices from January 29 to August 5, 2019. (FAC ¶ 22.) On June 27, 2019, Plaintiff Jensen was issued a 2-day off work discipline by command staff due to the Internal Affairs Investigation of the Incident, which revealed no new facts from the federal case in which Jensen was acquitted. (FAC ¶ 27.) Shortly after the Notice of Intent to Discipline, Olivieri asked a member of the Pomona Police Officers’ Association Board to advise Plaintiff Jensen to request a Skelly hearing (administrative appeal process) for his discipline directly to Olivieri so that Olivieri could delay and stall the investigation 18 to 24 months. (FAC ¶ 30.) Instead, Plaintiff Jensen requested that the City Manager hear his Skelly hearing, where the discipline was reversed. (FAC ¶ 33.)

On October 17, 2019, Plaintiff Jensen was passed over for two Sergeant promotions, despite being the most qualified corporal. (FAC ¶¶ 37-38.) When asked why Olivieri did not promote Plaintiff Jensen, Olivieri stated that “it’s just not a good time for him right now because of how it could be perceived and how it could impact his career.” (FAC ¶ 39.) Olivieri did not want to promote Plaintiff Jensen because it would raise the Incident again. Olivieri made comments that he could not promote Jensen until Olivieri was out the door so he could do a “Hit & Run Promotion.” (FAC ¶ 36.)

Similarly, on April 3, 2019, Plaintiff Neaderbaomer was acquitted of some charges by a federal jury, and the balance of charges were dismissed. On April 9, 2019, Neaderbaomer was reinstated by Olivieri. (FAC ¶ 16.) Olivieri and Deputy Chief Hector Rodriguez informed Neaderbaomer that he was reinstated as a Police Sergeant but was not allowed to work in public, work overtime, or engage in any law enforcement activities until the Internal Affairs investigation was completed after the Jensen Internal Affairs Investigation. (FAC ¶¶ 43(2)-44(2).)[2] For two months, between April 9, 2019 and June 9, 2019, Plaintiff Neaderbaomer was relegated to similar administrative duties. (FAC ¶ 44(2).) Neaderbaomer was relegated to less desirable shifts. (FAC ¶ 57.) On September 26, 2019, Neaderbaomer notified the HR Director, who told Olivieri, that he filed a claim for damages with the Department of Justice regarding the indictment, arrest and trial. (FAC¶ 58.) On October 15, 2019, Neaderbaomer was notified that he was exonerated of all allegations in the internal investigation. (FAC ¶ 60.)

“On October 17, 2019 OLIVIERI passed NEADERBAOMER over for two Lieutenant promotions even though the Internal Affairs investigation had been completed and NEADERBAOMER was exonerated in it and he was the most qualified applicant. During 2018 while NEADERBAOMER was out on administrative leave, OLIVIERI passed NEADERBAOMER over for three lieutenant promotions.” (FAC ¶ 62.) When asked why, Olivieri responded, "How would it look to the Department of Justice if I promoted you to Lieutenant.” (FAC ¶ 68.)

Code of Civil Procedure section 128, subdivision (a)(5) authorizes the Court “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.”

This authority necessarily includes disqualifying an attorney. (Metro-Goldwyn Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1837–1838.)

The issue of disqualification ultimately involves a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern, though, must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar. The recognized and important right to counsel of one's choosing must yield to considerations of ethics that run to the very integrity of our judicial process.

“Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court.” (Henriksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th 109, 113.) “In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand.” (Ibid.)

Additionally, a party may bring a motion requesting that the court remove an opposing attorney from representing a client. (See, e.g., In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561.) “[N]o California case has held that only a client or former client may bring a disqualification motion.” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204.) Federal courts generally limit standing to bring disqualification motions to clients or former clients, but California courts permit a nonclient to meet standing requirements to bring a motion to disqualify based on a third-party conflict of interest or other ethical violation. (Ibid.)

However, “[the courts] do not disqualify a lawyer from representing a client to punish the lawyer's mistakes or even bad behavior.” (City of San Diego v. Superior Court (2018) 30 Cal.App.5th 457, 470.) Rather, “[t]he discipline of lawyers in California is a function reserved to the State Bar.” (Ibid.) “[D]isqualification of counsel is a prophylactic remedy designed to mitigate the unfair advantage a party might otherwise obtain if the lawyer were allowed to continue representing the client.” (Ibid.)

Plaintiffs move to disqualify Defense Counsel, Liebert Cassidy Whitmore (“LCW”), on the basis that LCW “acted on behalf of the City in the conflicting capacities of advocate in a contested matter and advisor in what is supposed to be neutral decision maker in related matter, such as administrative proceeding and investigations of misconduct (See Sabey v. City of Pomona (2013) 215 Cal.App.4th 489, 497- 498.” (Motion at p.2:7-11.) In addition, Plaintiffs contend that “[t]he City has violated the constitutional due process rights of the Plaintiffs in administrative investigations, and Pitchess confidentialities by allowing their Pitchess protected files to be used to the City’s advantage in litigation to the undue detriment and irreparable disadvantage to the disadvantage of Plaintiffs in this case.” (Motion at p.2:15-18.)

For the reasons that follow, the Court finds that neither the Pitchess statutory scheme nor the holding of Sabey supports disqualification of LCW here.

“ ‘[I]n cases that do not involve past representation (conflict cases) the attempt by an opposing party to disqualify the other side's lawyer must be viewed as part of the tactics of an adversary proceeding. As such it demands judicial scrutiny to prevent literalism from possibly overcoming substantial justice to the parties.’ [Citation.]” (Graphic Process Co. v. Superior Court (1979) 95 Cal.App.3d 43, 52, Fn. 5, [bold and italics added].)

Here, Plaintiffs do not contend that LCW has ever represented either Plaintiff. There is no conflict arising out of past representation. Pursuant to Graphic Process Co. v. Superior Court, the instant motion must be viewed as a tactical decision on the part of Plaintiffs and with judicial scrutiny.

In support of the instant motion, Plaintiffs cite to evidence that the City and LCW have a long history of working together with LCW serving as the City’s labor counsel. (See Moussatche Decl. ¶ 3, Exh. 3 [Contract between City and LCW]; see also Sabey, supra, 215 Cal.App.4th 489 [involving LCW’s representation of City as labor counsel in 2010].)

On January 30, 2020 – before Plaintiffs filed the instant action -- “LCW, on behalf of the City, retained PII to investigate personnel complaints and Government Claims that were submitted to the City in December 2019 by Plaintiffs Jensen and Neaderbaomer[.]” (Tala Decl. ¶ 7, Exh. 4, [January 30, 2020, Scope of Investigation Letter].) “On September 17, 2020, Neaderbaomer filed another personnel complaint alleging misconduct by another officer. Less than a month later, on October 14, 2020, the City retained Jeffry L. Johnson, Esq. of JL Group, LLC, to investigate Neaderbaomer’s September 17, 2020 complaint.” (Tala Decl. ¶ 10, Exh. 7 [October 14, 2020, Scope of Investigation Letter].) Jeffrey Johnson, who investigated Plaintiff Neaderbaomer’s allegations, stated in deposition for the instant action that he spoke with Geoffrey S. Sheldon, Esq. of LCW “just to make sure [Johnson and his firm] were following the proper scope and adhering to kind of the guidelines that outlined our - our independent investigation in another matter.” (Moussatche Decl. ¶ 1, Exh. 1 [Johnson Depo. at pp.9:6-19, 10:21-24].) Similarly, Barbara Dalton, who also investigated Plaintiffs’ claims, testified at her deposition for the instant action that she spoke with Geoffrey S. Sheldon, Esq. of LCW but that LCW did not make any substantive changes to her reports and received comments back only regarding the formatting of the report. (Moussatche Decl. ¶ 5, Exh. 5 [Dalton Depo. at pp. 16:20-17:23, 106:17-107:2, 107:5-21].)

Plaintiffs contend that based on LCW’s tangential involvement in helping City retain two other firms to investigate Plaintiffs’ allegations, LCW has received improper access to documents that it would otherwise not have been able to access. Specifically, Defendants filed a Pitchess motion on June 17, 2022 seeking to obtain documents relating to the investigation of a September 2021 incident that allegedly impacts the credibility of two police officers who are expected to be called by Plaintiffs as “me too” witness, Edil Vazquez and Steve Congalton. Plaintiffs’ counsel represents Vazquez and Congalton in a separate action against City, Los Angeles Superior Court Case No. 20STCV15371. (See Pitchess Motion filed 6/17/22; Carvalho Decl. ¶ 3.) Plaintiffs claim that:

Had the City not had the same counsel conducting administrative investigations and being privy to the information and defending them in this litigation in violation of due process rights, the attorney for the City would have been unable to know any administrative investigation existed.

Additionally, even if agency management were to have been aware of this investigation, they would not have been able to disclose such information without violating Pitchess confidentiality protections through their counsel who provided the declaration in the Pitchess Motion. This is clearly the City benefitting from having the same counsel in the administrative settings and litigation. This conflict of interest undermines the due process protection of the administrative investigation and confers an unfair benefit and advantage in the litigation to the City.

Plaintiffs’ arguments are without merit. Pursuant to Penal Code section 832.7, “the personnel records of peace officers and custodial officers and records maintained by a state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043…” (Pen. Code, § 832.7(a), [italics added].) Evidence Code section 1043 applies to “any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records[.]” (Evid. Code, § 1043(a), [italics added].) By the plain language of these statutes setting forth the Pitchess statutory scheme, a Pitchess motion is required when a party seeks discovery or disclosure of peace officer records.

“In ordinary legal usage, ‘discovery’ refers to the inspection of documents and other materials in the possession or control of an adverse party in litigation, a process which has as its principle purpose the elimination of the ‘game’ element of litigation.” (Michael v. Gates (1995) 38 Cal.App.4th 737, 744.) Accordingly, “[a]n agency which reviews its own records with its attorney has not engaged in discovery.” (Michael v. Gates (1995) 38 Cal.App.4th 737, 744.) Thus, contrary to Plaintiffs’ assertions, it was unnecessary for the City to file a Pitchess motion or to obtain a court order before allowing LCW – the City’s attorneys of record – to conduct a preliminary review of the City’s peace officer records. Instead, the Pitchess motion is required for the purpose of allowing disclosure of the City’s peace officer records to Plaintiffs and use of the City’s peace officer records as evidence at trial in the instant action.

Given that LCW may freely obtain such information from its client, the City, LCW nothing precluded the City from informing LCW of any peace officer records that City believed would be useful in litigating the instant action. Plaintiffs have failed to identify any conflict of interest or unfair advantage that the City has derived from its representation by LCW, who was at most only tangentially involved in the administrative proceedings.

In addition, Plaintiffs’ reliance on Sabey v. City of Pomona (2013) 215 Cal.App.4th 489 is misplaced. In Sabey, the Court of Appeal reversed the trial court’s denial of a writ of petition filed by Glenn Sabey, a police officer who was fighting his termination from employment from City. (Sabey, supra, 215 Cal.App.4th at p.492.) The City’s Police Department Internal Affairs Office investigated Sabey and found that he violated various Department policies and procedures. (Id. at pp.493-494.) Sabey received a notice of intent to terminate his employment due to violations of the Department's policies and procedures. (Id. at p.494.) After two Skelly hearings, the Police Chief recommended termination, which recommendation the City Manager followed. (Ibid.)

Pursuant to a memorandum of understanding between the City and the City of Pomona, Police Officers Association, Sabey requested an advisory arbitration to determine whether he was properly discharged by the Department for cause. (Ibid.) In that advisory arbitration, a partner of LCW, Debra L. Bray, represented the City. (Id. at p.494.) The arbitrator sustained most of the findings made by internal affairs. However, the arbitrator’s award provided that Sabey's termination should be converted into a suspension without pay or benefits. (Ibid.)

The City Council received the arbitrator’s advisory opinion and award. In determining whether to adopt or reject the arbitrator’s opinion and award, the City Council requested that another partner of LCW – Peter Brown – serve as the City Council’s legal advisor. (Ibid.) “At that point, LCW implemented an ethical wall between Bray and Brown. They did not talk to each other about the Sabey matter, and they were prevented from accessing each other's files.” (Ibid.)

Sabey objected to attorneys from the same firm acting as an advocate for the Police Department in the arbitration and also as a legal advisor to the City Council for purposes of the City Council’s review of the arbitrator’s findings. Nonetheless, LCW partner Brown met with the City Council in closed session. (Id. at p.494.) A few days later, “the City Council rendered a decision that adopted the arbitrator's factual findings but rejected the recommendation that Sabey's termination be converted into a suspension without pay or benefits. As a result, Sabey's termination from employment was made final.” (Ibid.)

Sabey filed a petition asserting that allowing LCW to serve as an advocate in the arbitration and as a legal advisor in the review of the results of that arbitration resulted in a denial of due process. (Id. at p.495.) The Court of Appeal agreed, noting that “[w]hen ‘an administrative agency conducts adjudicative proceedings, the constitutional guarantee of due process of law requires a fair tribunal.’ [Citation.]” (Ibid.) The Court of Appeal further noted that “[c]ase law establishes that an attorney cannot act as both an advocate for an agency and then as an advisor to the decision maker who reviews the result that the advocate achieved.” (Ibid.) The Court of Appeal concluded that “[a]s a partner in LCW, Brown owed both Bray and LCW the fiduciary duties of loyalty and care. (9 Witkin, Summary of Cal. Law (10th ed. 2005) Partnership, § 30, pp. 604–606.) Consequently, when Brown advised the City Council, he was in the position of reviewing the result achieved by his fiduciary. In our view, this creates an appearance of unfairness and bias.” (Id. at p. 496.)

Sabey is inapposite to the instant case because the facts of Sabey are completely distinguishable. The only overlapping facts between the instant action and Sabey are that the two cases involve the same defendant City and the same law firm LCW. Critically, the roles that LCW has played in the two actions are different. In the instant action – unlike in Sabey – attorneys from LCW are not serving as both an advocate and legal advisor to a decision maker reviewing the outcome of that advocacy. As City’s Human Resources/Risk Management Director notes, since the Court of Appeal’s opinion in Sabey, the City has used a different law firm – Atkinson, Andelson, Loya, Ruud & Romo – as legal advisor to the City Council for employee’s administrative appeals. (Matthews Decl. ¶ 3.)

Thus, Plaintiffs fail to present a basis warranting disqualification of City’s counsel LCW.

Based on the foregoing, Plaintiffs Chad Jensen and Michael Neaderbaomer’s motion to disqualify Defense Counsel is DENIED.

[1] On April 16, 2021, the Court sustained Olivieri’s and Cooper’s demurrers to the third cause of action without leave to amend, granted Cooper’s motion to strike, and entered an order of dismissal as to Olivieri and Cooper. (Order 4/16/21.) As to the City, the Court overruled the demurrers as to the second and third causes of action and denied the motion to strike. (Order 4/16/21.) On May 7, 2021, the Court sustained the demurrer to the fourth cause of action without leave to amend. (Order 5/7/21.) On May 24, 2021, the Court entered a judgment of dismissal of Defendants Olivieri and Cooper. (Judgments of Dismissal filed 5/24/21.)

[2] The Court notes that the FAC has two paragraphs 42, 43, 44, and 45. The Court will refer to the second of these respective paragraphs with the addition of a “(2)” after the paragraph number.

Superior Court of California

County of Los Angeles

Department 26