Judge: Gail Killefer, Case: 20STCV15371, Date: 2022-11-21 Tentative Ruling
Case Number: 20STCV15371 Hearing Date: November 21, 2022 Dept: 37
HEARING DATE: November 21, 2022
CASE NUMBER: 20STCV15371
CASE NAME: Edil Vazquez,
et al. v. Michael Olivieri, et al.
MOVING PARTIES: Plaintiffs, Edil Vazquez and
Steve Congalton
RESPONDING PARTY: Defendant, City of Pomona
TRIAL DATE: August 8, 2023
PROOF OF SERVICE: OK
MOTION: Plaintiffs’ Motion to Disqualify Liebert
Cassidy Whitmore as Defendant
City’s Counsel
OPPOSITION: November 7, 2022
REPLY: None as of
November 18, 2022.
Tentative: Plaintiffs’
motion to disqualify is denied. City is to give notice.
This action arises out of the employment of Plaintiffs Edil
Vazquez (“Vazquez”) and Steve Congalton (“Congalton”) as police officers with
Defendant City of Pomona (“City”). Plaintiffs’
Complaint also named as Defendants police chief Michael Olivieri (“Olivieri”)
and police captain Dennis Cooper (“Cooper”). Plaintiffs allege that both of
them participated in City’s promotional process but were not selected for the
promotions they sought due to Olivieri and the City’s alleged favoritism for
certain employees over others. Further, Plaintiffs allege that Olivieri engaged
in other forms of favoritism and nepotism during his employment as police
chief, allegedly socializing with certain employees but not others and
assigning unfavorable shifts to officers he did not like. Additionally,
Plaintiffs’ Complaint alleges that Cooper was part of Olivieri’s favored
employees, and that Cooper allegedly made false accusations against Plaintiff
such that they were prevented from receiving promotions and were subject to
negative treatment from Olivieri and other management at City.
On November 25, 2020, Plaintiffs filed their operative First
Amended Complaint (“FAC”). The FAC alleges the following causes of action: (1)
retaliation in violation of Labor Code § 1102.5 (against City), (2) violation
of rights protected under Government Code § 3300 (against City), (3)
intentional infliction of emotional distress (against Olivieri and Cooper), (4)
discrimination on the basis of race/national origin in violation of the Fair
Housing Employment Act (“FEA”) by Vazquez against City only), (5) failure to
prevent discrimination in violation of FEHA (by Vazquez against city only), (6)
declaratory relief (against City only).
On April 29, 2021, Defendant City’s demurrer was granted as
to the fourth and fifth causes of action.
On May 3, 2022, Defendant City’s motion for summary judgment
and/or summary adjudication against Congalton was denied as to the first and
second causes of action, and granted as to the sixth cause of action. (Minute
Order, May 3, 2022). On August 5, 2022, Defendant City’s motion for summary
judgment and/or summary adjudication against Plaintiff Vazquez was also granted
as to the sixth cause of action, and otherwise denied.
On July 29, 2022, Plaintiff Vasquez retired from the
City. On August 19, 2022, Plaintiff
Congalton dismissed his complaint with prejudice, having also retired from the
City.
Plaintiffs now move to disqualify Liebert Cassidy Whitmore
(“LCW”) from acting as counsel for Defendant City. City opposes the motion.
“The
trial court is vested with the power ‘[t]o control in furtherance of justice,
the conduct of its ministerial officers.’ That power includes the disqualifying of an
attorney.” (Henricksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th 109,
113 (Henricksen).) “Whether an attorney should be disqualified
is a matter addressed to the sound discretion of the trial court. [Citations.]
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.
[Citation.]” (Ibid.)
“[D]isqualification motions involve a conflict between the
clients’ right to counsel of their choice and the need to maintain ethical
standards of professional responsibility. [Citation.] The paramount concern must be to preserve
public trust in the scrupulous administration of justice and the integrity of
the bar. The important right to counsel
of one’s choice must yield to ethical considerations that affect the
fundamental principles of our judicial process.
[Citations.]” (Kennedy v. Eldridge (2011) 201
Cal.App.4th 1197, 1204 (Kennedy),
internal quotation marks omitted.)
“Where a former client seeks to have a previous attorney
disqualified from serving as counsel to a successive client in litigation
adverse to the interests of the first client, the governing test requires that
the client demonstrate a “substantial relationship” between the subjects of the
antecedent and current representations.” (Flatt
v. Superior Court (1994) 9 Cal.4th 275, 283.) Where a substantial
relationship can be demonstrated, disqualification of the attorney is
mandatory. (Id.) The “substantial
relationship” test asks whether, “by virtue of the nature of the former
representation or the relationship of the attorney to his former client
confidential information material to the current dispute would normally have
been imparted to the attorney.” (Global
Van Lines, Inc. v. Superior Court (1983) 144 Cal.App.3d 483, 489.) As such,
in determining whether to disqualify an attorney from representing a successive
client based on a former client’s request, courts must consider the “practical
consequences” of the attorney’s representation of the former client. (H. F. Ahmanson & Co. v. Salomon
Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1454.)
The court further notes “[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.) Instead, “[t]he discipline of lawyers in California is a function
reserved to the State Bar.” (Id.) “[D]isqualifiation 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.” (Id.)
Plaintiffs move to disqualify LCW, contending it
“acted on behalf of the City in the conflicting capacities of
advocate in a this [sic] civil case and as advisor in what is supposed
to be a neutral decision maker in the administrative proceedings and
investigations of misconduct,” and that Defendant 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, 2-3; citing Sabey v.
City of Pomona (2013) 215 Cal.App.4th 489, 497-498.)
“[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." (Graphic Process Co. v.
Superior Court, (1979) 95 Cal.App.3d 43, 52 n.5.)
As Plaintiffs here do not contend LCW has ever represented
either Plaintiff, and do not bring this motion on the basis of past representation,
the court can conclude there is no issue of conflict arising from any such
representations. Thus, the court, sua sponte, notes Plaintiffs’ motion “demands
judicial scrutiny” and “must be viewed as part of the tactics of an adversary
proceeding.” (Id.)
Plaintiffs contend LCW and Defendant City have a
longstanding working relationship. (Moussatche Decl. ¶¶3-4; Motion, 11-12.)
Plaintiffs further contend LCW has “manipulated” the Pitchess process
for discovery of records relating to peace officers, and have created “an
unconstitutional cloud over all administrative proceedings related to this case
which are constitutionally required under the due process clause to be fair and
impartial, and it has created an avenue for LCW to directly or indirectly have
contact with represented parties without consent or presence of counsel...”
(Motion, 8-10.)
Plaintiffs contend Defendant City has three “advantages” in
this litigation due to LCW’s representation:
(1) LCW is allegedly involved and controls the administrative
process, which it uses to “to control and direct investigations that could harm
the City’s position in the civil cases to protect their litigation strategy and
gain an unfair and unethical advantage in the litigation while at the same time
undermining the due process rights of police officers and the administrative
hearing;” (2) LCW’s involvement also advantages City by conducting “bad faith
investigations into Plaintiffs and other officers for the purpose of generating
evidence to undermine witnesses...;” and (3) LCW’s representation has allowed
“full access of all police personnel files” which has further allowed Defendant
City “to strategically control access to information,” including “which
documents are brought by the custodian of records” for review during a Pitchess
hearing. (Motion, 10.)
The court again here notes Plaintiffs’ conclusory
contentions are made before this court without any support or persuasive
authorities. First, the court notes Defendant City’s “Human Resources/Risk
Management Director’s” explicit attestation “that since the Sabey
decision was issued the City, to provide the appropriate level of due process
and to reduce liability exposure, uses only one law firm (Atkinson, Andelson,
Loya, Ruud & Romo) to serve as legal advisor to the City Council if a City
employee's administrative appeal of discipline comes before the Council.”
(Anderson Decl. ¶¶2-3.)
The court further notes the Declaration of Sonia Carvalho,
partner with the law firm of Best Best & Krieger LLP, and the acting City
Attorney for Defendant City, who also has attested
Declarant “not LCW,” “assisted the City in retaining a
third-party investigator to investigate allegations of misconduct made against
[Plaintiff Vazquez]. I am aware that during the course of the investigation,
misconduct by Steve Congalton was also uncovered. Since the investigation for
AIC 2021-074 was completed, I have been providing advice and counsel to the
City, including its Chief of Police, with respect to AIC 2021-074 and any
discipline that flowed from it. I am using Mr. Vazquez’s and Mr. Congalton’s
names herein because I understand that in the publicly filed MTD, Vazquez
disclosed that he and Congalton were the subjects of AIC 2021-074.” (Carvalho
Decl. ¶¶2-3.)
As such, Plaintiffs’ contentions and concerns over an
alleged unfair advantage regarding LCW’s unfair advantage in any alleged
involvement with administrative appeals or investigations are completely
unfounded and without merit.
In opposition, City further correctly explains that LCW
retained two private, third-party organizations to investigate claims made by
Plaintiffs, and generally “Steve Congalton, Chad Jensen, Michael Neaderbaomer,
William Knight, and Mark Medellin.” (Opposition, 6.) City further explains LCW
had no input or control over the findings of these investigations. (Opp., 7-8.)
Most importantly, City correctly explains Plaintiffs’ “incongruous argument”
boils down to the contention “that LCW must be disqualified because it obtained
information from its own client, the City, which may be helpful to the City’s
defense.” (Opp., 9; citing Neal v. Health Net, Inc. (2002) 100
Cal.App.4th 831, 843-844.) City also correctly contends that the Pitchess
statute “likewise do not bar the City from sharing peace officer personnel records
or the information therein... with LCW.” (Id; citing Michael v. Gates
(1995) 38 Cal.App.4th 737, 744.)
“As LCW had a right to review Vazquez’s peace officer
personnel records, it follows that it had the right to determine that they may
assist the City in its defense in this lawsuit (as well as Case No.
20STCV17625) and to bring Pitchess motions to use the records in litigation.
The premise of Vazquez’s argument is faulty, contrary to the law, and must be
rejected.” (Opp., 9.)
The court here further notes that Penal Code § 832.7(a)
provides: “[p]eace office or custodial officer personal records and records
maintained by any 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 and 1046 of the Evidence Code.”
As Defendant City has explained in its opposition, however,
discovery involves the inspection, production, and disclosure of documents and
materials to an adverse party, but caselaw has routinely shown us that an
attorney reviewing the records of their client are not part of the discovery
process. (Michael v. Gates (1995) 38 Cal.App.4th 737, 744.) As such, the
court disregards Plaintiffs’ curious contention that LCW would need to file a Pitchess
motion to review records of its own client.
Defendant City further explains Plaintiffs’ reliance on Sabey
v. City of Pomona (2013) 215 Cal.App.4th 489 to be unavailing. (Opposition,
10-11.) As Defendant explains, in Sabey, the same law firm, also LCW,
prosecuted Plaintiff’s appeal of termination, and was requested to “serve as
its legal advisor in connection with its role as final decision-maker in the
City’s discipline appeal process.” (Id.) As such, the court reasoned
there could be a potential conflict of interest when the partner “was in the
position of reviewing the result achieved by his fiduciary.” (Opp., 10; citing Sabey,
supra, 215 Cal.App.4th at 496.) “Here, there is no evidence that the City
retained LCW to prosecute Vazquez’s (or Congalton’s) administrative appeal, or
to serve as legal advisor to the City Council if those administrative appeals
ever got that far. Indeed, this point is entirely moot as both Vazquez and his
former co-plaintiff Congalton have retired from the City.” (Opp., 11.)
Given the foregoing, the court finds that disqualification
is not warranted in this instance. Here, Defendant’s opposition makes clear LCW
does not advocate a position on behalf of City and also consult and advise a
decision maker empowered to review the result of any such advocacy. As the City
clearly has specified that it uses an entirely different law firm as legal
advisor in personnel administrative appeals, and as LCW’s review of its
client’s own records are not discovery violations under any Pitchess
statutes, Plaintiffs have failed to show circumstances meriting
disqualification of LCW.
Accordingly, Plaintiffs’ motion to disqualify LCW is denied.
Conclusion
Plaintiffs’ motion to disqualify is denied. City is to give
notice.