Zizzo v. Super. Ct.
Filed 1/28/13 Zizzo
v. Super. Ct. CA4.1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
LAURA ZIZZO,
Petitioner,
v.
THE SUPERIOR COURT OF SAN DIEGO
COUNTY,
Respondent;
D062255
(San Diego County
Super. Ct. No. 37-2012-00090446-
CU-OE-CTL)
CITY OF SAN DIEGO,
Real Party in Interest.
STACEE BOTSFORD,
Petitioner,
v.
THE SUPERIOR COURT OF SAN DIEGO
COUNTY,
Respondent;
D062467
(San Diego County
Super. Ct. No. 37-2011-00099876-
CU-OE-CTL)
CITY OF SAN DIEGO,
Real Party in Interest.
Consolidated
proceedings in mandate after the superior court disqualified counsel. Joel M. Pressman, Steven R. Denton,
Judges. Petitions denied.
In these
consolidated petitions for writ of mandate, petitioners Laura Zizzo and Stacee
Botsford, both detectives for the San Diego Police Department (Department),
contend the superior court abused its discretion by disqualifying their
attorneys, former San Diego deputy city attorneys who had previously
represented Department in employment-related litigation. One of the attorneys, Carol Leimbach, had gone
on to work for Department as its equal employment opportunity (EEO) program
manager for an approximately five-year period, and the other, Mark Stiffler,
had associated in as Leimbach's cocounsel for purposes of petitioners' present
superior court law suits. In part,
petitioners maintain the information obtained by Leimbach and Stiffler during
their prior representation of Department was not material to petitioners'
claims in the present litigation that the chief of police and real party in
interest, City of
(City), failed to take all reasonable steps to prevent sexual harassment in the
workplace from occurring (Gov. Code,
§ 12940, subds. (k), (j)(1)) and City did not show sufficient similarity
in factual and legal elements between the past and present representations to
warrant their disqualification.
We conclude
City's showing warrants attorney Leimbach's disqualification in both
actions. We further conclude that
attorney Stiffler is vicariously disqualified due to his association as
Leimbach's cocounsel. Accordingly, we
deny the writ petitions.
FACTUAL AND
PROCEDURAL BACKGROUND
In late
2011 and early 2012, Botsford and Zizzo separately filed verified complaints
alleging, among other causes of action,
that City and then Chief of Police William Landsdowne failed to take all
reasonable steps to prevent sexual harassment in the workplace from
occurring. Zizzo and Botsford were
represented by Leimbach of the Law Offices of Carol Liembach.
In both cases,
City moved to disqualify Leimbach and Stiffler on grounds that as former deputy
city attorneys who had handled sexual
harassment and discrimination claims brought against Department, they had a
prior relationship with City on matters having a substantial relationship to
those for which they represented petitioners.
Specifically, City argued that due to petitioners' claims that City had
failed to take reasonable steps to prevent harassment under section 12940,
subdivisions (j) and (k), they could not be represented by Leimbach, who had
been Department's EEO program manager and the "architect" of
Department's EEO policies and procedures, or any other attorney who had
regularly defended Department in discrimination cases, because those attorneys
had analyzed what Department did to prevent discrimination and harassment from
occurring. According to City, the legal
issues involved in the attorneys' prior representation were identical. It asserted that because Leimbach was an
expert on Department's policies, personally advised and trained on those
policies, and also possessed insider information about Department's "
'strengths, weaknesses, or strategy' " in that area, she was disqualified
from representing Zizzo despite the 10-year passage of time from her prior
representation. It argued Stiffler was
likewise disqualified by virtue of his having "necessarily consulted with
management as to the defense of taking reasonable steps" and having
similar insider information concerning the policies and their strengths,
weaknesses or strategy.
City
accompanied its motions with Leimbach's declaration on an unrelated issue in
the Botsford action, in which
Leimbach stated she was a deputy city attorney for City from 1985 to 1994, had
handled "numerous" employment litigation cases brought against
Department including sexual harassment and discrimination cases, and had served
as Department's EEO Manager between 1996 and 2001. Leimbach asserted she "established a
comprehensive employment discrimination training and harassment prevention
program while employed with the [Department]" but had not worked with City
in any capacity for over 10 years, did not take any confidential information
with her when she left Department, and was not in possession of any
confidential information obtained during the course and scope of her employment
with City. Leimbach averred that
Stiffler was a deputy city attorney for City from 1986 to 2007 and also handled
numerous employment litigation cases including sexual harassment and
discrimination cases against Department.
She averred that Stiffler worked on a temporary basis for the criminal
division of the city attorney's office in 2011, but did not work in the civil
litigation division nor was involved in any civil matters. Leimbach stated she was "informed and
believe that Mr. Stiffler is not in possession of any confidential information
obtained during the course and scope of his employment with City."
City also
submitted the declaration of Assistant Police Chief Boyd Long, whose duties
included directly supervising Department's EEO managers for each area command,
and who served as the police chief's hearing officer on discipline appeals,
including for EEO violations. He stated
that from 1998 to 2000, while a detective sergeant assigned to Department's EEO
unit, he was responsible for conducting EEO training for Department staff,
officers and recruits; formal and informal investigations into allegations of
violations of Department's EEO policies and procedures; and mediations between
employees. In that role, he worked
closely with Leimbach, who was a Department manager; a civilian position that
was the "functional equivalent of a Commanding Officer." According to Long, Leimbach did a "major
overhaul" of Department's EEO policies and procedures, and could
"fairly be considered the 'architect' or 'creator' " of the majority
of those policies and procedures. Long
stated the "vast majority" of the current EEO policies and procedures
were in effect during the period covered by the allegations of the Zizzo and
Botsford complaints and were prepared by Leimbach. Long also stated that Leimbach was
instrumental in the formulation of Department policies and strategies for
taking all reasonable steps to prevent discrimination and harassment, and
during her tenure supervised Department investigators who dealt with all
Department employee discrimination, harassment, and retaliation claims. He averred, "In addition to that, Ms.
Leimbach was often involved in the defense of claims of that nature brought
against [Department] employees. [¶] . . . Virtually anything I did to ensure that
the Department was taking all reasonable steps to prevent discrimination and
harassment from occurring I did in consultation with, or under the supervision
of, Carol Leimbach. And the whole idea
behind the EEO policies she instituted and supervised was to ensure that the
[D]epartment did all that it could to prevent discrimination and harassment." Long stated he considered his conversations
with Leimbach to be confidential and protected by the attorney-client
privilege, and believed she was given her job because Department relied on her
skill and experience as an attorney.
In
opposition, petitioners argued the disputed issues in their cases were merely
whether City had violated section 12940, and whether Department "
designed to prevent and remedy harassment." They pointed out the policies themselves were
not confidential, and asserted further that City had not identified any
confidential information Leimbach possessed or demonstrated how any information
would prejudice its defense. In a sworn
declaration, Leimbach admitted that as EEO manager, she had "instructed
[Department] employees, including management, in the nuances of EEO
law." However, Leimbach stated she
was not hired by Department as an attorney, did not act as a legal advisor to
Department, had not rendered legal advice or decisions on specific employment
cases, and had been on inactive status with the California State Bar while EEO
manager. Leimbach stated that "[a]s
EEO manager, I always consulted with 'Police Legal Advisors' when legal issues
were identified during the course of my duties" and "[i]n turn, the
legal advisors rendered any legal decisions in the defense of claims brought
against [Department] employees."
According to Leimbach, she had merely updated the EEO policies to
conform to state and federal law. She
stated she did not know Zizzo or Botsford while she was EEO manager and was not
involved in any of the substantive issues or privy to any confidential
information relevant to their cases.
In the
disqualification motion with a declaration stating he did not believe he was
involved with any lawsuit having claims of sexual harassment brought against
Department or any of Department's employees.
He denied ever defending Department or its employees in any lawsuit
involving an allegation of failure to prevent harassment or discrimination. He stated he had never met nor spoken with
Chief Landsdowne. In
"understanding" that since she left Department, the organization had
"totally restructured the handling of EEO claims," and she was never
a part of that restructuring. City
objected and moved to strike Leimbach's statement on numerous grounds,
including lack of foundation and personal knowledge. It also objected to Stiffler's declaration,
asserting it was untimely filed, contradicted Leimbach's prior judicial
admissions, and was contrary to judicially noticeable facts showing Stiffler
was identified as counsel of record for Department in two different
discrimination lawsuits.
The trial
court in Zizzo's action (Hon. Joel M. Pressman) heard argument on the matter
and granted City's motion. It ruled
Leimbach's and Stiffler's disqualification as Zizzo's counsel of record was
warranted under its "discretionary power." The order states in part: "The evidence shows that a substantial
relationship exists in that both Ms. Leimbach and Mr. Stiffler handled numerous
employment litigation cases, including sexual harassment and discrimination
cases brought against [Department] . . . where they addressed the steps the
[Department] took as part of its policies and procedures to prevent harassment
and discrimination from occurring. The
Court concludes that no exception to the substantial relationship test applies,
and counsel is precluded from continuing in the representation." The court found the legal issues were
identical. Citing Brand v. 20th Century Ins. Co. (2004) 124 Cal.App.4th 594 (
and Mark Stiffler, acts as a subject matter expert in a particular area, the
rule prohibits disclosure even after the passage of a significant amount of
time."
In
Botsford's action, the trial court (Hon. Steven R. Denton) likewise granted
City's motion. In part, it ruled: "Attorney Leimbach's representation of
[Botsford] relates directly to [Leimbach's] work as the Equal Opportunity
Program Manager for [Department]. She
was intimately involved in drafting and advising [Department] on the
development of the discrimination and sexual harassment policies that are the
subject of the second cause of action.
This is a substantial relationship such that the access to confidential
information is presumed." Rejecting
the credibility of attorney Stiffler's declaration, the court ruled Stiffler
was vicariously disqualified due to his cocounsel relationship with
Leimbach.
Zizzo
unsuccessfully moved for reconsideration of the trial court's ruling as to
attorney Stiffler. Both she and Botsford
thereafter filed the writ petitions at issue.
We issued an order to show cause and an order consolidating the writ
petitions.
DISCUSSION
I. Propriety of Relief by Writ of Mandate
A court has
authority to issue a writ of mandate to an inferior court "to compel the
admission of a party to the use and enjoyment of a right or office to which the
party is entitled, and from which the party is unlawfully precluded by that
inferior tribunal . . . ." (Code Civ. Proc., § 1085, subd.
(a).) An order granting an attorney disqualification motion is both
directly appealable and reviewable by writ petition in the reviewing court's
discretion. (Sharp v. Next Entertainment (2008) 163 Cal.App.4th 410, 424;
126 Cal.App.4th 1253, 1263-1264.)
Because the trial court's order deprives petitioners of the important
right to counsel of their choice (see People ex rel. Dept. of Corporations
v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee
Oil)), mandate is an
appropriate remedy to restore the right if the disqualification is
improper. " 'The specter of
disqualification of counsel should not be allowed to hover over the proceedings
for an extended period of time for an appeal.' " (Apple
Computer, at p. 1264.)
II. Standard of Review
In general,
appellate courts review for abuse of discretion a trial court's decision on a
motion to disqualify counsel. (City
and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839,
848 (Cobra Solutions); SpeeDee Oil, supra, 20 Cal.4th at p.
1143.) " 'If the trial court resolved disputed factual issues, the
reviewing court should not substitute its judgment for the trial court's
express or implied findings supported by substantial evidence. [Citations.]
When substantial evidence supports the trial court's factual findings,
the appellate court reviews the conclusions based on those findings for abuse
of discretion.' " (
145, 159.)
Our
assessment of the evidence presented in support of and opposition to City's
disqualification motion is governed by basic appellate principles: " ' "In viewing the evidence, we
look only to the evidence supporting the prevailing party. [Citation.]
We discard evidence unfavorable to the prevailing party as not having
sufficient verity to be accepted by the trier of fact. [Citation.]
Where the trial court has drawn reasonable inferences from the evidence,
we have no power to draw different inferences, even though different inferences
may also be reasonable." [Citations.] We presume the trial court found for the
prevailing party on all disputed factual issues.' " (Orange County Water Dist. v. The Arnold
Engineering Co. (2011) 196 Cal.App.4th 1110, 1116-1117; see
Cal.App.4th 1197, 1203; Ochoa v. Fordel (2007)
146 Cal.App.4th 898, 906 [resolution of factual issues arising from competing
declarations is conclusive on the reviewing court, and conflicts in the
declarations are resolved in favor of the prevailing party].) "[W]here there are no material disputed
factual issues, the appellate court reviews the trial court's determination as
a question of law." (Cobra Solutions, supra, 38 Cal.4th at p. 848.)
The trial
court's exercise of its discretion is subject to reversal when there is no
reasonable basis for the action or fails to comply with applicable legal
standards. (Orange County Water Dist. v. The Arnold Engineering Co., supra, 196 Cal.App.4th at p.
1117; In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572,
585.) For example, when the court's exercise of discretion is based on a
legal error, i.e., a determination that a conflict of interest existed when the
circumstances did not constitute a conflict of interest, the court's order is
not entitled to deference. (
175 Cal.App.4th 1414, 1420.) " 'In
any event, a disqualification motion involves concerns that justify careful
review of the trial court's exercise of discretion.' " (Orange
County Water Dist., at p. 1117.)
III. Legal
Principles Relating to Disqualification
A.
Every court
is granted the inherent authority to disqualify an attorney " '[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 . . . .' " (SpeeDee Oil, supra, 20 Cal.4th at p.
1145, citing Code Civ. Proc., § 128, subd. (a)(5).)
A judge's
inherent power in this respect " 'is frequently exercised on a showing
that disqualification is required under professional standards governing
avoidance of conflicts of interest or potential adverse use of confidential
information.' [Citation.] [¶]
'Motions to disqualify counsel present competing policy considerations. On the one hand, a court must not hesitate to
disqualify an
attorney when it is satisfactorily established that he or she wrongfully
acquired an unfair advantage that undermines the integrity of the judicial
process and will have a
proceedings before the court.
[Citations.] On the other hand,
it must be kept in mind that disqualification usually imposes a substantial
hardship on the disqualified attorney's innocent client, who must bear the
monetary and other costs of finding a replacement. A client deprived of the attorney of his [or
her] choice suffers a particularly heavy penalty where . . . his [or her]
attorney is highly skilled in the relevant area of the law.' [Citation.]
[¶]
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.' " (
145 Cal.App.4th 453, 462-463 (Oaks
Management).)
Under these
principles, "disqualification may be
proper when . . . an attorney-client relationship is not at issue. . . .
'Professional responsibilities do not turn on whether a member of the
State Bar acts as a lawyer. "One
who is licensed to practice as an attorney in this state must conform to the
professional standards in whatever capacity he [or she] may be acting in a
particular matter." ' " (
Corporation v. Superior
(1999) 69 Cal.App.4th 223, 232-233 [as a general proposition, an attorney's
receipt of confidential information from a nonclient may lead to the attorney's
disqualification].)
B.
for Successive Attorney-Client Representations under the California Rules of
Professional Conduct
An attorney
"shall not, without the informed written consent of the client or former
client, accept employment adverse to the client or former client where, by
reason of the representation of the client or former client, the member has
obtained confidential information material to the employment." (Rules Prof. Conduct, rule 3-310(E)
(hereafter rule 3-310(E)); SpeeDee Oil, supra, 20 Cal.4th at p. 1146.) This rule, and the rules of professional
conduct generally, govern disqualification where the party seeking to
disqualify counsel establishes that it was " ' "represented" ' "
by that counsel in a manner giving rise to an attorney-client
relationship. (Oaks Management, supra,
145 Cal.App.4th at p. 465; Med-Trans
Corp., Inc. v. City of California City (2007) 156 Cal.App.4th 655, 668, fn.
8; Koo v. Rubio's Restaurants, Inc. (2003)
109 Cal.App.4th 719, 729.)
name="_ftnref3" title="">[3]
In
addressing principles pertaining to disqualification of counsel for alleged
successive representation of clients with claimed adverse interests, the
California Supreme Court has explained:
"Protecting the confidentiality of communications between attorney
and client is fundamental to our legal system.
The attorney-client privilege is a hallmark of our jurisprudence that
furthers the public policy of ensuring
' "the right of every person to freely and fully confer
and confide in one having knowledge of the law, and skilled in its practice, in
order that the former may have adequate advice and a proper defense." [Citation.]'
[Citation.] To this end, a basic
obligation of every attorney is '[t]o maintain inviolate the confidence, and at
every peril to himself or herself to preserve the secrets, of his or her
client.' " (SpeeDee Oil, supra, 20 Cal.4th at
p. 1146.) This duty of confidentiality
survives termination of the attorney's representation. (Cobra
Solutions, supra, 38 Cal.4th at
p. 846.)
"Th[e]
enduring duty to preserve client confidences precludes an attorney from later
agreeing to represent an adversary of the attorney's former client unless the
former client provides an 'informed written consent' waiving the conflict. [Citation.]
If the attorney fails to obtain such consent and undertakes to represent
the adversary, the former client may disqualify the attorney by showing a '
"substantial relationship" ' between the subjects of the prior and
the current representations.
[Citation.] To determine whether
there is a substantial relationship between successive representations, a court
must first determine whether the attorney had a direct professional
relationship with the former client in which the attorney personally provided
legal advice and services on a legal issue that is closely related to the legal
issue in the present representation.
[Citation.] If the former
representation involved such a direct relationship with the client, the former
client need not prove that the attorney possesses actual confidential
information. [Citation.] Instead, the attorney is presumed to possess
confidential information if the subject of the prior representation put the
attorney in a position in which confidences material to the current
normally have been imparted to counsel.
[Citations.] When the attorney's
contact with the prior client was not direct, then the court examines both the
attorney's relationship to the prior client and the relationship between the
prior and the present representation. If
the subjects of the prior representation are such as to 'make it likely the
attorney acquired confidential information' that is relevant and material to
the present representation, then the two representations are substantially
related. [Citations.] When a substantial relationship between the
two representations is established, the attorney is automatically disqualified
from representing the second client."
(Cobra Solutions,
Thus,
"a 'substantial relationship' exists whenever the 'subjects' of the prior
and the current representations are linked in some rational manner." (Jessen v. Hartford Casualty Inc. Co. (2003) 111 Cal.App.4th 698,
711.) "[S]uccessive representations
will be 'substantially related' when the evidence before the trial court
supports a rational conclusion that information material to the evaluation,
prosecution, settlement or accomplishment of the former representation given
its factual and legal issues is also material to the evaluation, prosecution,
settlement or accomplishment of the current representation given its factual
and legal issues." (Id. at
p. 712; see also Fremont Indem. Co. v.
Fremont General Corp. (2006) 143 Cal.App.4th 50, 68, 69.) Materiality is essential: the information
acquired from the first representation "must be found to be directly at
issue in, or have some critical importance" in the second
representation. (Fremont Indem. Co., at p. 69.)
But "the substantial relationship test is broad and not limited to
the 'strict facts, claims and issues involved in a particular action.'
" (Knight v. Ferguson (2007) 149 Cal.App.4th 1207, 1213.)
"The
'substantial relationship' test mediates between two interests that are in
tension in such a context—the freedom of the subsequent client to counsel of
choice, on the one hand, and the interest of the former client in ensuring the
permanent confidentiality of matters disclosed to the attorney in the course of
the prior representation, on the other. Where the requisite substantial relationship
between the subjects of the prior and the current representations can be
demonstrated, access to confidential information by the attorney in the course
of the first representation (relevant, by definition, to the second
representation) is presumed and disqualification of the attorney's
representation of the second client is mandatory; indeed, the disqualification
extends vicariously to the entire firm."
(Flatt v. Superior Court (1994) 9 Cal.4th 275, 283-284.) " 'The presumption of knowledge is a
"rule by necessity" as the former client would be at a loss to prove
what is in the mind of the attorney.
Neither should the attorney be forced to evaluate the extent to which he
[or she] acquired relevant information and his [or her] actual use of that
knowledge in the current representation.' " (Shandralina
G. v. Homonchuk (2007) 147 Cal.App.4th 395, 407-408.)
The Court
of Appeal applied the substantial relationship test in Brand, supra, 124
Cal.App.4th 594. There, an attorney,
Zalma, and his law firm represented an insurance company for three years,
providing coverage opinions in connection with coverage and bad faith claims
under the insurer's insurance policies, some of which involved moisture
intrusion, rot and fungal infestation under its homeowner policies.
599.) It was undisputed in that case
that Zalma had received confidential information while he was coverage counsel:
information concerning the company's claims handling policies and procedures,
litigation strategies, and business practices concerning the insurer's handling
of litigation arising from mold infestation claims. (Ibid.)
also formed a training school for insurance adjusters and lawyers, which the
insurer engaged to train its adjusters concerning that insurer's claims
handling practices and procedures. (
In preparing for this training, Zalma consulted with the insurer
concerning its policies and procedures, spent two or three days analyzing its
homeowner's policy line by line, and critiqued the company regarding its claims
handling practices. (
Twelve
years later, an insured, Brand, sued the insurer for breach of contract and bad
faith arising out of her claim for water damage to her home, and designated
Zalma as an expert to testify about the insurer's handling of her claims.
600.) The insurer moved to disqualify
Zalma, but
ruling a substantial relationship could not be established based on the amount
of time between the two engagements, and because the training school seminar
was a "general course" that could not form the basis of any claim of
attorney-client privilege supporting disqualification. (Id.
at p. 601.)
On the insurer's
appeal, the Court of Appeal reversed, holding the requisite "substantial
relationship" was met on the undisputed facts presented with respect to
Zalma's engagements. (Brand, supra, 124 Cal.App.4th at p. 605.) The appellate court observed Zalma's involvement
was direct and personal: Zalma had both "personally represent[ed]"
the insurer as its attorney and supervised associates representing the
company. (Ibid.) It
confidential information merely by virtue of the nature of Zalma's
representation, because such confidential information "would normally have
been imparted to [him]." (
representation concerned matters substantially related to the issues in Brand's
case, namely, coverage under the insurer's policies on claims including
moisture intrusion, and defense of the insurer in coverage and bad faith
actions by policyholders challenging the insurer's claims handling.
605-606.) Both the cases Zalma handled on
behalf of the insurer and Brand's case arose from claims on
a homeowner's policy for moisture intrusion and mold. (Id.
at p. 606.) Accordingly,
factual and legal
perspective, the two
engagements must be
deemed substantially
substantial risk '
"that representation of
will involve the
use of information
acquired in the
course of representing
the former client
. . . ." ' [Citation.] Since, in
these circumstances,
been exchanged between
the lawyer and
the client, courts
will conclusively presume
they were exchanged,
and disqualification
"
The Court
of Appeal held that given Zalma's direct and personal relationship, "[t]he
passage of 12 years between the two engagements did not neutralize Zalma's
representation in the first case."
(Brand, supra, 124 Cal.App.4th at p. 607.)
It explained the conclusive presumption was not overcome by either
Zalma's professed failure to recall any confidential information obtained
during his representation of the insurer or the passage of 12 years since his
direct representation of the insurer, reasoning that to hold otherwise would
risk Zalma employing confidential information to testify against his former
client: " 'Where
the factual presentations
of the parties
stray into the
prohibited world covered
by the conclusive
presumption, the dispute
effectively becomes
of the extent
to which [the
attorney] acquired relevant
information in the
first representation
information in the
subsequent representation." [Citation.]
occurs, the base
purpose of the
conclusive presumption
into the actual
state of the
confidences are in
danger of disclosure,
however inadvertent.' "
(Ibid.)
IV. Section
12940 Cause of Action for Failure to Take Reasonable Steps to Prevent
Harassment and Discrimination
The sole
cause of action on which City focused in its disqualification motions, and that
the trial courts found triggered the disqualifying conflict, were petitioners'
claims under section 12940, subdivisions (j)(1) and (k) that defendants City
and Landsdowne failed to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.
entail an assessment of the legal and factual issues involved in prior and
successive representations, it is useful to provide a short overview of such a
claim.
The
California Supreme Court explains that California's Fair Employment and Housing
Act "makes it a separate unlawful employment practice" for an
employer to violate section 12940, subdivision (k). (State Dept. of Health Services v.
Superior Court (2003) 31
Cal.4th 1026, 1040.) This court has
suggested the provision creates a tort made actionable by statute with the
usual elements of duty of care, breach of duty, causation and damages. (See Trujillo
v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286-287
[addressing former subdivision (i) of section 12940].) "The employer's duty to prevent
harassment and discrimination is affirmative and mandatory." (Northrop
Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021,
1035.)
Appellate
courts have identified some of the steps that an employer might take to meet
this duty. One reasonable step required
to ensure a discrimination or harassment-free workplace is a "prompt investigation"
of the discrimination claim. (
Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1024;
Appeals Bd., supra, 103
Cal.App.4th at pp. 1035-1036, disagreed with on unrelated grounds in
151 Cal.App.4th 1102, 1111-1112.)
"Other reasonable steps an employer might take include the
establishment and promulgation of antidiscrimination policies and the
implementation of effective procedures to handle complaints and grievances
regarding discrimination." (
v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, the appellate court
found summary judgment was precluded on an employee's section 12940,
subdivision (k) claim by evidence that the employer failed to comply with
requirements under section 12950, subdivisions (b) and (e) that it display
posters on the illegality of sexual harassment in the workplace and distribute
information sheets to employees with specified information concerning their
legal remedies, among other things. (
In the
context of a claim under subdivision (j)(1) of section 12940, which requires an
entity to "take all reasonable steps to prevent harassment from
occurring," the Fifth District Court of Appeal explained, "Once an
employer is informed of . . . harassment, the employer must take adequate
remedial measures. The measures need to
include immediate corrective action that is reasonably calculated to (1) end
the current harassment and (2) to deter future harassment. [Citation.]
The employer's obligation to take prompt corrective action requires (1)
that temporary steps be taken to deal with the situation while the employer
determines whether the complaint is justified and (2) that permanent remedial
steps be implemented by the employer to prevent future harassment once the
investigation is completed.
[Citation.] An employer has wide
discretion in choosing how to minimize contact between the two employees, so
long as it acts to stop the harassment.
[Citation.] '[T]he reasonableness
of an employer's remedy will depend on its ability to stop harassment by the
person who engaged in harassment.' "
(Bradley v. California Department of Corrections and Rehabilitation (2008) 158 Cal.App.4th 1612, 1630.)
V. Analysis
A.
Petitioners
did not address in their writ petitions whether Leimbach's prior relationship
with Department was that of attorney and client, or whether it was sufficiently
direct and personal to presume her receipt of confidential information
under the substantial relationship test. Rather, petitioners presumed application of
rule
3-310(E) and argued there was no substantial relationship between
Leimbach's previous representation of Department on the one hand, and her
representation of petitioners on the other.
Specifically, Botsford argued "any information acquired by
[Leimbach] during the first representation, even if confidential, is not
material to the current representation . . . ." Zizzo likewise challenged the materiality of
the information acquired by Leimbach.
Following
oral argument in the matter, we asked the parties to address whether (1)
Leimbach represented Department within the meaning of rule 3-310(E) in her
prior employment with Department, (2) whether Leimbach acquired confidential
information in her prior representation of Department or as EEO manager such
that she owed a duty of fidelity to Department; and (3) whether substantial
evidence supports an implied trial court finding that Leimbach's employment
with Department constituted prior representation for purposes of applying a
conflict of interest analysis. In part,
Leimbach maintained she did not represent Department because she was hired not
as an attorney but as a manager and did not provide Department with legal
advice.
As we have
stated, our rule on review is to " 'discard evidence unfavorable to the
prevailing party as not having sufficient verity to be accepted by the trier of
fact.' " (Kennedy v. Eldridge, supra,
201 Cal.App.4th at p. 1203.) City's
evidence demonstrated that Leimbach had personally consulted and interacted
with Department representatives, including Long and Department investigators,
by virtue of her five-year employment as Department's EEO program manager. In that capacity, she established
Department's employment discrimination training and harassment prevention
program, and supervised its internal investigations of discrimination,
harassment or retaliation complaints.
Leimbach admits having instructed Department employees and management in
the "nuances" of EEO law and consulting with police legal advisors
handling the defense of claims brought against Department employees when legal
issues arose. She was "often"
involved in the defense of harassment and discrimination claims against
Department employees. Though Leimbach
denies giving legal advice, and she was on inactive status with the California
bar at the time she worked as Department's EEO manager, Long explained in his
declaration that everyone knew Leimbach, who had previously represented
Department in employment discrimination and harassment litigation as a deputy
city attorney, was an attorney and he always considered his discussions with
her to be confidential and protected by the attorney-client privilege. Long stated that virtually all of his efforts
to ensure Department took reasonable steps to prevent harassment and
discrimination were done with Leimbach's consultation or supervision. There is no evidence demonstrating or
suggesting anyone at Department knew Leimbach was on inactive status. Further, in her opposing declarations
Leimbach denied giving legal advice or making legal decisions only with respect
to "specific employment cases," leaving open an inference, supported
by Leimbach's admissions and Long's declaration, that she gave general legal
advice to Long and other Department representatives or legal advisors on what
Department must reasonably do (or need not do) to investigate and/or prevent
harassment and discrimination.
Though we
look to the totality of the circumstances, as well as the parties' conduct, to
determine the presence of an implied attorney-client relationship, one of the
most important facts is " 'the expectation of the client based on how the
situation appears to a reasonable person in the client's position.' " (Responsible
Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1732-1733, quoting
Friedman, The Creation of the
Attorney-Client Relationship: An Emerging View (1986) 22 Cal. Western
L.Rev. 209, 231; Strasbourger Pearson
Tulcin Wolff Inc. v. Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399,
1404.) A client's reasonable belief that
the person with whom he is consulting is an attorney will create a relationship
sufficient to justify application of the attorney-client privilege, no retainer
agreement is required and that person need not be licensed to practice in the
jurisdiction. (Evid. Code, § 950
[defining "lawyer" as "a person . . . reasonably believed by the
client to be authorized, to practice law"] & Cal. Law Revision Com.
com., 29B Pt. 3A (2009 ed.) foll. Evid. Code, § 950, p. 301; see also
prevent an attorney-client relationship from arising and "a formal
retainer agreement is not required before attorneys acquire fiduciary
obligations of loyalty and confidentiality, which begin when attorney-client
discussions proceed beyond initial or peripheral contacts"].) Based on Leimbach's own admissions and Long's
declaration, the trial courts reasonably concluded that Department established,
either directly or by reasonable inference, that Leimbach's management position
involved her provision of legal services (including training Department
investigators and others in EEO law) if not actual legal advice. " ' "When a party seeking legal
advice consults an attorney at law and secures that advice, the relation of
attorney and client is established prima
facie." ' " (
Having
found sufficient evidence to support implied findings that Leimbach represented
Department within the meaning of rule 3-310(E), we further conclude that under
a substantial relationship analysis, both trial courts properly found her and
Department's relationship was sufficiently direct and personal to permit a
information related to the current litigation.
Leimbach's employment relationship with Department was not preliminary,
peripheral or attenuated. (See Orange
County Water Dist. v. The Arnold Engineering Co., supra, 196 Cal.App.4th at pp. 1116-1117 [reviewing
court implies factual findings that are supported by substantial evidence];
City (2007) 156 Cal.App.4th 655, 665, 668 [peripheral or attenuated
relationship between party seeking disqualification and attorney requires
application of a modified substantial relationship test to demonstrate,
directly or by reasonable inference, attorney's acquisition of confidential
information]; Faughn v. Perez (2006)
145 Cal.App.4th 592, 603; Ochoa v. Fordel,
supra, 146 Cal.App.4th at pp.
907-908; In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556,
564-565.) Substantial evidence supports
the lower courts' implied factual findings that Leimbach had a direct and
personal relationship with Department.
Faced with
a direct professional relationship between Department and Leimbach, we are not
to inquire into the specifics of her communications with Department
representatives in an effort to show she did or did not obtain confidential
information during the course of her relationship. (Brand,
supra, 124 Cal.App.4th at p. 607; see
also Faughn v. Perez,
119 Cal.App.4th 671, 683, fn. 10, 688 [asking a party insurance company to
reveal the specific confidential information that its former attorney had in
his possession that could be used to the insurer's disadvantage in the
successive representation is a prohibited inquiry]; Jessen v. Hartford
Casualty Inc. Co., supra,
111 Cal.App.4th at pp. 706, 710, 711 [if court determines attorney's former
representation was direct and personal, "the only remaining question is
whether there is a connection between the two successive representations, a
study that may not include an 'inquiry into the actual state of the lawyer's
knowledge' acquired during the lawyer's representation of the former
client"]; Global Van Lines, Inc. v.
Superior Court (1983) 144 Cal.App.3d 483, 489.) Rather, as stated above,
finding a substantial relationship depends on the strength of the similarities
between the legal problem involved in the former and current
representations. (Cobra Solutions, 38 Cal.4th at p. 846; Farris, at p. 679.) When an
attorney has a direct relationship with the client in the first representation,
"the . . . evaluation of whether the two representations are substantially
related centers precisely upon the factual and legal similarities of the two
representations." (
whether Leimbach's personal advice or services to Department were on a legal
issue or issues that are "closely related to the legal issue [or issues]
in the present representation." (
Drawing all
reasonable inferences in favor of the orders disqualifying counsel (Orange
County Water Dist. v. The Arnold Engineering Co., supra, 196 Cal.App.4th at pp. 1116-1117), we conclude
there is sufficient relation or overlap between the factual and legal issues
involved in Leimbach's prior employment with Department and the present actions
challenging City's failure to prevent harassment and discrimination. The present actions involve not only the
question of whether Department followed
its established EEO policies and procedures, but whether Department's
established policies and procedures, and the type and nature of corrective
actions it took in the face of a discrimination and harassment complaint,
ensure a workplace free of discrimination and harassment. The FEHA imposes a duty on Department to
procedures to stem discrimination and harassment, raising the question of
whether the policies and program that Leimbach herself designed, implemented,
and supervised were sufficient in that respect.
Assistant Police Chief Long explained that Leimbach was instrumental in
instituting Department strategies and policies, and supervised Department
investigators. Based on this evidence as
well as Leimbach's own admissions, it is reasonable to infer that, by the very
nature of her prior work as Department's EEO Manager and personal establishment
of Department's training and prevention program, Leimbach was exposed to not
only litigation strategies, but Departmental strategies as to what methods were
or were not sufficiently adequate; that she knew which methods or procedures
were considered but not included in Department's policies and practices; that
she participated in Department's internal decisionmaking as to how it would
construe and apply its policies; and that she decided whether particular
procedures or methods would be sufficient corrective or remedial action
following an actual complaint of harassment or discrimination.
In our
view, the evidence as to Leimbach's prior relationship with Department is akin
to that of attorney Zalma in Brand,
former general counsel in Global Van
Lines, Inc. v. Superior Court, supra,
144 Cal.App.3d 483, in which the appellate court issued a peremptory writ
ordering the superior court to disqualify counsel where the attorney, Global
Van Lines' prior general counsel for 16 years, had direct or indirect
involvement in both stock acquisitions as well as the defendant's standard
agency agreement, which was at issue in the present
Van Lines, at pp. 485-486, 490.)
According to the moving defendant's evidence, the general counsel had
been the " 'chief legal officer . . . responsible for overseeing all legal
matters on behalf of the corporation and its various subsidiaries and related
companies' " and had " 'handled, to a major extent' " the
defendant's acquisition of the stock of another company alleged by the
plaintiff to have been the defendant's alter ego in the case. (Id.
at p. 486.) The defendant presented
evidence that the attorney "was 'aware of [defendant's] policy concerning
agency relations and was fully conversant with [defendant's] standard Agency
Agreement.' " (Ibid.) Under those
circumstances, the appellate court found it reasonable to infer the attorney
would have been aware of legal problems arising from defendant's handling of
the agency agreement, and that a substantial relationship existed between the
two representations warranting disqualification because he had "acquired
substantial knowledge of the policies, attitudes and practices of Global's
management in respect to its entering into and carrying out its agency
agreements." (Id. at pp. 488-489.)
Further,
the similarity of issues in past and present representations is like that in
moving party insurance company established a connection between its internal
policies and procedures applied to the insured's claim by showing the attorney
was "instrumental in formulating those strategies and philosophies,"
participated in training the company's senior claims personnel in California
about how to handle and decide coverage questions, and provided advice the
company relied on to "develop, modify and interpret [its] practices,
policies and procedures related to coverage questions and disputes." (Id.
at pp. 684-685.) Here, petitioners'
evidence does not contradict Long's sworn assertion that the "vast
majority" of Department's current EEO policies and procedures were in
effect during the period covered by Zizzo's complaint.
of whether Department's written policies—the very policies created and
implemented by Leimbach during her tenure as Department's EEO manager—are
reasonable and adequate to prevent harassment and discrimination from
occurring, whether there were other measures Department could have taken but
elected to forego for strategic purposes, and whether the actual steps
Department took, including through its own interpretation and application of
those written policies, were effective and sufficient to alleviate the
misbehavior.
It is of no
moment that Leimbach in her prior representation acted as an EEO manager, but
seeks presently to act as Zizzo's attorney.
For "it is not the services performed by the attorney that
determines whether disqualification is required, it is 'the similarities
between the legal problem involved in the former representation and the legal
problem involved in the current representation.' [Citation.]
The test has never been the identity of the specific tasks the attorney
was asked to perform in either representation." (Farris
v. Fireman's Fund Ins. Co., supra,
119 Cal.App.4th at p. 681; see, e.g., Brand,
supra, 124 Cal.App.4th 594 [attorney
acted as coverage counsel in first representation and as an expert witness in
second representation].)
Petitioners
maintain City has not demonstrated "how counsels' knowledge acquired
through the former representation of [Department] policies and practices and
litigation strategies would provide any insight whatsoever into how the
[Department] would react in the current matter." They maintain it is not enough to show mere
similarity in legal issues implicated in the past and present representations,
citing Faughn v. Perez,
involved an attorney, Silberberg, who had represented a hospital in five prior
cases involving birth injuries and had been associated in as trial counsel to a
plaintiff in a birth injury case. (
not met its burden on its disqualification motion: it relied too heavily on
inferences about facts that were within its control and that could have been
disclosed without relying on confidential information. (Id.
at pp. 596, 610.) Importantly, the
hospital had presented no "direct evidence helpful in determining if the
procedures and practices used in the prior matters involving Attorney
Silberberg overlap (in whole or in part) with the procedures and practices that
[would] be used in plaintiffs' case" or a showing that the information was
material to the present litigation. (
evidence of such overlap via Long's declaration, which the trial court
credited, and materiality is established by the nature of petitioners' claims
involving Department's harassment prevention practices, strategies and
implementation of the very policies and program created by Leimbach. Any further inquiry into the actual
confidential information imparted to Leimbach by virtue of her prior
representation of or work with Department is prohibited.
B.
As for
attorney Stiffler, the sole evidence in the record is that he worked as a
deputy city attorney for about 21 years, from 1986 to 2007, and handled
employment litigation cases, including harassment and discrimination cases,
against Department, and also worked in the criminal division of the city
attorney's office in 2011.
name="_ftnref8" title="">[8] These facts do not necessarily establish that
attorney Stiffler had the same direct or personal relationship with Department
as did Leimbach, and thus we cannot presume his possession of confidential
information. Further, there is no
evidence attorney Stiffler was privy to information concerning Department's
practices and strategies for investigating or taking steps to prevent
discrimination and harassment. It is not
enough to show the former and current representations involve the same general
subject matter. (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114
Cal.App.4th 689, 711.)
City does
not, however, limit its ground for disqualification on Stiffler's presumed
possession of confidential information.
It argues Stiffler is vicariously disqualified due to his association
with Leimbach, and that Leimbach's conflict is therefore imputed to Stiffler as
if he were "of counsel." For
this proposition, City relies on Pound v.
DeMera DeMera Cameron (2005) 135 Cal.App.4th 70 and Klein v. Superior Court (1998) 198 Cal.App.3d 894.
City's vicarious disqualification
argument has merit. As the California
Supreme Court has explained, vicarious disqualification rules are a product of
decisional law. (Cobra Solutions, supra,
38 Cal.4th at p. 847.) In
attorneys who are not members of the same law firm but associate together as
counsel to represent the same party when one of the associated attorneys
previously represented an adverse party in a substantially related matter. Pound involved a corporate defendant's
attorney who had agreed to search for personal legal counsel on behalf of two
individual defendants, and consulted with another attorney, Peter Bradley,
regarding issues that would eventually give rise to the underlying lawsuit. (Pound v. DeMera DeMera Cameron, supra, 135 Cal.App.4th at p.
74.) Three years later, attorney Andrew
Jones filed the underlying lawsuit on the plaintiffs' behalf and associated
Bradley as cocounsel. (Id.
at pp. 73-74.) The defendants moved to
disqualify both Bradley and Jones based on Bradley's prior consultation with
the defendants' counsel, and in connection with that motion, Jones denied
receiving any confidential information from Bradley regarding the
defendants. (Id. at pp. 74-75.) The trial court disqualified Bradley
because of the substantial relationship between his consultation with
defendants' counsel and his joint representation of the plaintiffs, but refused
to disqualify Jones. (Id.
at pp. 73-75.)
The appellate court in Pound
affirmed Bradley's disqualification, but reversed the decision not to
disqualify Jones, holding that once the trial court had determined Bradley
received confidential information concerning defendants, Jones's
disqualification was necessarily required.
(Pound v. DeMera DeMera Cameron, supra, 135 Cal.App.4th at pp. 73, 76-77.) It reasoned there was "no
logical or substantive
manner to distinguish"
between attorneys who work together in a firm and independent attorneys who
associate together to jointly represent the same client in a single
matter. (Pound, at p. 77.) The court explained, "[T]he
need to
| Description | In these consolidated petitions for writ of mandate, petitioners Laura Zizzo and Stacee Botsford, both detectives for the San Diego Police Department (Department), contend the superior court abused its discretion by disqualifying their attorneys, former San Diego deputy city attorneys who had previously represented Department in employment-related litigation. One of the attorneys, Carol Leimbach, had gone on to work for Department as its equal employment opportunity (EEO) program manager for an approximately five-year period, and the other, Mark Stiffler, had associated in as Leimbach's cocounsel for purposes of petitioners' present superior court law suits. In part, petitioners maintain the information obtained by Leimbach and Stiffler during their prior representation of Department was not material to petitioners' claims in the present litigation that the chief of police and real party in interest, City of San Diego (City), failed to take all reasonable steps to prevent sexual harassment in the workplace from occurring (Gov. Code,[1] § 12940, subds. (k), (j)(1)) and City did not show sufficient similarity in factual and legal elements between the past and present representations to warrant their disqualification. We conclude City's showing warrants attorney Leimbach's disqualification in both actions. We further conclude that attorney Stiffler is vicariously disqualified due to his association as Leimbach's cocounsel. Accordingly, we deny the writ petitions. |
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