Rodriguez v.
Dept.
Filed 2/27/12 Rodriguez v. Burbank Police
Dept. CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
OMAR RODRIGUEZ et al.,
Plaintiffs
and Appellants,
v.
BURBANK
POLICE DEPARTMENT
et
al.,
Defendants and Respondents.
B227414
(Los Angeles County
Super. Ct. No. BC414602)
APPEAL from a judgment of the Superior Court of
County, Joanne B. O’Donnell, Judge. Affirmed.
Law Offices of Rheuban & Gresen,
Steven M. Cischke and Solomon E. Gresen for Plaintiffs and Appellants.
Ballard, Rosenberg, Golper &
Savitt and Linda Miller Savitt; Mitchell Silberberg & Knupp, Lawrence A.
Michaels and Veronica T. von Grabow for Defendants and Respondents.
On May
28, 2009,
appellants Omar Rodriguez, Cindy Guillen-Gomez, Steve Karagiosian, Elfego
Rodriguez and Jamal Childs (collectively appellants) brought an action against
respondent City of Burbank (City) and the Burbank Police
Department under the California Fair
Employment and Housing Act (FEHA)
and the Public Safety Officers Procedural Bill of Rights Act (POBRA).
Elfego Rodriguez
title="">[3]
on February 26, 2010. The trial
court granted the motion on July 12, 2010, a judgment was entered, and Elfego
has appealed from the judgment against him.
In the meantime, on June
17, 2010,
appellants filed a motion to disqualify the two law firms that represent
City. The trial court denied that
motion, and all appellants have appealed the denial of this motion.
We have consolidated the appeals for
the purposes of oral argument and decision, and affirm the trial court’s
rulings.
Elfego’s
APPeal from Summary Judgment
The operative, first amended complaint
(hereafter complaint) alleges seven causes of action; all but two are
predicated on various subdivisions of Government Code section 12940 (hereafter
section 12940). In numerical order,
these five causes of action are for discrimination,
harassment, wrongful retaliation, wrongful failure to accommodate, and failure
to take reasonable steps to prevent discrimination, harassment and wrongful
retaliation. The cause of action
alleging violations of POBRA has been abandoned in this appeal. The final, seventh cause of action is for
injunctive relief.
The factual allegations that pertain
to Elfego individually are that Elfego was hired by the Burbank police department in June 2004; that
he performed very well throughout, receiving numerous commendations; and that
he was selected to serve in the prestigious Special Enforcement Detail
(SED). The complaint alleges that during
Elfego’s tenure with the Burbank police department, he was subjected
to discrimination, harassment and wrongful retaliation, that he reported these
incidents but that nothing was done about them.
The complaint alleges that Elfego, who is of Guatemalan descent, has
been taunted by fellow officers as looking “like the bad guys we chase” and
that Hispanics are commonly referred to by Burbank police officers in racially
degrading ways, such as “half-breed.”
Offensive racial epithets are common, according to the complaint, which
create, among other things, a hostile work environment. The complaint also alleges that Elfego, like
other minorities, has been denied promotion because of his race.
Elfego contends that the trial court
erred in (1) not allowing him to amend his complaint before hearing the summary
judgment motion, (2) in sustaining various objections to the evidence he
submitted in response to the motion, and (3) in granting
Amendment of the Complaint
A.
Procedural Background
City’s summary judgment motion was
initially set for May 12, 2010. In the
interim, on March 30, 2010, the Burbank police department terminated
Elfego. Thereafter, on April 6, 2010,
before Elfego had filed any responsive papers, he filed an ex parte application
to continue the hearing on the summary judgment motion or to take it off
calendar. The application stated that
there had been a change in Elfego’s status, and that Elfego “intends to apply
to this court for leave to amend the Complaint.” The attorney’s supporting declaration stated
that “Plaintiffs intend to file a motion for leave to amend this Complaint to
(a) include the new facts of Plaintiffs Elfego and Omar Rodriguez’ wrongful
termination in violation of FEHA and POBRA, and (b) plead a claim for disparate
impact in the Complaint.” The
declaration stated that July 16, 2010 had been reserved for the hearing to
amend the complaint.
City filed an opposition to the
summary judgment motion was then due on April 28, 2010 and that Elfego had not
articulated what facts he could not discover by April 28, 2010.
The trial court denied the ex parte
application to continue the summary judgment hearing. In its minute order, the court stated that it
could not foresee whether the expected motion to amend the complaint would be
granted and, if it were granted, whether an amendment to the complaint would
affect the motion for summary judgment.
Elfego never filed a motion to amend
the operative, first amended complaint.
Instead, he filed his opposition to the motion for summary judgment on
April 28, 2010. In a single footnote on
the last page of Elfego’s memorandum in opposition to the motion was the remark
that if the court did not agree that Elfego had shown that he had a prima facie
case, the court should “treat this motion as a motion for judgment on the
pleadings and allow Plaintiff to file an amended complaint.”
The hearing of the motion for summary
judgment took place on May 21, 2010. The
court’s tentative ruling was to grant the motion, which remained the court’s
ruling. The judgment was entered on July
12, 2010.
Elfego Could Not Amend his Complaint
Elfego contends that the trial court
erred “in not allowing appellant to amend the complaint to allege the facts of
his termination.” (Capitalization and
bolding omitted.) He is mistaken. Elfego never filed a motion to amend the
first amended complaint. Thus, the court
never ruled that Elfego would not be permitted to amend. To the contrary, the court simply denied
Elfego’s ex parte application to continue the hearing on the summary judgment
motion, in the absence of a properly filed motion to amend the complaint.
In a single footnote on the last page
of Elfego’s memorandum in opposition to the motion for summary judgment was the
comment that if the court did not agree that Elfego had shown that he had a
prima facie case, the court should “treat this motion as a motion for judgment
on the pleadings and allow Plaintiff to file an amended complaint.” We note that, for the purposes of an appeal,
an argument placed in a footnote in an appellate brief is deemed to have been
waived and will not be considered by the court.
(Evans v. CenterStone Development
Co. (2005) 134 Cal.App.4th 151, 160.)
We see no reason why this should not apply to a filing in a trial
court. In fact, there is every reason to
do so since a trial court, faced with the ever-daunting task of wading through
hundreds of pages of text in a motion for summary judgment, which was certainly
true of this case, can hardly be expected to rule on a bare request in a single
footnote, unsupported by any factual material, case authority, or a proposed
amended complaint, to “treat this [summary judgment] motion as a motion for
judgment on the pleadings and allow Plaintiff to file an amended
complaint.” To put it differently, if
Elfego wanted to amend the complaint, it was his responsibility to file a
motion to amend. It was not the trial
court’s duty, upon the reading of the footnote, to set a hearing for a
non-existent motion to amend.
Finally, Elfego does not actually
contend that the court erred in denying a continuance of the summary judgment
motion. Accordingly, we need not address
that issue. We note in passing, however,
that the court’s order of April 6, 2010 denied only the request for an ex parte
hearing, and did not obviate properly a noticed motion for a continuance or an
ex parte application to hear such a motion on shortened notice.
In sum, the trial court never ruled
that Elfego could not amend the first amended complaint.
II. Summary Judgment
Elfego contends that he raised a
triable issue of material fact as to whether he suffered an adverse employment
action. Therefore, the trial court erred
in adjudicating his first cause of action for employment discrimination based
on race. (Gov. Code, § 12940, subd.
(a) (hereafter “section 12940”
.name="_ftnref4" title="">[4] We disagree.
Summary judgment is granted when the
moving party satisfies “the burden of persuasion that there is no triable issue
of material fact and that he is entitled to judgment as a matter of law. . .
. There is a triable issue of material
fact if, and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (
an initial burden of production to make a prima facie showing that one or more
elements of the cause of action cannot be established, or that there is a
complete defense. He may sustain this burden
by showing that the plaintiff does not have, and cannot reasonably obtain,
evidence to prove one or more elements of the cause of action by a
preponderance of the evidence. If he
succeeds, the burden of production shifts to the plaintiff to make a prima
facie showing that a triable issue of material fact exists as to the cause of
action. (See Aguilar, supra, 25 Cal.4th at pp. 850-851.)
In determining whether a triable issue
of material fact exists, the court must strictly construe the moving party’s
papers. However, the opposing party’s
evidence must be liberally construed to determine the existence of a triable
issue of fact. “All doubts as to whether
any material, triable issues of fact exist are to be resolved in favor of the
party opposing summary judgment.” (
Cal.App.4th 558, 562; see Aguilar, supra,
25 Cal.4th at p. 843.)
The prohibition of discrimination set
forth in section 12940 “is often restated in judicial
opinions as a requirement that the discriminatory action result in ‘adverse
employment action.’” (
State University (2005) 132 Cal.App.4th 359, 373.) “In some cases, adverse action affecting
‘terms, conditions, or privileges of employment’ (actionable) is contrasted
with changes that merely displease the employee (not actionable). [Citation.]
In other words, changes in terms and conditions of employment must be
both substantial and detrimental to
be actionable.” (Ibid., italics added.)
Examples of adverse employment actions are removing a police lieutenant
from a position near the top of the department and then removing him from all
law enforcement duties; and suspension from duty, even if the leave is with
pay. (Id. at p. 374.)
As the court held it in
Cal.4th 317, 355, an employee with a FEHA discrimination claim under section
12940, subdivision (a) must provide evidence that he or she suffered an adverse
employment action, such as termination, demotion, or denial of an available
job. The
standard for defining an adverse employment action is the “materiality” test,
“a standard that requires an employer’s adverse action to materially affect the
terms and conditions of employment.” (
Cal.4th 1028, 1036.) Here, as
City demonstrated in its motion, Elfego claims to have been subjected to four
adverse employment actions, none of which rises to the level of an adverse
employment action. Therefore, he does
not have and cannot produce evidence to support that essential element of his
cause of action.
The first alleged adverse employment
action on which Elfego relies is the “loss of assignment to the prestigious SED
[Special Enforcement Detail] unit when it was disbanded.” However, as City’s evidence showed, Elfego
was selected for SED by Captain Janice Lowers in or around October 2008. Later, SED, whose function was to assist
police detectives, was disbanded in May 2009.
In a declaration filed in support of summary judgment, Captain Lowers
explained that the reasons for disbanding SED were budgetary and the decision
to shift more officers into patrol.
Elfego claims that SED was disbanded
because Elfego and fellow officer and co-plaintiff Steve Karagiosian complained
about racist comments that were allegedly displayed on a board in a
hallway. But he supports this contention
by citing his own statement of disputed facts, as he does throughout his
opening brief. City, citing
60 Cal.App.4th 171, 178, footnote 4, points out, correctly, that the statement
of a disputed fact is not evidence and it is evidence that Elfego must produce;
we set forth the relevant holding in the margin.
In any event, there is simply no
evidence that SED was disbanded because Elfego and others complained about the
racist comments on the board. Elfego
claims in his brief that this was so, but he produced no evidence below to
support this assertion. Even if the
employer has lied about the reasons for the employment action (and that of
course is Elfego’s position), there must be “evidence
supporting a rational inference that intentional discrimination, on grounds
prohibited by the statute, was the true cause of the employer’s
actions.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 361.) To illustrate, if the chief of police had
said that blacks and Mexicans could not serve in SED, this would be evidence of
intentional discrimination. But there is
nothing discriminatory in being upset about complaints, even if one were to
assume that this was true.
The next alleged adverse employment
action was that Elfego was passed over for service in the Special Response Team
(SRT) for two “lesser qualified Caucasian candidates.” As City’s evidence showed, Elfego was passed
over three times for SRT, which is Burbank’s equivalent of a SWAT team. The qualifications of the three officers who
preceded Elfego were four years on an SRT-type police team in Monrovia, service
on the Los Angeles sheriff department’s Emergency Response Team, Marine Corps
service as an expert marksman and training in close quarters combat
tactics. Elfego had no particular
qualifications, and certainly none of the foregoing. It was also true that he did not perform as
well as the three officers did on the shooting range and the obstacle course
test. Finally, Elfego preceded another
Caucasian officer to the SRT. Moreover,
as with SED, Elfego was actually selected for SRT.
The third allegedly adverse employment
action was that Elfego was not selected to fill in for a Training Officer for
the period between June 27 and July 4, 2009.
The fact of the matter is that Elfego served as a Field Training Officer
from January 2007 to October 2008, when he joined SED. The two officers who were selected for the
one-week period were picked because they had expressed an interest and were
otherwise good officers. Elfego produced
no evidence that he was passed over for this one-week assignment because of
intentional discrimination.
The fourth and final alleged adverse
employment action was the “worst patrol assignment in the entire department
following the disbandment of SED.”
Because Elfego provides no evidence to support this claim, we disregard
it.
As we have noted, the standard for defining an adverse employment action is
the “materiality” test, “a standard that requires an employer’s adverse action
to materially affect the terms and conditions of employment.” (Yanowitz
v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1036.) As City points out, Elfego’s actual complaint
is not that he was denied SED, SRT and work as a Training Officer; he is
complaining about the timing of these
assignments. Given that timing appears
to be the issue, Elfego fails to offer even a rudimentary explanation why
timing rendered the aforesaid assignments adverse employment actions.
When viewed realistically, the
employment actions of which he complains were not material since he actually
did get these assignments, though not at the precise times that he wanted
them. The fact that he did receive all
three assignments militates heavily against the finding that the employment
actions were even adverse, to begin with, and, if adverse, whether they were
substantial, as the law requires. (
State University, supra, 132 Cal.App.4th at p. 373.) In other words, Elfego has failed to raise a
triable issue that he was subjected to adverse employment actions.
B. Harassment
Elfego
contends that triable issues of material exist as to his second cause of action
for harassment. However, as City
demonstrated in its motion below, his deposition testimony flatly contradicts
the claim of harassment.
In
2008, an outside investigator and attorney, Irma R. Moisa, was retained to
investigate charges made in an anonymous letter about racial and ethnic slurs
made by unnamed Burbank police officers.
Elfego was among those interviewed by Moisa. Elfego told her that had heard some
derogatory comments about Hispanics during his first year with the Burbank
police department (he started in 2004) but had heard no offensive remarks
thereafter. Elfego confirmed this in his
deposition that was taken in October 2009.
Not
every utterance of a racial slur in the workplace violates FEHA. (Aguilar
v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130.) The harassment, to be actionable, must be so
pervasive and severe that it alters the conditions of employment and creates an
abusive work environment. (
214 Cal.App.3d 590, 610.) Illustrative
of statements that Elfego cites in his appeal and that do not qualify under the
foregoing test is the statement by another officer that Elfego looked like “the
bad guys” the Burbank police chases.
Finally,
we agree with City that claims based on racial slurs made during Elfego’s first
year with the Burbank police in 2004-2005 are time-barred since the applicable
statute is one year (Gov. Code, § 12960, subd. (d)) and Elfego filed his
complaint in May 2009.
B.
to Prevent Discrimination
“To establish a prima
facie case of retaliation ‘a plaintiff must show (1) she engaged in a protected
activity, (2) her employer subjected her to an adverse employment action, and
(3) there is a causal link between the two.’”
(Mokler v. County of Orange (2007)
157 Cal.App.4th 121, 138.)
In the present case, there is
insufficient evidence to raise a triable issue that City took adverse
employment actions against Elfego.
Therefore, Elfego’s claims for retaliation and harassment fail.
Elfego contends that a number of the
trial court’s rulings sustaining City’s objections to evidence propounded by
Elfego were erroneous. “The court’s evidentiary rulings made on summary judgment
are reviewed for abuse of discretion.” (
98 Cal.App.4th 1158, 1169.) We briefly
discuss the rulings to which Elfego refers.
We find no reversible error.
We have a general observation that
applies to many of the objections Elfego addresses. The crux of the matter is whether Elfego can
point to evidence that intentional discrimination was the true
cause of the employer’s actions (Guz
v. Bechtel National, Inc., supra, 24 Cal.4th at p. 361); it need not be direct evidence, but the inference
must be rational (ibid.). Measured against this standard, much of the
evidence that Elfego has propounded is immaterial. As an illustration, the evidence that the
chief of police used the word “Nigger” is not of probative significance. The chief could have used the word as an
illustration of what not to say, or
he could have been quoting someone, or it could have been an aside uttered in
bad taste but without any intent to demean anyone. The circumstances under which the word was
used, or the setting in which it was used, would go a long way to instill some
relevance to this item of evidence.
Without the setting in which the word was used, it is not evidence of
intentional discrimination.
The court sustained City’s objection
to the following in Elfego’s declaration:
Objection 110
“I [Elfego] witnessed and heard Chief
Stehr use the word ‘Nigger’ in a management meeting in November 2008. He did not use the term as an instruction to
the officers that they should discontinue its use. While it is true that Chief Stehr did not
encourage the officers to use the term, it was clear in his tone that he
regretted that the term could no longer be used publicly.”
We agree with City that the bulk of
the foregoing is speculation about Chief Stehr’s state of mind. Even if the first sentence was not
speculative, it was, at best, of marginal relevance for reasons that we have
given above.
Objection 126
An objection was sustained to this
passage in Deputy Chief William Taylor’s declaration:
“I was at a Management Team meeting on
or about November 2008 in which Chief Stehr used the word ‘Nigger.’ I did not interpret Chief Stehr’s comment as
an effort on his part to teach anyone in the room that use of that term was unauthorized
or would not be tolerated.”
The second sentence speculates about
Stehr’s state of mind and was inadmissible.
Even if otherwise admissible, the first sentence was of marginal
relevance for the stated reasons.
Objection 8
The trial court sustained an objection
to the following from Elfego’s declaration:
“Nevertheless, racial and ethnic slurs
have continued in the Department, though not as frequent since this lawsuit was
filed. During the past two years I have
heard the term ‘wetback,’ ‘Julios,’ ‘gardeners,’ and ‘half-breed’ used on the
Burbank Police Department premises on numerous occasions.”
This statement contradicts Elfego’s
deposition testimony that he had not heard any racial slurs since October 2009
and therefore the court properly disregarded it. (D’Amico
v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.) This rule is of particular importance to this
case. The complaint alleges that there
were “numerous incidents of race based . . . discrimination;” when the
complaint is closely examined, the “incidents” boil down to racial
epithets. It is therefore particularly
significant that Elfego’s deposition testimony effectively nullifies an
important part of his case.
Objection
101
Another objection was sustained to a
similar passage, and the ruling is it is correct for the same reason that
objection 8 was correctly sustained.
The remaining objections were
interposed to the declaration of Deputy Chief William Taylor.
Objection 118
“Assignment as a Field Training
Officer is an excellent opportunity for professional growth.”
This is irrelevant. Standing alone, whether this assignment was
valuable simply sheds no light on whether the police department intentionally
discriminated against Elfego. In other
words, there is no connection between the value of serving as a Field Training
Officer and intentional discrimination.
Objection
122
The statement was that SED budgetary
issues had been resolved prior to Elfego’s assignment to that unit.
If Elfego’s point is that City was
dissembling when it claimed that SED was disbanded because of budgetary
consideration, this still does not amount to evidence of intentional
discrimination. Even if the employer has
lied about the reasons for the employment action, there still must be evidence, direct or circumstantial, of intentional
discrimination. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 361.)
Objection 123
A lengthy passage addressed the
planning of a Special Problems Unit to replace SED.
This is irrelevant. Elfego’s point is once again that City is
dissembling about the disbanding of SED.
Our observation about objection 122 applies here as well.
Objection 124
The statement was that Taylor was
normally involved in the decision making process.
It is difficult to see a connection
between this fact and Elfego’s case.
Very possibly, the point of this is once again that the reason given for
disbanding SED was a subterfuge. If so,
our comment about objection 122 applies.
Objection 119
A lengthy statement that SED was a
valuable experience for a police officer.
We cannot see how this is relevant
since Elfego did serve in the SED.
Objection
125
The statement was that Captain Lynch
was targeting minority recruits for termination.
This was inadmissible insofar as it
speculated regarding Captain Lynch’s state of mind. Even if it was admissible, it is conclusory
and its exclusion was not prejudicial.
Objection 127
“Chief Stehr told me that Ms. Moisa
uncovered some very serious discrimination concerns. Chief Stehr told me that despite numerous
allegations of discrimination, there would only be two small
investigations. I suggested to Chief
Stehr that there should be more investigations, but he disagreed. He then restated that he would only authorize
two small investigations.”
The bulk of this is inadmissible hearsay.
City interposed 281 objections. The trial court overruled seven of them and
sustained the rest. We see no
prejudicial error in the trial court’s rulings.
We conclude that Elfego’s contentions
are without merit and that the trial court did not err in granting the motion
for summary judgment.
appellant’s
appeal from the denial of the Disqualification Motion
Appellants contend that the trial
court erred in denying their motion to disqualify counsel for the City. For the reasons set forth below, we disagree.
The Pertinent Facts
City noticed the depositions of
appellants in June 2009 and concurrently served each of them with requests to
produce documents. Among the documents
produced was a 44-page statement by appellant Omar.
and also by Guillen. The Gomez
productions occurred on or about July 31, 2009.
We will refer to this document as the Statement.
During the first deposition, City’s
counsel posed a question to Omar about the Statement, which seems to have been
the first time that the Statement surfaced after its production. After some colloquy, Omar’s counsel Gresen
stated that the Statement might be privileged.
In a letter dated August 12, 2009, Gresen flatly asserted that it was
privileged, a position City’s counsel rejected in a letter responding to
Gresen’s August 12th communication.
The Statement referred to a number of
exhibits, some of which turned out to be confidential police personnel
records. A dispute later arose over
those records, resulting in City bringing a cross-complaint against Omar for
conversion.
The matter slumbered until December
22, 2009 when City, learning that Omar was seeking a protective order with
regard to the Statement, asked retired Judge Wayne, the discovery referee, to
have the issue briefed. City was still
contending that the Statement was not privileged. After the briefs were in and a hearing had
been held, the discovery referee recommended that City be ordered to return the
Statement, a recommendation the court adopted on March 15, 2010.
The motion to disqualify City’s two
law firms was filed on June 17, 2010.
We note that the standard of review
is abuse of discretion. (
Ins. Co. (2004) 124 Cal.App.4th 594, 601.)
City Acted Reasonably In Contending
that the Statement Was Not Privileged
We have examined the Statement that
has been filed in this court under seal.
We agree with the trial court that there is nothing about the Statement
that suggests that it was privileged. It
is by-and-large a chronological account of Omar’s career in the Burbank police
department from 1988 to 2009 and, as the trial court observed, the document
could have been prepared for many possible purposes. It is not marked “Confidential” or
“Privileged” at any point of its 44 pages and it is not directed to an
attorney. Litigation is not mentioned or
discussed. While there are four passing
references to meetings with a lawyer at pages 39, 41 and 42, these references
are very brief and completely neutral.
It is true that if a lawyer comes into
possession of a document that is clearly and indubitably privileged, the lawyer
is under a duty not to examine the document and must notify the possessor of
the privilege that the lawyer has the document.
(Rico v. Mitsubishi Motors Corp. (2007)
42 Cal.4th 807, 817.) But this is not
such a case.
This brings us to the observation that
Omar’s, rather his counsel’s, conduct between August and December 2009
certainly did not signal that Omar’s
side of this case considered the Statement either vital or privileged. The logical thing to have done in August,
once the Statement surfaced, was to demand the document back immediately and,
once this was refused, file an expedited motion in court. City was entitled to interpret Omar’s
inaction as a lack of zeal for the proposition that the Statement was
privileged. If Omar had doubts, City was
certainly entitled to have its
doubts.
There is No Chance that the Statement
Will Affect the Outcome of the Case
We begin with the observation that it
is far from clear that the Statement is privileged. We have already noted its principal features,
none of which suggests that it is privileged.
In essence, the Statement is a long litany of complaints about the
Burbank police department and a good number of its members. Every item of information in the Statement
could have properly been elicited in discovery.
Assuming, however, that the Statement is privileged, there are two
points to be made.
First, “‘Mere
exposure to the confidences of an adversary does not, standing alone, warrant
disqualification. Protecting the
integrity of judicial proceedings does not require so draconian a rule. Such a rule would nullify a party’s right to
representation by chosen counsel any time inadvertence or devious design put an
adversary’s confidences in an attorney’s mailbox.’” (State
Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 657.)
Second. “Since the purpose
of a disqualification order must be prophylactic,
punitive, the significant question is whether there exists a genuine likelihood
that the status or misconduct of the attorney in question will affect the
outcome of the proceedings before the court. Thus, disqualification is proper where, as a
result of a prior representation or through improper means, there is a
reasonable probability counsel has obtained information the court believes
would likely be used advantageously against an adverse party during the course
of the litigation.” (
Cal.App.3d 291, 308-309.)
That City’s lawyers have seen the
contents of the Statement could not have any effect on the outcome of the
case. The Statement contains no secrets
and no information that is otherwise unavailable. In fact, almost all of it involves
conversations with other people and some of it describes actions by others as
well as by Omar when in the company of others.
In a word, everything in the Statement is public knowledge.
There is, finally, the point that the court
in Gregori v. Bank of America, supra,
put very well: “Additionally, as courts
are increasingly aware, motions to disqualify counsel often pose the very
threat to the integrity of the judicial process that
[Citation.] Such motions can be
misused to harass opposing counsel [citation], to delay the litigation
[citation], or to intimidate an adversary into accepting settlement on terms
that would not otherwise be acceptable.”
(Gregori v. Bank of America, supra,
207 Cal.App.3d at pp. 300-301.) There is
really no explanation why Omar’s counsel waited ten months to file the motion
to disqualify counsel. Given that the
motivations behind such motions are usually hard to identify reliably, all one
can do is to note the delay and its pragmatic effect. And that was to inject new issues into a case
that already appeared to be failing.
Finally, we address the final issue
whether City used the Statement during the fall of 2009. Once the Statement came to light in August
and the tentative claim of privilege was asserted, the parties agreed that the
Statement would not be used by City until the issue of confidentiality had been
resolved. Omar contends that City
breached this agreement in several ways, which City denies.
As the trial court correctly observed,
the Statement could not be considered privileged until December 30, 2009, when
the discovery referee ordered that City return the Statement to Omar. Until then the matter was hotly contested
and, as we have observed, City acted reasonably in contesting the matter.
Without detailing them, City’s
disclaimers that it did not make use of the Statement are convincing. Nonetheless, if it made some use of the
Statement prior to December 30, 2009, it was entitled to do so. If Omar did not want this to happen, it was
up to his lawyer to act with dispatch to prevent it, which he did not.
Conclusion
The trial court’s order denying the
motion to disqualify counsel is supported by substantial evidence and was a
sound exercise of its discretion.
The judgment and the order denying
the motion to disqualify are affirmed.
City is to recover its costs in both appeals.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
Code section 12900 et seq.
Code section 3300 et seq. This claim has
been abandoned in the appeal.
