Pending - Other Pending
Labor - Other Labor
HOLLY E. KENDIG
MONTEBELLO CITY OF
DOES 1 THROUGH 100
CITY OF MONTEBELLO
LAW OFFICES OF GREGORY W. SMITH
WELLS DIANA WANG
SMITH GREGORY WAYNE
ATKINSON ANDELSON LOYA RUUD & ROMO
TRINNAMAN JOHN GRANT
VANLIGTEN BARBARA SHELLEM
1/8/2018: Minute Order
5/3/2018: STIPULATION TO CONTINUE MEDIATION COMPLETION DATE; ETC.
10/29/2018: Ex Parte Application
10/29/2018: Minute Order
10/30/2018: Notice of Ruling
12/7/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
1/25/2019: Stipulation and Order
1/25/2019: Stipulation and Order
3/1/2019: Minute Order
3/18/2019: Stipulation and Order
3/26/2019: Minute Order
4/2/2019: Ex Parte Application
4/3/2019: Minute Order
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore[+] Read More [-] Read Less
DocketMinute Order ( (Final Status Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore[+] Read More [-] Read Less
DocketOpposition (Plaintiff's Opposition to Defendant's Motion in Limine J); Filed by Vernon Creswell (Plaintiff)[+] Read More [-] Read Less
DocketWitness List (AMENDED JOINT TRIAL WITNESS LIST); Filed by City of Montebello (Defendant)[+] Read More [-] Read Less
DocketJury Instructions; Filed by City of Montebello (Defendant)[+] Read More [-] Read Less
DocketStatement of the Case; Filed by City of Montebello (Defendant)[+] Read More [-] Read Less
DocketExhibit List; Filed by City of Montebello (Defendant)[+] Read More [-] Read Less
DocketOpposition (Defendant's Opposition to Plaintiff's Motion in Limine No. 1 to Exclude 2018 Exam Results)[+] Read More [-] Read Less
DocketDeclaration (Declaration of Barbara S Van Ligten in Support of Defendant's Opposition to Motion in Limine No. 1); Filed by City of Montebello (Defendant)[+] Read More [-] Read Less
DocketCASE MANAGEMENT STATEMENT[+] Read More [-] Read Less
DocketAnswer; Filed by City of Montebello (Defendant)[+] Read More [-] Read Less
DocketANSWER OF DEFENDANT CITY OF MONTEBELLO TO COMPLAINT FOR DAMAGES[+] Read More [-] Read Less
DocketPROOF OF SERVICE FOR DEFENDANT CITY OF MONTEBELLO[+] Read More [-] Read Less
DocketProof of Service (not Summons and Complaint); Filed by Vernon Creswell (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
DocketNUT1CE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE[+] Read More [-] Read Less
DocketCOMPLAINT FOR DAMAGES: 1. RETALIATION IN VIOLATION OF THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT (GOV. CODE 12940, ET SEQ.) ;ETC[+] Read More [-] Read Less
DocketComplaint; Filed by Vernon Creswell (Plaintiff)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
Case Number: ****3051 Hearing Date: November 3, 2021 Dept: 26
CITY OF MONTEBELLO; et al.,
Case No.: ****3051 (consolidated with 20STCV49254)
Hearing Date: November 3, 2021
[TENTATIVE] ORDER RE:
DEFENDANT’S MOTION TO STAY PROCEEDINGS
On August 22, 2017, Plaintiff Vernon Creswell (“Plaintiff”) filed the lead employment action (“Creswell II”) against Defendant City of Montebello (“Defendant” or “City”). In Creswell II, Plaintiff asserts two causes of action for (1) retaliation in violation of the Fair Employment and Housing Act (“FEHA”) and (2) whistleblower retaliation under Labor Code section 1102.5.
On December 28, 2020, Plaintiff filed the second action 20STCV49254 (“Creswell III”) against (the same) Defendant asserting causes of action for discrimination under FEHA and violations of the Firefighter’s Bill of Rights. Specifically, in Creswell III, Plaintiff asserts seven causes of action for (1) retaliation in violation of FEHA, (2) Failure to Accommodate Disability in Violation of FEHA, (3) Failure to Engage in the Interactive Process in Violation of FEHA, (4) Violation of Government Code ; 3253(g), (5) Violation of Government Code ; 3255, (6) Violation of Government Code ; 3256, (7) Violation of Government Code ; 3253(i).
On January 28, 2021, Defendant filed a notice of related cases, which the court granted on February 16, 2021. (Minute Order 2/16/21.) On March 16, 2021, the Court consolidated Creswell II and Creswell III. (Order 3/16/21.) Trial is currently set for January 3, 2022.
On September 13, 2021, Defendant filed the instant motion to stay the proceedings. On October 20, 2021, pursuant to ex parte application by Defendant, the Court advanced the hearing for the instant motion to November 3, 2021. (Minute Order 10/20/21.) On October 27, 2021, Plaintiff filed an opposition. On October 28, 2021, Defendant filed a reply.
Plaintiff alleges in Creswell II that Plaintiff is an African-American Fire Captain employed by Defendant. (Creswell II Complaint ¶¶ 2, 13.) Plaintiff filed a previous lawsuit for racial harassment and prevailed at trial (“Creswell I”). (Id. ¶¶ 11-12.) Plaintiff went through a process to become promoted to Battalion Chief, but was denied this position because of a biased examination process and denied leadership opportunities that would increase his chances of a promotion. (Id. ¶¶ 13-18.)
Plaintiff alleges in Creswell III that Plaintiff is an African-American Fire Captain employed by Defendant. (Creswell III Complaint ¶ 15.) Plaintiff filed a previous lawsuit for racial harassment and prevailed at trial (“Creswell I”) and has filed another action for denying promotional opportunities as retaliation for the first suit (“Creswell II”). (Id. ¶¶ 16-20.) On August 11, 2020, Plaintiff was placed on administrative leave based on alleged wrongdoing in showing another Fire Department Employee on August 10, 2020, which line at the Montebello DMV had traditionally allowed Montebello Fire Department staff to conduct personal and/or fire department-related business in an expedited manner. (Id. ¶ 21.) It was standard for Fire Department Employees to take the express DMV line, and it was allowed and encouraged by Fire Department Leadership. (Id. ¶¶ 22-27.) However, Plaintiff was singled out as retaliation for the previous actions, Creswell I and Creswell II, and for complaining about race discrimination or harassment in a correspondence sent to Defendant’s City Council Members, the Mayor, City Manager and City Human Resources Director. (Id. ¶¶ 28, 30-31.) Defendant refused to provide written notice of what Plaintiff was accused of doing before Plaintiff was interviewed by a third-party investigator, which was against Defendant’s policy manual. (Id. ¶ 38.)
In September 2020, Plaintiff was interviewed by a third-party investigator who “made findings that were false and/or not supported by the evidence, in furtherance of the City’s and/or Fire Department's desire to retaliate against Plaintiff. For example, the City’s third-party investigator found that other Fire Department employees who obtained a “Real ID” at the DMV, in the expedited line during work hours, could have been conducting work-related DMV business because they were ‘potentially related to the job’ as the City’s third-party investigator put it.” (Id. ¶ 40.) “Additionally, the City’s third-party investigator falsely or misleadingly stated in his report that [Plaintiff] ‘assumed’ that the Fire Department staff who had asked for help at the DMV was there for personal business, while failing to mention that [Plaintiff] clearly stated that he did not know whether she was there for personal or Fire Department-related business until after she got to the DMV window and started asking for help, and even then it was not totally clear.” (Id. ¶ 41.)
“Moreover, the City’s third-party investigator misleadingly suggested that [Plaintiff] was ‘out of service’ during the DMV visit, when in reality [Plaintiff] clearly stated in the interview / interrogation that he was able to respond to any calls (there were none) during the 5 or 10 minutes that he was in the DMV, and had 2 forms of communication on him inside the DMV, and an additional form inside the fire truck which was fully loaded with the crew and on ‘stand-by’ and ready to deploy if needed.” (Id. ¶ 42.)
“The City’s third-party investigator also failed to investigate some of the Fire Department leadership’s ordering Firefighters while on duty and using fire department equipment to go outside of the city to attend a birthday party and/or parade, and go outside of the City to pick up expensive watches from outside of the City while on duty and using Fire Department equipment.” (Id. ¶ 43, [underline in original].)
On December 3, 2020, Fire Chief Mr. Pelaez sent Plaintiff a notice of intent to terminate employment and provided Plaintiff only seven days to respond instead of the required 10 under Montebello Municipal Code Section 2.60.210(A). (Id. ¶ 44.) “On or about December 9, 2020, Plaintiff notified the City of his Total Temporary Disability, with a letter signed by his physician. The City refused to engage in the interactive process and/or accommodate Plaintiffs request that the Skelly hearing take place at a later date in light of Plaintiff's disability.” (Id. ¶ 45.)
“The City also refused to permit Plaintiff’s request to record the upcoming putative Skelly hearing, as required by the Firefighters’ Bill of Rights (Govt. Code Section 3253(g)) for any interrogation which may lead to discipline.” (Id. ¶ 46.) In addition, “[Plaintiff] was not timely provided with certain adverse comments from the Notice of Intent to Terminate, and not asked to sign for them, and was not provided with 30 days to respond to them, in violation of Govt. Code Sections 3255 and 3256.” (Id. ¶ 51.) “The City refused to accommodate [Plaintiff]’s request that the Skelly hearing (currently unilaterally scheduled by the City for December 30, 2020) be set at a time when [Plaintiff]’s counsel is available, in a further violation of [Plaintiff]’s rights, pursuant to Govt. Code Section 3253(i).” (Id. ¶ 52.)
“Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.)
By way of this motion, Defendant seeks (1) “an Order staying these proceedings through March 1, 2022 given the concurrent and pending administrative and personnel matters pursued by the plaintiff before the Civil Service Commission which may result in inconsistent judgments or verdicts if these consolidated actions are allowed to go forward at this time; or, in the alternative, (2) an Order continuing the Final Status Conference, currently set for December 8, 2021 and the Trial, currently set for January 3, 2022 and all related motion and discovery cutoff dates based upon the new and continued trial date given that Defense counsel recently substituted into the action will require additional time to prepare for trial and get up to speed on the case.” (Notice at p.2:6-13.)
A Stay is Warranted Pending the Administrative Actions
Here, Plaintiff was put on paid administrative leave on August 11, 2020. (Doumanian Decl. ¶ 4.) As of filing the instant motion, Plaintiff had a pending appeal with the Civil Service Commission with regard to the administrative leave to be heard in October 2021. (Doumanian Decl. ¶ 5.)
On December 3, 2020, Plaintiff received a notice of intent to terminate. (Doumanian Decl. ¶ 6.) In response, Plaintiff initiated the Skelly Process with a hearing taking place in January 2021 which upheld Plaintiff’s Termination. (Doumanian Decl. ¶ 6, Ex. C [Plaintiff’s Skelly Written Response].) On January 20, 2021, Plaintiff filed an Appeal to the Civil Service Commission challenging his termination. (Doumanian Decl. ¶ 7, Ex. D. [Plaintiff’s Termination Appeal].)
On April 26, 2021, Plaintiff filed an administrative charge with the Department of Fair Employment and Housing (“DFEH”) alleging claims under FEHA. (Doumanian Decl. ¶ 8, Ex. E [Plaintiff’s DFEH Complaint].) On April 27, 2021, DFEH initiated an investigation of Plaintiff’s administrative charge and requested information from Defendant. (Doumanian Decl. ¶ 9, Ex. F [DFEH Request for Information].) Currently the DFEH investigation is still pending. (Doumanian Decl. ¶ 9.)
In sum, there are three administrative actions regarding the instant action currently pending. The first, the appeal of the administrative leave and failure to promote – as alleged in Creswell II – was scheduled for October 2021 and will have likely been heard by the hearing on the instant motion. However, the second appeal of the termination – as alleged in Creswell III – is not scheduled until March 2022. A reversal of the termination and reinstatement of Plaintiff by the Civil Service Commission would likely moot much of the damages sought in the consolidated action as a result of the termination or result in the reversal of such damages if Plaintiff prevails at trial on the current date.
Third, the ongoing investigation of Plaintiff’s DFEH claim could result in a finding by the DFEH that moots the FEHA claims. Moreover, exhaustion of administrative remedies – i.e., the completion of an investigation by DFEH – is required for the FEHA claims. “In order to bring a civil action under FEHA, the aggrieved person must exhaust the administrative remedies provided by law.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121; accord Romano v. Rockwell Int'l, Inc. (1996) 14 Cal.4th 479, 492.) Exhaustion in this context requires filing a written charge with DFEH within one year of the alleged unlawful employment discrimination and obtaining notice from DFEH of the right to sue. (Romano, supra, 14 Cal.4th at 492; Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) The scope of the written administrative charge defines the permissible scope of the subsequent civil action. (Yurick, supra, 209 Cal.App.3d at pp.1121–1123.)
Given that these pending administrative actions could moot much of the instant consolidated action, a stay is warranted pending the outcome of these administrative actions.
Time to Bring the Action to Trial
In opposition, Plaintiff contends that the five-year rule would not be tolled by any stay and that an action must be brought to trial by August 2, 2022. (Opp. at pp.6-7.)
Pursuant to Code of Civil Procedure section 583.310, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” (Id.) Under Emergency related to COVID-19, Rule 10, “[n]otwithstanding any other law, including Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.” (Id.) Pursuant to Code of Civil Procedure section 583.340(b), the computation for the five-year rule does not include the time when the “[p]rosecution or trial of the action was stayed or enjoined.” (Id.) “[S]ubdivision (b) of section 583.340 governs only complete stays that are ‘used to stop the prosecution of the action altogether.’ [Citation.]” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 730.)
Here, the earliest action – Creswell II – was filed on August 22, 2017. Accordingly, under Code of Civil Procedure section 583.310 and Emergency Rule 10, Plaintiff would ordinarily have until February 22, 2023 to bring the instant action to trial. However, a complete stay of the proceeding would extend this time even further. Accordingly, as the time to bring the action to trial is approaching, a complete stay is warranted pending the outcome of the administrative actions.
CONCLUSION AND ORDER
Based on the foregoing, Defendant City of Montebello’s motion to stay is GRANTED. The instant action is STAYED IN ITS ENTIRETY pending the ongoing administrative proceedings. All currently pending motions are hereby taken off calendar. When the stay is lifted, the moving party for each motion is to contact the Judicial Assistant for Department 26 to place the motion(s) back on calendar; in connection with such request, after the lifting of the stay, the moving party must file and serve a list of motions that were taken off calendar, identified by name of the motion and corresponding CRS reservation number, that the moving party requests be placed back on calendar. All upcoming unused Court Reservation System reservations for motions are hereby cancelled. The trial date of January 3, 2022 and Final Status Conference date of December 8, 2021 are vacated.
A status conference regarding the status of the ongoing administrative proceedings and lifting of the stay is set for March 1, 2022 at 8:30 am.
Moving Party is to give notice and file proof of service of such.
DATED: November 3, 2021 _____________________________
Judge of the Superior Court
 The Court notes that no party has presented evidence that Plaintiff has received a right to sue letter from the DFEH as of this hearing.
Case Number: ****3051 Hearing Date: November 27, 2019 Dept: 26
Superior Court of California
CITY OF MONTEBELLO and does 1 through 100,
Case No.: ****3051
Hearing Date: November 27, 2019
[TENTATIVE] order RE:
MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL LINCOLN W. ELLIS
The Court has considered the moving, opposing, reply, and supplemental papers.
In this employment action, Plaintiff Vernon Creswell (“Plaintiff”) alleges that he has been subjected to retaliation for filing a prior lawsuit for racial harassment, discrimination, and retaliation against Defendant City of Montebello (“Defendant”)
On August 9, 2017, Plaintiff filed a government claim with Defendant and identified Chief Fernando Pelaez (“Chief Pelaez”) as a witness to his claims. (Van Ligten Decl. Ex. A. at 3:23-24)
On August 22, 2017, Plaintiff filed the operative complaint asserting two causes of action: (1) retaliation in violation of the Fair Employment and Housing Act (“FEHA”) and (2) whistleblower retaliation under Labor Code section 1102.5.
Plaintiff alleges in his complaint as follows. Plaintiff is an African-American Fire Captain employed by Defendant. (Complaint ¶¶ 2, 13.) Plaintiff filed a previous lawsuit for racial harassment and prevailed at trial. (Id. ¶¶ 11-12.) Plaintiff went through a process to become promoted to Battalion Chief, but he alleges that he was denied this position because of a biased examination process and denied leadership opportunities that would increase his chances of a promotion. (Id. ¶¶ 13-18.)
On April 18, 2019, Lincoln W. Ellis (“Ellis” or “Counsel”) of the Law Office of Lincoln W. Ellis associated with Plaintiff’s then lead counsel Gregory W. Smith of the Law Offices of Gregory W. Smith (“Smith”).
On July 30, 2018, Plaintiff named Chief Pelaez as a witness in Plaintiff’s Response to Form Interrogatories – General. (Van Ligten Decl. Ex. B at Interrogatory 12.1.)
On April 30, 2019, Plaintiff named Chief Pelaez as a witness in Plaintiff’s Second Supplemental Response to Form Interrogatories – Employment Law. (Id. Ex. C at Interrogatory 208.2.)
On May 3, 2019, the parties filed a joint witness list in which both parties identified Chief Pelaez as a witness. (Id. Ex. F.)
On May 30, 2019 at the Final Status Conference, Defendant informed the Court and Plaintiff that Chief Pelaez would be Defendant’s client representative throughout the trial. (Id. Ex. I at p. 30.)
On June 3, 2019, Smith substituted out of the case, leaving Ellis as counsel of record.
On October 1, 2019, Defendant filed this motion to disqualify Ellis and his firm because of a conflict of interest. Specifically, Defendant asserts that Ellis has a conflict of interest because his former co-counsel Smith had obtained confidential information about Chief Pelaez during Smith’s former representation of Chief Pelaez, that could be disclosed or misused during Chief Pelaez’s cross-examination at trial.
On October 18, 2019, Plaintiff opposed.
On October 23, 2019, Defendant filed its reply.
On October 30, 2019, the parties appeared before the Court for a hearing. The Court continued the hearing to November 27, 2019 and ordered supplemental briefing on the issue of whether Defendant has met its burden that a substantial relationship between Smith’s former representation of Chief Pelaez and the instant action exists to justify disqualification. The Court ordered a supplemental briefing schedule as follows: (1) Defendant to file supplemental brief by November 8, 2019; (2) Plaintiff to file supplemental opposition by November 15, 2019; and (3) Defendant to file supplemental reply brief by November 20, 2019
On November 8, 2019, Defendant filed its supplemental brief.
On November 18, 2019, Plaintiff filed his supplemental opposition.
On November 20, 2019, Defendant filed its supplemental reply brief.
Trial is scheduled for May 4, 2020.
Code of Civil Procedure section 128, subdivision (a)(5) authorizes the Court “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.”
This authority necessarily includes disqualifying an attorney. (Metro-Goldwyn Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1837–1838.)
The Court of Appeal has stated:
The issue of disqualification ultimately involves a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern, though, must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar. The recognized and important right to counsel of one's choosing must yield to considerations of ethics that run to the very integrity of our judicial process.
(Id. at p. 1838, citation marks omitted.)
“Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court.” (Henriksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th 109, 113.) “In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand.” (Ibid.)
Whether the Court should consider Plaintiff’s untimely supplemental opposition
As a preliminary matter, the Court notes that Plaintiff’s supplemental opposition was due on November 15, 2019. Plaintiff filed and untimely supplemental opposition on November 18, 2019. Plaintiff does not present any explanation for the late filing of his supplemental opposition. Nevertheless, Plaintiff did serve his supplemental opposition timely on November 15, 2019. Therefore, the Court overlooks the late filing.
The Court reminds the parties going forward to comply with deadlines set by the Court.
Whether Defendant has standing to disqualify counsel
Plaintiff argues that Defendant does not have standing to bring this motion because Defendant is not Counsel’s former client. Plaintiff does not provide any supporting authority.
The Court has inherent authority to disqualify an attorney in furtherance of justice. (Code Civ. Proc., ; 128, subd. (a)(5).) Additionally, a party may bring a motion asking the court to remove an opposing attorney from representing a client. (See, e.g., In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561.) “[N]o California case has held that only a client or former client may bring a disqualification motion.” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204.) Federal courts generally limit standing to bring disqualification motions to clients or former clients, but California courts permit a nonclient to meet standing requirements to bring a motion to disqualify based on a third-party conflict of interest or other ethical violation. (Ibid.)
Considering the above caselaw, Defendant has independent standing to bring this motion. Additionally, the Court notes that Chief Pelaez, who is a third-party expected to testify at trial, has submitted a declaration indicating a potential conflict of interest concerning possible confidential information that could be used against him. (Pelaez Decl. ¶ 6.)
Timeliness of the motion
Plaintiff argues that Defendant’s motion is untimely, and Plaintiff would be severely prejudiced if the motion is granted now. Defendant argues that it did not delay in bringing this motion because only Smith could have realized there was a conflict of interest; once Smith informed Defendant of the conflict of interest, Defendant informed the Court.
Belated disqualification motions can have a disruptive effect on litigation. (See People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 n.2.) Delay in seeking relief might affect a decision on a disqualification motion. (Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 847.) The initial burden is on the party opposing the motion to show prima facie evidence of unreasonable delay in bringing the motion, and once shown, the burden shifts back to the party seeking disqualification to justify the delay. (Western Continental Operating Co. v. Natural Gas Corp. (1989) 212 Cal.App.3d 752, 763–764.) “Delay will not necessarily result in the denial of a disqualification motion; the delay and the ensuing prejudice must be extreme.” (Id. at p. 764.)
Here, there is no dispute that Defendant knew that Plaintiff identified Chief Pelaez as a witness to the alleged violations in discovery responses. (Van Ligten Decl. Ex. B and C.) All parties anticipated that Chief Pelaez would testify at trial. (Id. Ex. F.) However, Plaintiff submits no evidence that Defendant knew or should have known that Smith had a substantial relationship—let alone any relationship—with Chief Pelaez. Instead, the knowledge of this relationship was in Smith’s exclusive knowledge. Once Defendant became aware of this knowledge after Smith informed Defendant of it (Van Ligten Decl. Ex. K), Defendant promptly made this motion. Therefore, Plaintiff does not meet his burden to show Defendant unreasonably delayed in bringing the motion.
Accordingly, Defendant’s motion is timely.
Whether Smith admitted Counsel has a conflict of interest
Defendant argues that Counsel has a conflict of interest because former co-counsel Smith admitted that Counsel has a conflict of interest.
Lawyers owe ethical duties to their clients and former clients not to reveal confidential information. (See Rules Prof. Conduct, rule 1.6(a), 1.7, 1.9.)
As a preliminary matter, there is no dispute that Smith obtained unspecified confidential information of Chief Pelaez during his former representation of Chief Pelaez. (Pelaez Decl. ¶ 4.) There is also no dispute that Smith and Counsel were associated. However, these undisputed facts do not necessarily mean that Smith admitted that Counsel has a conflict of interest.
Defendant argues that Smith admitted that Counsel has a conflict of interest through a phone call and email.
Defendant’s counsel declares that Smith told her telephonically that he had a prior conflict of interest in this action because of his prior representation of Chief Pelaez. (Van Ligten Decl. ¶ 10.) As part of his opposition, Plaintiff objects to this statement as hearsay. (See Opposition 9:1-17; see also Smith Decl. ¶ 8 [denying Defendant’s counsel’s account of the phone call].) Defendant requests that the Court disregard that objection because Plaintiff did not file the evidentiary objections in a separate document. (Reply 6:27-28.) Although it is better practice to make evidentiary objections in a separate document, the Court is unaware of any authority (and Defendant does not otherwise cite any) requiring Plaintiff to do so in this motion. (Cf. Cal. Rules of Court, rule 3.1354(b) [specific format requirements for evidentiary objections to summary judgment/adjudication motions].)
In Defendant’s supplemental brief, Defendant argues that Smith’s statements are not hearsay because they are evidence of a prior inconsistent statement, or alternatively, are being offered to show that Smith believed there was a substantial relationship between Smith’s prior representation of Chief Pelaez and his representation of Plaintiff. (Supplemental brief 6:24-28.) In response, Plaintiff has renewed his objection in his supplemental opposition, arguing the statement against interest exception does not apply because Smith was intending to withdraw from the case (and thus Smith’s statement had no effect on his relationship to the case) and alternatively because Defendant is offering it for the truth of the matter asserted. (Supplemental opposition 6:24-27.)
Here, the statements made on the phone—even if admissible—do not show that Smith admitted that Counsel had a conflict of interest. At most, they show Smith admitted to his own conflict of interest.
Regarding the email between Smith and Defendant’s counsel, the email reveals an admission by Smith that he had a conflict of interest. (Van Ligten Decl. Ex. K.) The email does not otherwise show an admission of Counsel’s conflict of interest. (Ibid.; see also Smith Decl. ¶ 9 [denying Defendant’s counsel’s account of the email])
Accordingly, the Court finds that Smith has not admitted or stated that Counsel has a conflict of interest.
Smith’s conflict of interest is imputed to Counsel if there is a substantial relationship between Smith’s representation of Chief Pelaez and Smith’s successive representation of Plaintiff
Alternatively, Defendant argues that Smith’s conflict of interest is imputed to Counsel. Plaintiff argues that Smith’s representation of Chief Pelaez was not substantially related to this action, and thus, Counsel is not prohibited from continuing his representation of Plaintiff in this action.
A lawyer’s ethical duty to their clients and former clients not to reveal confidential information extends to other associated lawyers. (Rules Prof. Conduct, rule 1.10(a).) Rule 1.10 of the California Rules of Professional Conduct states in pertinent part: (a) While lawyers are associated in a firm,* none of them shall knowingly* represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9, unless
. . .
(2) the prohibition is based upon rule 1.9(a) or (b) and arises out of the prohibited lawyer's association with a prior firm,* and
(i) the prohibited lawyer did not substantially participate in the same or a substantially related matter;
(ii) the prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom; and
(iii) written* notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this rule . . .
(b) When a lawyer has terminated an association with a firm,* the firm* is not prohibited from thereafter representing a person* with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm,* unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm* has information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter.
. . . .
A conflict of interest affecting a lawyer can also disqualify a lawyer within the same firm. (See Flatt v. Superior Court (1994) 9 Cal.4th 275, 283 (Flatt).) This extends to attorneys associated with each other. (See Pound v. DeMera DeMera Cameron (2005) 135 Cal.App.4th 70, 76.)
Because Smith has substituted out of the case and is no longer associated with Counsel, Rule 1.10(b) is the applicable provision. Thus, the issue is whether this action is “substantially related to that in which the formerly associated lawyer [i.e., Smith] represented the client [i.e., Chief Pelaez].” (Rules Prof. Conduct, rule 1.10(b)(1).) If it is, then the Court can disqualify Counsel.
“In order to disqualify the attorney, the former client must show that the subjects of the successive representations are substantially related.” (Khani v. Ford Motor Co. (2013) 215 Cal.App.4th 916, 920.)
A “substantial relationship” exists whenever the “subject matters” of the prior and current representations are linked in some rational manner. (Flatt, supra, 9 Cal.4th at 283.)
Two matters are “the same or substantially related” if they involve the same transaction or legal dispute or other work performed by the lawyer for the former client and by virtue of the nature of the former representation or the relationship of the attorney to his or her former client, confidential information material to the current dispute would normally have been imparted to the attorney or to subordinates for whose legal work he or she was responsible. (Rules Prof. Conduct, rule 1.9, Comment 3; see also Flatt, supra, 9 Cal.4th at 283.)
Where attorney and former client were in a “direct” relationship, actual possession of confidential information is presumed:
If the relationship between the attorney and the former client is shown to have been direct—that is, where the lawyer was personally involved in providing legal advice and services to the former client—then it must be presumed that confidential information has passed to the attorney and there cannot be any delving into the specifics of the communications between the attorney and the former client in an effort to show that the attorney did or did not receive confidential information during the course of that relationship. As a result, disqualification will depend upon the strength of the similarities between the legal problem involved in the former representation and the legal problem involved in the current representation.
(Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 709 (Jessen) [italics added].)
Here, as a preliminary matter, there is no dispute that Smith’s former representation of Chief Pelaez was “direct” and therefore it is presumed he possesses confidential information from Pelaez. (Jessen, supra, 111 Cal.App.4th at 709.) However, disqualification does not merely depend on the possession of confidential information. Defendant must still meet its burden to show the confidential information is relevant and material to the present representation. (Farris v. Fireman's Fund Ins. Co. (2004) 119 Cal.App.4th 671, 680 [material confidential information is that which is “directly at issue in” or has “some critical importance to, the second representation”].) Therefore, Defendant’s reliance on Jessen is incomplete. (Supplemental brief 4:6-5:2.) Defendant cannot simply rely on the existence of a direct relationship between Pelaez and Smith but must show that the information obtained during that representation is relevant and material to the present representation.
It is unclear what Smith’s former representation of Chief Pelaez involved other than Smith’s declaration that it was “brief” and has “nothing to do with [this action].” (Smith Decl. ¶ 5.) Nevertheless, based on both Smith and Counsel’s focus of employment litigation and no denial by Smith, it is possible that Smith’s representation of may have been of a similar nature to the instant action.
However, Defendant has the burden to demonstrate a substantial relationship exists. (Flatt, supra, 9 Cal.4th at 283.) Defendant contends that Smith’s subsequent disqualification demonstrates that there is a substantial relationship. The Court disagrees. Defendant does not submit any specific evidence showing that the matters are substantially related. The Court recognizes that Defendant’s counsel “did not feel that it was appropriate to inquire further and/or to force Chief Pelaez to disclose [information regarding Smith’s legal representation of Chief Pelaez].” (Van Ligten Supplemental Decl. ¶ 5.) However, Defendant has failed to identify any information about the relationship between Pelaez’s matter and the instant action despite having been presented an additional opportunity to do so. (Id. ¶ 4.) The Court will not speculate that Smith represented Chief Pelaez in an employment issue or something “directly at issue in” or has “some critical importance to, the second representation,” considering that lawyers are often retained for consultation on a wide variety of other issues. It is Defendant’s burden to demonstrate a substantial relationship exists. Defendant cannot otherwise extrapolate Smith’s decision to withdraw from this case as an indication that there must be a substantial relationship between Smith’s former representation of Chief Pelaez to this case.
Additionally, the Court finds Smith’s declaration persuasive on the issue of whether the confidential information obtained has some critical importance to the second representation. In his declaration, Smith indicates that he was concerned of a possible cross-examination based on his earlier representation:
6. My main concern when I learned that Pelaez would be a central witness for the City in the current case, was that I might have to cross-examine him if he made false statements concerning my earlier representation of him. This was a purely hypothetical situation that could have arisen, but I do not believe my earlier representation of him has any relevancy to the current case.
(Smith Decl. ¶ 6.) Additionally, Smith has submitted a supplemental declaration that indicates further that the cross-examination would be on collateral issues:
. . . Actually, the confidential information I have about Chief Pelaez has absolutely nothing to do with the current Creswell case. My concern was that I might have to use the confidential information regarding Pelaez for impeachment depending on what Pelaez said during his direct testimony. At best this impeachment would have been collateral to the case, but it was sufficient enough to cause me concern and therefor seek removal from the case. There was no certainty that I would have to had to use any of the confidential information I received from Pelaez during the Creswell trial.
(Smith Supplemental Decl. ¶ 7.)
Notably, Smith declares that the information he obtained might have been used to cross-examine Pelaez about the representation itself, and not any facts gained during the representation. Smith’s decision to withdraw from this case does not otherwise show that there is a substantial relationship between the cases or that he obtained confidential information material to the current dispute.
Additionally, the Court does not find it appropriate to apply the principles of Hernandez v. Paicius (2003) 109 Cal.App.4th 452 (Hernandez), disapproved of by People v. Freeman (2010) 47 Cal.4th 993, here. In Hernandez, disqualification was warranted in a medical malpractice action where an attorney representing both defendant and plaintiff's medical expert cross-examined the expert about malpractice cases pending against him, which were the very cases for which the attorney's firm was currently providing the expert's defense. The representation of Chief Pelaez here is different, and the concerns of competing obligations of the duty of loyalty are not applicable here.
Further, the Court notes that disqualification is a drastic measure that should not be taken simply out of the appearance of impropriety, and it is only justified where the misconduct will have a continuing effect on judicial proceedings. (Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1711.) Here, as noted above, the Court does not find that Defendant has met its burden. Additionally, although an attorney’s knowledge of confidential information is presumed when imputed by association, the Court notes that disqualification may be avoided where the lawyer can show there was no opportunity for confidential information to be divulged. (Goldberg v. Warner/Chappell Music, Inc. (2005) 125 Cal.App.4th 752, 759-760.) While the Court declines to rule whether this limited exception applies here because it is unnecessary to the outcome of this motion, the Court does note that Smith and Counsel did not share office space, did not share access to files physically or electronically, and both Smith and Counsel declare they have not talked about Smith’s representation of Pelaez. (Smith Decl. ¶¶ 7, 10; Ellis Decl. ¶ 2.)
Accordingly, the Court finds that Defendant has failed to put forth sufficient evidence supporting a finding that Counsel should be disqualified as counsel for Plaintiff.
Prejudice to Defendant
Defendant also argues that it will be prejudiced if Counsel is allowed to represent Plaintiff. However, Defendant does not satisfactorily explain why any apparent prejudice, assuming Defendant demonstrates there is any notwithstanding the Court’s analysis above, justifies disqualification here. Chief Pelaez’s unspecified concern of Counsel using confidential information against him, which the Court finds unlikely, can be addressed at the appropriate time at trial if that issue arises. Additionally, the Court notes that Chief Pelaez declares that he does not consent to the use of confidential information -- not that his fear is keeping him from testifying at trial.
The Court declines to address Plaintiff’s arguments about prejudice if Counsel is disqualified because they are unnecessary based on the above.
CONCLUSION AND ORDER
The Court denies Defendant’s motion to disqualify Plaintiff’s counsel Lincoln W. Ellis and the firm Law Office of Lincoln W. Ellis as counsel in this case.
Defendant is ordered to provide notice of this order and file proof of service of such.
DATED: November 27, 2019 ___________________________
Judge of the Superior Court
 All citations to Plaintiff’s opposition papers are to the amended opposition papers unless otherwise noted.
 Defendant does not argue that Counsel himself admitted to a conflict of interest. If he had, the Court would resolve this dispute differently.
 The Court can decide this issue without need to rule on any evidentiary objection to the email.
 An asterisk (*) identifies a word or phrase defined in the terminology rule (rule 1.0.1).
 Defendant argues that Smith’s declaration admits that Smith’s representation of Chief Pelaez involved Chief Pelaez’s employment of the City of Montebello as a Fire Captain and/or as a witness for Plaintiff’s earlier litigation. (Supplemental brief 7:16-18.) However, this argument misreads Smith’s declaration. Smith declared that Chief Pelaez was a Fire Captain and a witness of the allegations at the time of the representation. (Smith Decl. ¶ 5.) Smith does not declare they were related to the instant action.
 Defendant relies on Smith’s statements as an apparent admission of a substantial relationship. (Supplemental brief 5:17-6:9.) However, Smith’s statements show that Smith was concerned of a possible conflict of interest, and do not reflect an admission he had a conflict of interest. Further, Smith does not admit and Defendant does not otherwise meet its burden to show that the conflict of interest was because Pelaez’s matter was substantially related to the instant action.
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