City of San Diego v. Superior Court of San Diego Cnty.

241 Cal. Rptr. 3d 604, 30 Cal. App. 5th 457
CourtCalifornia Court of Appeal, 5th District
DecidedDecember 19, 2018
DocketD073961
StatusPublished
Cited by20 cases

This text of 241 Cal. Rptr. 3d 604 (City of San Diego v. Superior Court of San Diego Cnty.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of San Diego v. Superior Court of San Diego Cnty., 241 Cal. Rptr. 3d 604, 30 Cal. App. 5th 457 (Cal. Ct. App. 2018).

Opinion

DATO, J.

*461As codified in Evidence Code section 950 et seq., the attorney-client privilege seeks to prevent the disclosure of confidential communications between the lawyer and the client. In the typical situation, where a question at trial or a pretrial discovery request seeks disclosure of arguably privileged information, an objection to the question or request is raised and the trial *607court rules on the objection based on whether the privilege applies. If the objection is overruled, the party or witness is ordered to answer or respond; if the objection is sustained, the question or request goes unanswered.

But what if the inquiring party somehow obtains an answer to the inquiry before the court has an opportunity to rule on the privilege question, and it is later determined that the privilege applies such that the objection would have been sustained? In many instances, the only available remedy that will preserve the integrity of the process and public respect for the administration of justice would be to disqualify counsel for the inquiring party in conjunction with ordering return of privileged documents and/or sealing of transcripts. Does it make a difference, however, if the answer obtained by the inquiring party included no information likely to affect the ongoing litigation? To put it another way, is disqualification of counsel necessarily the remedy *462even if the violation of the attorney-client privilege resulted in no actual disclosure of relevant information?

In this case, as part of an internal affairs investigation regarding the unauthorized disclosure of a confidential police report, the San Diego Police Department (Department) questioned plaintiff/real party Dana Hoover, a detective for the Department, regarding the content of communications between Hoover and an attorney representing her in an employment-related lawsuit against defendant/petitioner City of San Diego. Although Hoover invoked the privilege, the Department directed her to answer the internal affairs questions or face discipline and/or termination of employment. The trial court properly concluded that the City violated the attorney-client privilege when Department investigators insisted Hoover respond to questions despite her invocation of the privilege. A deputy city attorney attending the interview as an observer also violated the California State Bar Rules of Professional Conduct when she began questioning Hoover about her lawsuit without the permission of her lawyer in the case ( Rules Prof. Conduct, former rule 2-100 ).1

Disqualification of counsel, however-particularly the elected City Attorney-is a drastic remedy that should be ordered only where the violation of the privilege or other misconduct has a "substantial continuing effect on future judicial proceedings." ( Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 309, 254 Cal.Rptr. 853 ( Gregori ).) There must be a "reasonable probability" and "genuine likelihood" that opposing counsel has "obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation." ( Ibid. ) Here, the transcript of the internal affairs interview2 demonstrates that although relevant confidential information could in theory have been elicited in response to the internal affairs questions, in fact no such information was disclosed. Under these circumstances, because "a disqualification order must be prophylactic, not punitive" ( id. at pp. 308-309, 254 Cal.Rptr. 853 ), the drastic remedy of depriving a party of its counsel of choice was unwarranted. We therefore issue the writ as requested by the City.

*608*463FACTUAL AND PROCEDURAL BACKGROUND

In May 2014 Hoover filed a lawsuit against the City, her employer, alleging claims of employment-related harassment and retaliation. In particular, she claimed she suffered harassment and retaliation based on complaints she made about perceived investigative failures by the Department's homicide unit, of which she had been a member. In June 2015, Hoover was represented in her lawsuit by attorney Daniel M. Gilleon.

In late 2017, Gilleon agreed to represent a different client-the mother of a minor sexual assault victim-in a separate claim against the City. On behalf of this new client, Gilleon alleged that the Department failed to properly investigate the assault and then covered it up. Media outlets reported the claim. In particular, a March 2018 article in the Voice of San Diego referenced a "police report" obtained by the Internet news service.

The Voice of San Diego article prompted an investigation by the Department's internal affairs unit seeking to determine if and how the media obtained a confidential police investigative report. Suspicion focused on Hoover, and investigators scheduled an interview with her to determine whether she was the source of the leak. An initial interview was conducted by Sergeants Robert Gassman and John Huys on March 14, 2018. Hoover was accompanied by her union representative, Officer Mark Brenner. She was ordered to respond to the investigators' questions and was told at the outset that any refusal to answer could be treated as insubordination, subjecting her to discipline up to and including termination.

Although she had no involvement in the sexual assault case, Hoover admitted to accessing and reviewing the report. She denied, however, providing the report to or discussing its contents with anyone. At some point the investigators began to inquire about communications between Hoover and Gilleon. Brenner objected based on the attorney-client privilege. Recalling the earlier threats of discipline if she failed to cooperate, Hoover nonetheless began answering the questions.3 Brenner again objected and advised Hoover not to answer any further questions about the content of communications with her lawyer. At that point the investigators took a break and contacted their supervisor; when the questioning resumed they did not make any further inquiries about communications with Gilleon.

*464Later that same day, Sergeant Huys contacted Hoover, telling her that the City Attorney's office had concluded that the attorney-client privilege did not preclude questions about her conversations with attorney Gilleon as they related to the sexual assault investigation and the leaked police report. Hoover was ordered to return for a follow-up interview on March 22.

Meanwhile Gilleon learned of the internal affairs investigation and on March 16 sent an e-mail to Deputy City Attorney Michael J.

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Cite This Page — Counsel Stack

Bluebook (online)
241 Cal. Rptr. 3d 604, 30 Cal. App. 5th 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-san-diego-v-superior-court-of-san-diego-cnty-calctapp5d-2018.