Doe v. Superior Court

• Court: California Court of Appeal
• Decided: June 13, 2019
• Docket: D075331
• Status: Published

Opinion

Filed 6/13/19

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JANE DOE, D075331

Petitioner,

v. (San Diego County Super. Ct. No. 37-2017-00006511-CU-OE-CTL) THE SUPERIOR COURT OF SAN DIEGO COUNTY,

Respondent;

SOUTHWESTERN COMMUNITY COLLEGE DISTRICT et al.,

Real Parties in Interest.

ORIGINAL PROCEEDINGS in mandate following granting of motion to

disqualify counsel. Eddie C. Sturgeon, Judge. Petition granted.

Manuel Corrales, Jr., for Petitioner.

Walsh & Associates and Matthew Wallin for Real Party in Interest Southwestern

Community College District.

Carpenter, Rothans & Dumont and Justin Reade Sarno for Real Party in Interest

Joseph Martorano. Plaintiff/petitioner Jane Doe, a student-employee in the campus police department

at Southwestern College, brought claims relating to sexual harassment and sexual assault

against defendants/real parties Southwestern Community College District and three

District employees. Her complaint also alleged sexual harassment of two other female

District employees, which was presumably relevant to Doe's allegations because it

provided notice to the District regarding similar misconduct by at least one of the

involved employees, campus police officer Ricardo Suarez. Before her noticed

deposition could take place, one of those female employees, Andrea P., was contacted by

one of Doe's lawyers, Manuel Corrales, Jr. When they discovered this contact,

defendants moved to disqualify Corrales for violating Rule 4.2 of the California State Bar

Rules of Professional Conduct, which generally prohibits a lawyer from communicating

with "a person the lawyer knows to be represented by another lawyer in the matter."1

The trial court granted the motion.

Although the District offered to provide counsel for Andrea, there is no evidence

that at the time of the contact she had accepted the offer or otherwise retained counsel.

Corrales does not dispute that he knew the District was represented by counsel, or that

Andrea was a District employee. Whether he violated Rule 4.2 thus turns on subdivision

(b)(2), which indicates that "[i]n the case of a represented . . . governmental organization,

this rule prohibits communications" with a current employee of the organization, "if the

subject of the communication is any act or omission of such person in connection with the

1 All further rule references are to the California State Bar Rules of Professional Conduct unless otherwise indicated. 2 matter which may be binding upon or imputed to the organization for purposes of civil or

criminal liability." (Ibid., italics added.)

In this case, Corrales contacted Andrea to discuss evidence of other alleged acts of

sexual harassment by Suarez. Her role was as a percipient witness. To the extent her

acts were discussed, Doe is not seeking to hold the District liable for what Andrea did. If

she reported acts of sexual harassment to the District, Doe would seek to impose liability

for what the District did not do in response. Likewise, if Andrea did not report the

harassment, it might be evidence that the District's sexual harassment policies were

inadequate. The purpose of Rule 4.2 is to prevent ex parte contact with employees who

engaged in acts or conduct for which the employer might be liable. It is not designed to

prevent a plaintiff's lawyer from talking to employees of an organizational defendant who

might provide relevant evidence of actionable misconduct by another employee for which

the employer may be liable. Accordingly, we will issue a writ directing the superior

court to vacate its order disqualifying Corrales as Doe's counsel in this matter. 2

FACTUAL AND PROCEDURAL BACKGROUND

Doe, a student at Southwestern College, was employed as a Public Safety

Assistant by the campus police department. The first amended complaint alleges a series

events and occurrences over a number of months ranging from repeated unwelcome

sexual comments by Suarez, her immediate supervisor, to and including a sexual assault

2 Although an order granting a motion to disqualify a lawyer is appealable, review by way of a writ petition is also proper and may be preferable. (See, e.g., Banning Ranch Conservancy v. Superior Court (2011) 193 Cal.App.4th 903, 918–919.) We exercise our discretion to follow the latter course in this case. 3 by defendants Kevin McKean and Joseph Martorano. She asserted that District

management responded inadequately to her complaints or not at all. Doe also described

instances of sexual harassment by Suarez directed at least two other female employees,

one of whom was College Service Officer Andrea P. Defendants characterize Andrea as

"a current District employee who may be a percipient witness to some of the allegations

giving rise to this lawsuit."

In July 2018, Doe's counsel noticed Andrea's deposition. On August 27, attorney

Matthew Wallin—who represents the District, Suarez and McKean—contacted attorney

Corrales to inform him that as a current employee Andrea was "entitled to

representation." Wallin added that he "was in the process of securing conflict counsel for

[her]," which could take "a couple of weeks." He requested that the date for the

deposition be rescheduled, and Corrales agreed.

The next day Corrales e-mailed both Wallin and Martorano's separate counsel,

Louis Dumont, to inform them that he now represented Andrea. Inferring that Corrales

had contacted her, Dumont responded that "it would be improper for you to have contact

or discussions with" Andrea because she "will be provided counsel by her employer."

Wallin replied a short time later, telling Corrales that because Andrea "is employed by

the District, your direct communication with her is improper and your representation

creates a conflict of interest." In a follow up e-mail two days later, Wallin asserted that

Corrales could not "have direct contact with District employees when you have brought

suit against the District."

4 The parties' positions were formalized in letters exchanged a few days later.

Wallin began with a letter to Corrales on September 4, claiming that "as of August 27,

2018, you were on notice that [Andrea] was being represented by counsel, and soon

thereafter, was going to be represented by alternative counsel." He maintained that

Corrales violated former Rule 2-100 (now Rule 4.2)3 by contacting a current District

employee, knowing that the District "and its employees [were] represented by an attorney

in the matter at the time of the ex-parte communication." Corrales responded, telling

Wallin "[t]he fact that [Andrea] is employed at the College is of no moment at all." He

added that if status as a current employee were the only issue, "then no employee could

obtain representation for sexual harassment against their employer, but must have their

employer provide an attorney for them. That would be absurd."

Defendants then filed a motion to disqualify Corrales as one of Doe's attorneys.

Following a hearing, the trial court granted the motion. Implicitly finding that Andrea

was a "represented" person as of August 27, the court concluded that "Corrales should

not have proceeded to contact [her] directly with regard to even re-scheduling the

deposition without her counsel's authorization."

DISCUSSION

3 The California State Bar Rules of Professional Conduct were revised and renumbered effective November 1, 2018. (See City of San Diego v. Superior Court (Hoover) (2018) 30 Cal.App.5th 457, 462, fn. 1 (Hoover).) The substance of former Rule 2-100 became Rule 4.2 of the revised Rules. Here, although the attorney conduct at issue occurred before the effective date of the revised Rules, the motion to disqualify counsel was decided after and the trial court referred to Rule 4.2 in making its decision. For sake of clarity and consistency, we will utilize the new numbering protocol throughout this opinion. 5 "A court's authority to disqualify a lawyer in a pending proceeding derives from its

inherent power to regulate the conduct of court officers, including attorneys, in

furtherance of the sound administration of justice." (Hoover, supra, 30 Cal.App.5th at

pp. 469–470.) Although we do not disqualify lawyers for every instance of misconduct,

ethical breaches will result in disqualification where it is necessary "to mitigate the unfair

advantage a party might otherwise obtain if the lawyer were allowed to continue

representing the client." (Id. at pp. 470–471; accord Baugh v. Garl (2006) 137

Cal.App.4th 737, 744 ["Disqualification is only justified where the misconduct will have

a 'continuing effect' on judicial proceedings."].) Here, the trial court disqualified Corrales

based on its conclusion that he violated Rule 4.2 by contacting Andrea.

Rule 4.2 provides in pertinent part:

"(a) In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person[] the lawyer knows[] to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.

"(b) In the case of a represented corporation, partnership, association, or other private or governmental organization, this rule prohibits communications with: [¶]

"(2) A current employee, member, agent, or other constituent of the organization, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability."

As is relevant for this case, Rule 4.2 does two things. Subdivision (a) tells lawyers

they cannot communicate directly with people they know are currently represented by an

attorney unless the attorney agrees. "Representation" in this context is largely a factual

6 question, turning on whether the individual retained an attorney, agreed to have any

interests represented by counsel, and was known to be represented by the communicating

lawyer. Subdivision (b) addresses the issue of communication where the represented

person is an organizational entity. Here, we are tasked with addressing whether anyone

and everyone associated with the entity is "represented" for purposes of Rule 4.2, and

how far the scope of representation extends. The Rule endeavors to explain who is

covered, and who is not.

The trial court's order granting the motion to disqualify is not completely clear as

to whether it believed Andrea had retained her own lawyer—and was thus a currently

"represented" person within the meaning of subdivision (a)—when attorney Corrales

contacted her on or about August 28, 2018. We thus begin by addressing the factual

question of actual representation. We then move to what we believe is the crucial legal

issue presented by this petition—whether Andrea was an employee covered by the terms

of subdivision (b). Although we review a decision to disqualify counsel under the abuse

of discretion standard, the court's discretion is limited by legal principles underpinning

Rule 4.2. (Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1197 (Snider).)

7 1. Was Andrea "Represented" by Counsel as of August 27?

In granting the motion to disqualify, the trial court found that "[o]n August 27,

2018, defendants' counsel placed Corrales on notice that [Andrea] was an employee of

defendants and that conflict counsel would be appointed for her deposition." Apparently

based on this, the court concluded that "Corrales should not have proceeded to contact

[her] directly . . . without her counsel's authorization." It is unclear whether the court

believed Andrea's mere status as a current employee was sufficient to preclude contact, or

whether other statements or actions by the District's counsel made her a "represented"

person.4

To the extent defendants are contending that Andrea voluntarily retained separate

counsel such that on or about August 27 she was a "represented" person for purposes of

Rule 4.2(a), there is simply no evidence that would support such a finding. Her

declaration addresses the substance of her claims of sexual harassment; it says nothing

about any attempt to retain counsel. Attorney Wallin's declaration merely states that after

her deposition was noticed, he communicated with Andrea "that the District would

provide her with representation" and that she "never informed me that she did not want

District representation." But defendants had no right to compel Andrea to accept their

offer of representation. And her silence in response to the District's offer does not

4 Elsewhere the court acknowledged "Corrales' understanding that at the time he spoke to her the following day [Andrea] was not represented by either Wallin or Lou Dumont, and [indicated her] desire not to use them." 8 constitute retention of an attorney or her agreement to be represented, by Wallin or

anyone else.5

Wallin's statement to Corrales that obtaining conflict counsel might take "a few

weeks to secure" is a red herring. Had Andrea sought or agreed to representation at

District expense, the fact that the particular attorney had not yet been identified would not

necessarily mean she was unrepresented for purposes of subdivision (a). Here, however,

where the record reveals no steps of any sort Andrea took to secure representation, there

is simply no basis to conclude she was represented when Corrales contacted her on or

about August 28. 6

2. Was Andrea a Current Employee Covered by Rule 4.2(b)(2)?

Even if Andrea had not retained a lawyer and was not a "represented" person as of

August 27, Rule 4.2 imposes additional restrictions on lawyers seeking to contact persons

associated with represented organizational entities. Specifically with regard to current

employees, subdivision (b)(2) bars a communication if its subject "is any act or omission

of [the employee] in connection with the matter which may be binding upon or imputed

5 The trial court reasoned, "This was not a situation where no counsel was going to represent [Andrea], but a question of who will represent her." But "an attorney's unilateral declaration regarding representation cannot, by itself, create an attorney-client relationship when none otherwise exists." (Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 723, 729.) Nothing in the record indicates that Andrea expressly or impliedly agreed to accept any offer of representation. (Ibid.)

6 In light of our conclusion that Andrea was not a represented person on August 27, it necessarily follows that Corrales could not possibly "know" she was represented at the time he contacted her. (Rule 4.2(a).) Certainly there was nothing in Wallin's August 27 e-mail statement to Corrales that would have informed him Andrea had agreed to be represented by counsel. 9 to the organization for purposes of civil or criminal liability." Thus, as to certain

categories of employees discussing certain subjects, opposing counsel simply cannot

contact them without advising the employer's counsel. This appears to be the source of

the trial court's concern, and the question is whether Andrea fell within a category of

employees as to which ex parte contact is prohibited.

We start with the fundamental proposition that not every current employee of a

represented organizational entity is a "represented" person for purposes of Rule 4.2. (See

Snider, supra, 113 Cal.App.4th at pp. 1198–1202 [tracing the history of former Rule 2-

100].) Indeed, Rule 4.2 (and former Rule 2-100) affirmatively "permit[] opposing

counsel to initiate ex parte contacts with . . . present employees (other than officers,

directors or managing agents) who are not separately represented, so long as the

communication does not involve the employee's act or failure to act in connection with

the matter which may bind the [organizational entity], be imputed to it, or constitute an

admission of the [entity] for purposes of establishing liability." (Triple A Machine Shop,

Inc. v. State of California (1989) 213 Cal.App.3d 131, 140; see also San Francisco

Unified School Dist. ex rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th 1212,

1232–1233 [rule is violated "only if an attorney communicates with an employee of the

opposing corporate party about acts or omissions of the employee that might be imputed

to the corporation"].)

Defendants make no contention that Andrea, a part-time student-employee of the

campus police department, was an officer, director, or managing agent of the District.

They do attempt to argue, however, that her "actions or inactions, and the District's

10 response to those actions or inactions, would certainly give rise to liability against the

District." As we did in Snider, we note that this argument fails at the outset "because

there is no evidence that the subject matter of the contact[] with the employee[] was

concerning 'any act or omission of such person in connection with the matter.' " (113

Cal.App.4th at p. 1210.)

Andrea was allegedly a victim of sexual misconduct similar to that experienced by

Doe. Her declaration supports this contention. To the extent she saw or heard anything

that could confirm Doe's allegations, the contact by Corrales "did not concern her own

actions or omissions concerning the dispute, but her percipient knowledge and

understanding of events surrounding the dispute." (Snider, supra, 113 Cal.App.4th at

p. 1210; see also Palmer v. Pioneer Inn Associates, Ltd. (9th Cir. 2003) 338 F.3d 981,

988.) The purpose of the Rule is not to wall off every employee with firsthand

knowledge of the relevant facts and prevent them from being asked questions. (See Curry

v. Contra Costa County (N.D.Cal., Apr. 30, 2014, No. 12-cv-03940-WHO) 2014

U.S.Dist. Lexis 60900, at p. *21 [rejecting defendant's overbroad reading of the rule that

"would make all employees who were not specifically represented by counsel and who

had knowledge of an event relevant to any incident uncontactable"]; see also Continental

Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 120, quoting Sinaiko, Ex Parte

Communication and the Corporate Adversary: A NewApproach (1991) 66 N.Y.U. L.Rev.

1456, 1493 [prohibition on ex parte contact with current employees " 'unduly impedes the

flow of information and unnecessarily increases the costs of litigation' "].)

11 Defendants' argument, however, appears aimed at a subtler point. They seem to

suggest that Corrales's questions were likely directed at Andrea's reporting or failing to

report Suarez's alleged misconduct to the District, and that the District could be liable

based on how it responded or failed to respond to any reports that were made. But

Andrea's acts in this regard—reporting Suarez's misconduct, if she did so7—are not the

type "which may be binding upon or imputed to the organization for purposes of civil or

criminal liability." (Rule 4.2(b)(2).) The District could not be liable to Doe because

Andrea chose to report or chose not to report sexual harassment by Suarez. Andrea's act

or her failure to act would not be "imputed to" the District for purposes of imposing

liability. The District's liability, if any, would be based on its own conduct—its sexual

harassment policies and how it responded to any reports of harassment it received. It was

error for the superior court to conclude otherwise.

In this respect it is irrelevant whether Andrea was a District employee. She could

have been a student or merely a concerned citizen who interacted with Suarez. The

primary relevance of her potential testimony is that she may have provided notice to the

District regarding Suarez's behavior that could have avoided the harm allegedly suffered

by Doe.

We therefore hold that where a plaintiff-employee claiming harassment and/or a

hostile work environment seeks to rely on evidence of similar misconduct provided by

another alleged employee-victim, ex parte communication with that second employee

7 In her declaration Andrea states that she reported Suarez's harassing conduct to her supervisor. 12 does not concern "an act or omission of such person in connection with the matter which

may be binding upon or imputed to the organization for purposes of civil or criminal

liability."8 (Rule 4.2(b)(2).)

DISPOSITION

Let a writ of mandate issue directing the respondent court to vacate its

order granting defendant's motion to disqualify attorney Manuel Corrales and enter a new

order denying the motion. The stay issued February 14, 2019 will be vacated when the

opinion is final as to this court. Doe shall recover costs.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

8 We appreciate that counsel on both sides of this case may well have taken certain steps in an effort to achieve a tactical advantage. We do not fault those efforts; it is, after all, the nature of an adversarial litigation process. At the same time, we do not necessarily endorse the approach as it played out here. When the District announced its intent to provide counsel for Andrea, Doe's counsel could have clarified that she was not currently represented and asserted their right to contact her. If defendants objected, as they surely would have, Doe could have invited them to seek a protective order before making contact. 13