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

• Decision Date: 19 December 2018
• Docket Number: D073961
• Citation: 241 Cal.Rptr.3d 604,30 Cal.App.5th 457
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF SAN DIEGO, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; Dana Hoover, Real Party in Interest.

30 Cal.App.5th 457

241 Cal.Rptr.3d 604

CITY OF SAN DIEGO, Petitioner,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

Dana Hoover, Real Party in Interest.

D073961

Court of Appeal, Fourth District, Division 1, California.

Filed December 19, 2018

As Modified on Denial of Rehearing January 7, 2019

Mara W. Elliot, City Attorney, George F. Schaefer, Assistant City Attorney, Michael J. McGowan, Deputy City Attorney for Petitioner.

No appearance for Respondent.

The Gilleon Law Firm, James C. Mitchell and Daniel M. Gilleon, San Diego, for Real Party in Interest Dana Hoover.

DATO, J.

As 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 court 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 even 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.

FACTUAL 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.

Later 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. McGowan complaining about the alleged violation of the attorney-client privilege. McGowan responded that he had just "inherited" the case from another attorney, but based on "very limited information" he did not believe the questions were sufficiently "related to the lawsuit."

He nonetheless offered to meet with Gilleon before the rescheduled interview to discuss the matter. Gilleon sent another e-mail, this time also copying the San Diego City Attorney Mara Elliot, warning that if the City proceeded to question Hoover about conversations she had with Gilleon, he would "take immediate legal action including but not limited to not limited to: 1) restraining orders; 2) sanctions motion; 3) motion to disqualify; and 4) a report to the State Bar." Neither Gilleon nor the City made any attempt to seek input or guidance from the trial court.

Hoover's interview with the same two internal affairs investigators resumed on March 22. Hoover was accompanied by attorney Rick Pinckard, counsel provided by the police officers' association. Deputy City Attorney Christina Milligan observed the interview but also engaged with Pinckard in occasional discussions of legal issues regarding the attorney-client privilege.

A transcript of that interview has been filed under seal and is part of the record.⁴ In it Hoover described receiving a group text message from Gilleon that referred to the sexual assault investigation. She later contacted him by phone about a different issue, but the sexual assault investigation came up during the discussion. Later, Hoover decided to look at the police report concerning the sexual assault incident out of "professional curiosity." She printed a copy, read the report, then immediately placed it in a "secured shred bin." She specifically denied giving a copy of the report to anyone or discussing its contents with anyone, including any member of the press.

When the investigators sought to inquire about the content of the phone conversation with Gilleon that preceded Hoover accessing the report, Pinckard reasserted the attorney-client privilege. In response to a clarifying question by Deputy City Attorney Milligan, Hoover stated that her lawsuit against the City "absolutely" dealt with claims of negligent investigation and a failure to properly investigate. Milligan followed up by asking whether the sexual assault investigation was "encompassed" in Hoover's case, to which she replied, "No." But Pinckard then pointed out that "how that claim might in some way support or relate to the claims that are asserted in her action and any discussions that she's had with her attorney ... regarding how this incident may or may not fit into that litigation, that would be privileged."

The questioning by the internal affairs officers resumed. Hoover denied giving Gilleon any information about the sexual assault case. Sergeant Huys pressed her for details...