Ross v. Superior Court of Riverside Cnty.

• Decision Date: 19 April 2022
• Docket Number: D079278
• Citation: 77 Cal.App.5th 667,292 Cal.Rptr.3d 663
• Parties: Christopher ROSS, Petitioner, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; County of Riverside, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

77 Cal.App.5th 667

292 Cal.Rptr.3d 663

Christopher ROSS, Petitioner,

v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent;County of Riverside, Real Party in Interest.

D079278

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

Filed April 19, 2022

James W. Parkinson, APLC, James W. Parkinson, Fallbrook; Singleton Schreiber McKenzie & Scott, Benjamin Israel Siminou ; Terry Singleton, A.P.C., Terry Singleton, San Diego; Hewgill, Cobb & Lockard and Efaon Cobb for Petitioner.

No appearance for Respondent.

Woodruff, Spradlin & Smart, Daniel K. Spradlin, Costa Mesa, and Keith Raoul Dobyns for Real Party in Interest.

HALLER, Acting P.J.

I. INTRODUCTION

Christopher Ross, a former prosecutor with the Riverside County District Attorney's office (DA's Office), sued the County of Riverside (the County) for whistleblower retaliation and disability discrimination after the DA's Office allegedly demoted him and refused to accommodate medical issues in response to Ross raising concerns that the DA's Office was prosecuting an innocent man for murder. Ross alleged the executive management team in the DA's Office retaliated and discriminated against him "at the specific direction," and with the "express knowledge and consent" of, then–District Attorney Paul Zellerbach.

During a deposition, the former district attorney who preceded Zellerbach, Rodric Pacheco, testified about a conversation he had with the current district attorney who succeeded Zellerbach, Mike Hestrin. Pacheco testified that he and Hestrin shared the view that Zellerbach was one of the most unethical attorneys they had encountered as prosecutors. According to Pacheco, Hestrin then revealed that an unidentified "County lawyer or lawyers" asked Hestrin to alter his anticipated testimony regarding his views of Zellerbach's ethical character.

Ross subpoenaed Hestrin for a deposition about his communications with the unidentified County lawyers, as well as regarding advice Hestrin provided to Ross in Hestrin's capacity as an official in the prosecutors' union in which Ross was a member. The County moved to quash the subpoena under the "general rule ... that agency heads and other top governmental executives are not subject to deposition absent compelling reasons," such as "when the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source." ( Westly v. Superior Court (2004) 125 Cal.App.4th 907, 910-911, 23 Cal.Rptr.3d 154 ( Westly ).)

The trial court granted the County's motion to quash, finding Hestrin's alleged communications with the unidentified County lawyers were irrelevant to Ross's retaliation and discrimination claims, and that Ross could obtain evidence regarding his union rights from other sources. Ross seeks a writ of mandate directing the trial court to vacate its order granting the motion to quash and to enter a new order denying it.

We deny the petition as it relates to evidence concerning Hestrin's role counseling Ross regarding his union rights. Ross has not shown the trial court abused its discretion by finding he could obtain this type of evidence from sources other than the sitting district attorney.

We grant the petition as it relates to alleged requests by the unidentified County lawyers that Hestrin alter his testimony regarding Zellerbach's ethical character. Assuming any attorney-client privilege ever protected such communications, Hestrin waived it by voluntarily disclosing the communications to Pacheco. And, although we agree with the trial court that the testimony is irrelevant to the merits of Ross's substantive claims against the County, the testimony is relevant to Zellerbach's credibility, and he will likely be a material trial witness. Testimony showing the unidentified County lawyers attempted to suppress or alter a witness's testimony about the credibility of a material witness is also relevant to show the County's consciousness of guilt.

Accordingly, we deny the petition in part, and grant it in part, as set forth more fully in our Disposition.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Ross's Claims Against the County

We base our summary of Ross's claims against the County on the allegations in Ross's complaint and petition for writ of mandamus. We emphasize that these are merely unadjudicated allegations.

In 2005, Ross joined the DA's Office as a prosecutor. He was eventually assigned to the homicide unit.

In 2010, Zellerbach was elected district attorney for Riverside County, replacing Pacheco. Zellerbach installed Sean Lafferty as Assistant District Attorney.

In late 2011, Ross was assigned a murder case the DA's Office had filed against Roger Parker (the Parker case). The case was assigned to Ross after another prosecutor in the DA's Office refused to prosecute the case. After Ross reviewed the case file, he concluded there was insufficient evidence to prosecute Parker for murder. Ross repeatedly urged his superiors to drop the charges against Parker, but they refused.

In 2013, Ross learned DNA evidence exonerated Parker. Ross alleges he again urged Lafferty to dismiss the charges, but Lafferty refused and ordered Ross to withhold the exculpatory evidence from the defense. When Ross told Lafferty he had already given the evidence to Parker's counsel, Lafferty responded angrily.

Ross discovered additional exculpatory evidence later in 2013. An investigator with DA's Office interviewed a witness who identified Parker's roommate as the murderer. The investigator later located a jailhouse recording of Parker's roommate confessing to the murder.

Before Ross provided this evidence to Parker's defense counsel, Ross was abruptly reassigned from the homicide unit to the filing unit, a ministerial department that reviews arrest reports and makes charging recommendations.

Ross asked the investigator to give the jailhouse recording of Parker's roommate to Lafferty. Ross alleges he again urged Lafferty to dismiss the charges against Parker, but Lafferty seemed more interested in whether Ross had provided the recording to Parker's defense counsel. Ross stated he had not yet done so, and asked if Lafferty would like him to. Lafferty declined the offer and assured Ross "he would take care of it." In fact, Lafferty allegedly had already instructed the investigator to withhold the recording from Parker's counsel.

The DA's Office finally dropped the charges against Parker, who was released in 2014 after spending nearly four years in custody.

Meanwhile, beginning in 2013, Ross began experiencing severe neurological symptoms. Specialists at Cedars-Sinai and the Mayo Clinic attributed Ross's symptoms to a concussion syndrome sustained while deployed to Iraq with the Army. The specialists advised Ross that stress would trigger his symptoms.

Accordingly, Ross requested that his supervisors stop assigning him additional murder cases until his medical evaluations were complete. However, Ross's superiors not only refused the request, but they transferred him from the homicide unit to the filing unit.

In response, Ross sought guidance from Hestrin, whom Ross asserts was president of the Riverside County prosecutors' union (the Union). Hestrin provided Ross advice, counseling, and support.

Eventually, Ross's superiors placed him on administrative leave and refused to allow him to return to work without a doctor's note. Ross again sought advice from Hestrin, who informed Ross that the doctor's note requirement violated Ross's rights under the memorandum of understanding (MOU) between the DA's Office and the Union. Ross informed the DA's Office it was violating his union rights, but the DA's Office refused to take him off administrative leave.

In April 2014, when it became clear to Ross that the DA's Office had effectively terminated him, Ross resigned.

In June 2014, Hestrin defeated Zellerbach in the election for district attorney for Riverside County.

In July 2014, Ross filed this lawsuit against the County, Zellerbach, Lafferty, and other employees of the DA's Office. Ross asserted claims for (among other things) whistleblower retaliation ( Lab. Code, § 1102.5 ) arising from his efforts to persuade the DA's Office to dismiss the Parker case; disability discrimination in violation of the Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12940 ); and violating FEHA by failing to engage in a good faith interactive process to determine whether reasonable accommodations could address Ross's disability. Ross alleged the individual defendants other than Zellerbach "acted at the specific direction of Zellerbach and with his express knowledge and consent of their actions." The individual defendants were ultimately dismissed, leaving only the County as a defendant.

The trial court granted summary judgment for the County, but our court reversed the judgment in 2019. (See Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592, 248 Cal.Rptr.3d 696.)

B. Ross's Deposition Subpoena to Hestrin

In early January 2021, Ross served a subpoena and notice to take Hestrin's deposition in late February. The notice contained 11 categories of document requests regarding the Parker case and DA's Office policies and procedures under Zellerbach. The parties met and conferred regarding the scope of Hestrin's deposition, and whether it should proceed at all.

In the meantime, on February 12, 2021, Ross took the deposition of Rodric Pacheco, the district attorney who immediately preceded Zellerbach in office. Pacheco testified he is friends with Hestrin and has stayed in touch with him, including by discussing this case. Pacheco further testified that when he called Hestrin "to give him a heads up" that Pacheco "heard that [Hestrin] was going to be deposed," Hestrin "revealed certain information that might be important here."

Specifically, Pacheco testified as follows about his conversation with Hestrin:

"Well, we were talking about our respective

...