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County of Los Angeles Department of Regional Planning v. the Superior Court of

August 28, 2012


(Los Angeles County Super. Ct. Nos. PV000512, PV000533, PV000712 & PV000722) ORIGINAL PROCEEDINGS in mandate. Peter Espinoza, Judge.

The opinion of the court was delivered by: Suzukawa, J.


Petition granted.

The County of Los Angeles (County), by and through the Department of Regional Planning of the County of Los Angeles (Department), seeks a writ of mandate directing the trial court to vacate its order appointing two of the Department's employees as confidential expert witnesses for real parties in interest, Quoc Thai Pham, Harold P. Brown, Arthur Lee Neal, Sr., and Bernard Harper (real parties). We conclude the superior court erred in refusing to vacate its expert appointment order and issue a peremptory writ of mandate directing it to do so.


This matter is before this court for the second time. At issue in the first appeal was the trial court's ruling with respect to the enforcement of Penal Code section 3003.5, subdivision (b).*fn1 That subdivision, which was added when the voters enacted Proposition 83 in November 2006, provides: "Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather."

On October 7, 2010, Pham, Brown, and Neal, Sr. filed an application for a temporary stay of enforcement of section 3003.5, subdivision (b) as to all registered sex offenders on active parole in Los Angeles County. Their principal contention was that because there was no compliant housing in the county, enforcement of the statute resulted in an unconstitutional banishment. (In re Pham (2011) 195 Cal.App.4th 681, 684-685.) On November 1, 2010, the trial court granted the application. Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, filed a timely appeal. We determined the trial court erred in concluding that Pham, Brown, and Neal, Sr. were likely to prevail on the merits of their banishment claim and reversed the November 1 order. (Id. at pp. 684, 689-690.)

On November 12, 2010, a deputy public defender representing Brown filed an ex parte application seeking the appointment of two employees of the Department, Nick Franchino and Todd Zagurski, as confidential experts for real parties pursuant to Evidence Code sections 730 and 952. There is no evidence that the application was served on the Department. On November 15, the trial court signed an order under seal appointing the requested experts "to confidentially consult with and assist petitioners in the above-entitled matter." On March 1, 2011, the court signed a second order under seal approving the payment of supplemental fees.

On October 11, 2011, the County, by and through the Department, filed a motion to vacate the experts' appointment. In addition, the County sought the return of all documents and information provided to real parties by the experts and an order that real parties make no use of the material in the matter pending before the court.

The County alleged the following. In 2008, in preparation of enacting an ordinance enforcing the mandate of section 3003.5, subdivision (b), the County prepared a mapping study to determine whether parolees would be able to find compliant housing in the unincorporated areas of Los Angeles County. In October 2010, the same deputy public defender who applied for the expert appointment order at issue sent a letter to Nick Franchino, expressing her understanding that it would be possible to remove layers of the map that would allow the location of schools, parks, and residential housing to remain. She sought the Department's assistance in duplicating those amended maps. The request was forwarded to Lawrence Hafetz, principal deputy county counsel, who advised the Department that it would not be a problem to comply with the request.

At some point (it is not clear from the record when), the Department learned the trial court signed an order appointing Franchino and Zagurski as real parties' confidential experts. The Department became aware that real parties were using the experts to add additional data to the 2008 map in real parties' attempt to have section 3003.5, subdivision (b) declared unconstitutional. The task performed by the experts was beyond the scope of the work the Department had approved in October 2010. The County argued that had it been made aware that real parties were going to use Department employees to create a new map, it would have objected to the appointment request. The County alleged that it was a conflict of interest to have Department employees working with a party who sought to have section 3003.5, subdivision (b), and in effect the County ordinance (see L.A. County Code, ch. 13.59 et seq.), invalidated.

Real parties responded that no conflict of interest existed as a matter of law because the County was neither a party nor a representative of a party to the litigation. They argued the County could not claim that the appointed experts possessed confidential attorney-client information because the map the experts created utilized the Department's 2008 map, which is a public record. Real parties asserted that the Department was aware its employees were appointed as experts and its change of heart was not a ground to vacate the appointment order.

After hearing oral argument, on March 21, 2012, the trial court issued a written order denying the County's motion. It found: (1) the question of the County's right to control the work of its employees was moot, as the map was already completed; (2) prohibiting the use of the map would be a waste of resources; (3) there is no conflict of interest, as the County's ordinance was not at issue; and (4) if the Department was unaware that its employees were assisting petitioners, the miscommunication was the result of "sort of [an] intra-familial dispute between County agencies [that] ought to be addressed by the County, not the courts."

On May 22, 2012, the County filed the instant petition, asking that we direct the superior court to vacate its order denying the County's motion to rescind the appointment of ...

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