United States District Court, E.D. California
PATRICIA L. WOODS, Plaintiff,
STATE OF CALIFORNIA, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION CDCR, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
matter is before the undersigned pursuant to Local Rule
302(c)(21). On October 24, 2017, the court held a hearing on
defendants' Motions to Dismiss, ECF Nos. 21, 23, and
plaintiff's Motion to Disqualify, ECF No. 34. Patricia L.
Woods appeared on behalf of herself. William Downer appeared
on behalf of defendants California Department of Corrections
and Rehabilitations, Robert Storms, and Larry Norris
(collectively “CDCR”) and J. Felix De La Torre
appeared on behalf of defendants Public Employment Relations
Board, Eileen Potter, and Wendi Ross (collectively
“PERB”). For the reasons that follow, the
plaintiff's motion to disqualify is DENIED and the
undersigned recommends defendants' motions to dismiss be
action was commenced on April 14, 2017. ECF No. 1. The case
proceeds on the First Amended Complaint
(“Complaint”), ECF No. 6. Plaintiff alleges she
was wrongfully terminated from her employment with California
Department of Corrections and Rehabilitation
(“CDCR”) based on her race, and was subjected to
a hostile work environment and retaliatory actions for
obtaining union representation regarding her employment
termination. ECF No. 1 at 5, ¶¶ 16-17. Plaintiff
alleges the following causes of action: (1) violations of 42
U.S.C. § 1981; (2) violations of 42 U.S.C. §§
1985(3), 1986; (3) breach of contract; and (4) violations
under the Ralph C. Dills Act (Cal. Gov't Code § 3512
to plaintiff, she was appointed as an Associate Governmental
Program Analyst in the Crisis Placement Unit of CDCR's
division of Adult Parole Operations on September 10, 2007.
Id. at 9, ¶ 42. The new classification required
plaintiff to serve a six-month probationary period.
Id. at 10, ¶ 44. Plaintiff alleges she did not
receive a periodic written performance or probationary
reports before being terminated, as required by law.
Id. She claims probationary reports were not issued
by her immediate supervisors, defendants Norris and Storms,
who are both white, due her being the only African-American
female employee in the unit. Id. at ¶ 45. All
white employees working in the same unit were issued their
required probationary reports. Id. at 10-11, ¶
46. Plaintiff contends her probation was rejected due to her
race and because she involved union representatives in
communications with her managers. Id. at 10,
¶44. Plaintiff alleges that defendant Norris reprimanded
her for seeking assistance from her union representative
regarding an increase, without prior notice, in her duties
and functions. Id. at 11, ¶ 48; 34-37 (Exhibit
3). On November 27, 2007, plaintiff's probation was
rejected and her employment terminated. Id. at 11,
¶ 49. At the time, plaintiff had close to eleven years
of employment service with the state of California.
Id. at 10, ¶ 43.
December 5, 2007, CDCR conducted a “Skelly
Hearing” to determine whether plaintiff's
termination was lawful. Id. at 12, ¶ 54. On
December 6, 2007, a recommendation was issued by the Skelly
Hearing Officer to the Director of the Division of Adult
Parole Operations seeking clarification on various issues and
withdrawal of the “rejection during probation”
pending clarification. Id. On December 27, 2007,
plaintiff filed an unfair practice charge and complaint with
the California Public Employment Relations Board
(“PERB”) alleging a violation of the Ralph C.
Dills Act (Cal. Gov't Code § 3512 et seq.).
Id. at 12, ¶ 57; 17, ¶ 83. On August 24,
2009, the Administrative Law Judge issued a proposed decision
dismissing the complaint, and on October 12, 2010, PERB
issued its decision affirming the decision and dismissing
plaintiff's complaint. Id. at 17, ¶¶
87, 89. On January 27, 2011, PERB issued its denial of
plaintiff's request for reconsideration of its decision.
Id. at 18, ¶ 90.
appealed to the California Third District Court of Appeal on
February 17, 2012, which denied the petition for writ of
review on September 20, 2012. ECF No. 43 (RJN), Exhs. 1-2.
Plaintiff sought review in the California Supreme Court,
which was denied on November 12, 2012. ECF No. 6 at 17,
¶¶ 93-94. On February 19, 2013 plaintiff filed a
petition for writ of certiorari with the United States
Supreme Court, which was denied on April 22, 2013.
Id. at ¶¶ 95, 97. A request for
reconsideration was denied by the Supreme Court on June 17,
2013. ECF No. 6, Exh. 8.
October 24, 2016, plaintiff filed a notice with the
California Department of General Services, Government Claims
Program. The claim was denied as untimely on December 30,
2016. ECF No. 6 at 3, ¶¶ 9-10.
MOTION TO DISQUALIFY
moves to disqualify attorney J. Felix De La Torre (“De
La Torre”), counsel for PERB defendants, based on an
alleged conflict of interest. Plaintiff asserts that De La
Torre is serving as “both attorney-of-record at the
SEIU Local 1000 (“SEIU”) office before the State
of California and the PERB's Defendants', while at
the same time serving as General Counsel and the
attorney-of-record for the PERB's Defendants' at his
current employment with” PERB. ECF No. 34 at 4.
Plaintiff alleges this simultaneous representation
disqualifies De La Torre from representing PERB in the
Eastern District has adopted the State Bar of
California's Rules of Professional Conduct and applicable
court decisions, as its own standard of professional conduct.
See E.D. Cal. L. R. 180(e). Accordingly, California
law applies in this matter. In re Cty. of Los
Angeles, 223 F.3d 990, 995 (9th Cir. 2000) (motions for
disqualification apply state law). California Rule of
Professional Conduct 3-310 provides, in pertinent part, that:
(C) A member shall not, without the informed written consent
of each client:
(1) Accept representation of more than one client in a matter
in which the interests of the clients potentially conflict;
(2) Accept or continue representation of more than one client
in a matter in which the interests of the clients actually
(3) Represent a client in a matter and at the same time in a
separate matter accept as a client a person or entity whose
interest in the first matter is adverse to the client in the
(E) A member shall not, without the informed written consent
of the client or former client, accept employment adverse to
the client or former client where, by reason of the
representation of the client or former client, the member has
obtained confidential information material to the employment.
Cal. R. Prof'l Conduct 3-310(C), (E).
of an attorney lies within the sound discretion of the
district courts. Gas-A-Tron of Arizona v. Union Oil Co.
of California, 534 F.2d 1322, 1325 (9th Cir. 1976).
“Because disqualification is a drastic measure, it is
generally disfavored and should only be imposed when
absolutely necessary.” Concat LP v. Unilever,
PLC, 350 F.Supp.2d 796, 814 (N.D. Cal. 2004) (citations
omitted). Motions for disqualification “should be
subjected to ‘particularly strict judicial
scrutiny.'” Optyl Eyewear Fashion Int'l
Corp. v. Style Companies, Ltd., 760 F.2d 1045, 1050 (9th
Cir. 1985) (citations omitted).
undisputed that attorney De La Torre worked for SEIU before
he became the General Counsel of PERB. Having considered the
submissions of the parties and the representations made at
hearing on the motion,  the court finds that De La Torre was
never simultaneously employed by SEIU and PERB, and that
there is no conflict. In the opposition and attached
declaration, De La Torre declares he never met Woods during
his employment with SEIU and did not “represent her in
any capacity.” See ECF Nos. 36 at 4; 36-1 at
¶ 3 (“De La Torre Decl.”). Moreover, during
his employment with SEIU no information, documents, or
material concerning plaintiff was ever shared with him. De La
Torre Decl. ¶ 4. Further, De La Torre declares that he
“has not provided any legal services or representation
for any person or entity on behalf” of SEIU since his
resignation from employment at SEIU. Id. at ¶
7. His resignation from SEIU was effective on March 8, 2015,
and he began work at PERB on March 9, 2015. Defendants assert
that plaintiff's mistaken belief in a conflict arises
from “an error that was caused when De La Torre did not
update his CM/ECF account” from ...