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Woods v. State, California Department of Corrections and Rehabilitation

United States District Court, E.D. California

February 26, 2018




         This 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 GRANTED.

         I. BACKGROUND

         This 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 et seq.).[1]

         According 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.

         On 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.

         Plaintiff 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.

         On 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.


         Plaintiff 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 current proceedings.

         A. Legal Standards

         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[2] 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; or
(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or
(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 first matter.
(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).

         Disqualification 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).

         B. Analysis

         It is 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, [3] 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 ...

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