Jane Kingsley Miller v. City of Carmel-By-The-sea (m99513) 2009 Volume I

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(CIT A CION JUDICIAL

Ill
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
City of Carmel-by-the Sea
and DOES 1 through 100, inclusive
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANT}:
Jane Kingsley Miller

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FOR COURT USE ONLY
(SOLO PARA USODELA CORTE)
FILED
JUN 1 7 2009
CONNIE MAZZEI
CLERK OF THE SUPERIOR COURT
______ DEPUTY
S.HANS
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a
copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the
court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more
information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp}, your county law library, or the courthouse
nearest you. lf you cannot pay the filing fee, ask the court clertt for a fee waiver fomt. If you do not file your response on time, you may
lose the case by default, and your wages, money, and property may be taken without further warning from the court.
There are other legal requirements. You may want to caU an attorney right away. tf you do not know an attorney. you may want to call an
attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services
program. You can locate these nonprofit groups at the California legal Services Web site (www.Jawhelpcalifornia.org), the California
Courts: Online Self-Hefp Center (www.courtinfo.ca.govJselfhelp), or by contacting your local court or county bar association.
Tiene 30 DIAS DE CALENDARIO despues de que le entreguen esta citaci6n y papeles legales pan presentar una respuesta porescrito
en esta corte y hacer que se enttegue una copia at demandante. Una carta o una 1/amada tetemica nolo protegen. Su respuesta por
escrito tiene que estar en formato legal correcto si desea que procesen su caso en Ia corte. Es posibte que haya un formulario que usted
pueda usar para su respuesta. l>uede encontrar eslos formularies de Ia corte y mas informaciOn en el Centro de Ayuda de las Cortes de
California {www.courtinfo.ca.gov/selfhelp/espanotJ), en Ia biblioteca de /eyes de su condado o en Ia corte que le quede mas cerca. Sino
puede pagar Ia cuota de presentacl6n, pida al secretarlo de fa corte que le de un formutario de exenci6n de pago de cuotas. Sino presenta
su respuesta a tiempo, puede perder el caso por incumplimiento y Ia corte le podrit quitar su sueldoz dinero y bienes sin m.is advertencia.
Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente. Sino conoce a un abogado, puede /lamar a un
servicio de remisiOn a abogados. Sino puede pagar a un abogado. es posible que cumpfa con los requisitos p;Jra obtener servicios
legales gratuitos de un programa de setvicios legales sin fines de Iuera. Puede enconttar estos grtJpos sin fines de lucro en el sitio web de
California Legal Services
1
(www.lawhelpcalifomia.org). en el Centro de Ayuda de Jas Cottes de California,
(www.courtinfo.ca.gov/SJ)Jfhelp/espanoll) o poniendose en contacto con Ja cotte o el colegio de abogados locales. _j
. . . . . . .
The name and address of the court is: Monterey County Superior Court lc""e NUMBER H 9 9 5 1 3 I
(EI nombre y direcci6n de Ia corte es): . del C..roJ . .
1200 Aguajito Road
1200 Aguajito Road
Monterey CA 93940
The name. address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is:
{EI nombre, Ia direcci6n y el numero de telefono del abogado del demandante, o del demandante que no tiene abogado, es):
Michael W. Stamp (831) 373 1214 72765
479 Pacific Street, Suite One
Monterey CA 93940
S.HANS
JUN 1 7 2009 CONNIE MAZZEI
(For proof of service oi this

(Para prueba de enJrega de esta citatiOn use el formulario Proof of Service of Summons, (POS.()10)).
[SEAL]
NOTICE TO THE PERSON SERVED: You are served
1. 0 as an individual defendant.
2. as the person sued under the fictitious name of (specify):
3.1XJ on behalf of (specify)' oQ {.h't
under: CJ CCP 416.10 (c01poration) 0 CCP 416.60 (minor)
c:::J CCP 416.20 (defunct corporation) D CCP 416.70 (conservatee)
0 CCP416 40 or 11artnership) D CCP 416 90 (authonzed person)
Qi(l other (specfy).t\\\1()\Q.rj>A-\
4. 00 by personal delivery on (date) to . \'1 . vO..

F01m Adopted fill" ManM!<lf)' Use
Jodadra! cl Calif0011a
SUM tOO Januill)' 1, 20041 SUMMONS
@EB
Code of CMI Procedure 412.ZO, 465
0002
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1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
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FILED
JUN 1 7 2009
CONNIE MAZZEI
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S.HANS
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
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JANE KINGSLEY MILLER.
Plaintiff,
v.
Case No. H 9 9 5 1 3
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COMPLAINT
CITY OF CARMEL-BY-THE-SEA, and
13 DOES 1 through 100,
14 Defendants.
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Plaintiff Jane Kingsley Miller ("Plaintiff) alleges as follows:
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
1. Plaintiff is an adult female employed by the City of Carmel-by-the-Sea.
She is 62 years old. Since 1999, Plaintiff was employed by the City, first as the
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Personnel Specialist and, since August 2003, as the Human Resources Manager. Her
personnel evaluations have been outstanding, she has provided exemplary service to
the City and the public, and she has provided human resources and risk management
services to the City with the highest degree of professionalism and integrity. At all times
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mentioned herein, she reported directly to the City Administrator, who is the highest-
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ranking executive of the City, and is the decision-maker for the City on personnel
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issues. The City Administrator reports to the Mayor and City Council.
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MILLER V. CITY OF CARMEL-BY-THF-ilFA
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1 2. Defendant City of Carmel-by-the-Sea (City) is a municipal corporation,
2 organized under, existing by, and subject to the laws of the State of California. The
3 Mayor and the City Council are the governing board of the City, and they supervise the
4 operations of City government. The Mayor serves as the chief spokesperson for the
5 City, and represents the City in all ceremonial and official affairs.
6 3. Richard Guillen (Guillen) is an adult male employed by the City of Carmel-
7 by-the-Sea as City Administrator.
8 4. Plaintiff is ignorant of the true names and capacities of defendants sued
9 herein as DOES 1 through 100 and therefore sues these defendants by such fictitious
10 names. Plaintiff will amend this complaint to allege their true names and capacities if
11 and/or when ascertained. Plaintiff is informed and believes and thereon alleges that
12 each of these fictitiously named defendants is in some manner responsible to Plainttff
13 for the relief requested therein.
14 5. Plaintiff is informed and believes and thereon alleges that, at all times
15 mentioned herein, defendants DOES 1 through 100 were the agents, joint venturers,
16 partners, servants and/or employees of all other defendants identified herein, acting
17 within the purpose and scope of their agency, authority and/or employment with the
18 permission, consent, and ratification of each other defendant. Each and every act,
19 omission, and statement of Guillen, of DOES 1 through 100, and of the City described
20 herein has been ratified, adopted, endorsed, or approved by the City of Carmel-by-the-
21 Sea, and by the Mayor and City Council. The Mayor and City Council, and their
22 officers, agents, and attorneys had actual and/or constructive notice of the actions,
23 omissions, and statements of Guillen, including a continuous course of conduct and
24 continuing violations directed at Plaintiff by Guillen from 2004 to the present, and did
25 not take reasonable, prudent, or effective steps to prevent the conduct of Guillen or to
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26 prevent the injuries suffered by Plaintiff. The Mayor and City Council delegated to
27 Guillen the power to make any and all personnel-related decisions, and did so without
28 retaining reasonable oversight and review by the Mayor and City Council.
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MILLER V. CITY OF CARMEL -BY-THE-SEA
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1 6. On July 16, 1999, Plaintiff was hired by the City of Carmel-by-the-Sea as
2 the City's Personnel Specialist. From the date she was hired, and continuing throughout
3 Plaintiffs service with the City, Plaintiff acted with the highest regard and respect for the
4 public and for Plaintiffs duties to the City, its representatives, its staff, and the public.
5 7. In approximately September, 2000, when City Administrator Jere Kersnar
6 left the City, the City Council stated publicly that it would begin a search for a new city
7 administrator. In October 2000, the Mayor and City Council hired Guillen as an interim
8 city administrator. In or about November 2000, the Mayor and City Council decided not
9 to continue with an executive search and instead hired Guillen as City Administrator.
10 8. Plaintiff reported directly to Guillen within the City government structure.
11 9. From January 2001 to 2003, Guillen forced out several long-time City
12 directors and employees, including the Assistant City Administrator, Community and
13 Cultural Director, Public Works Director, and Financial Services Coordinator. Guillen
14 negotiated with those employees, and combined the negotiations with threats to
15 terminate certain of those employees, all of whom were significantly over the age of 40.
16 Guillen made it clear to Plaintiff and to others that he was acting with the full support of
17 the Mayor and City Council in his decisions to oust these older administrators, and that
18 Guillen had the absolute power to unilaterally make and implement any personnel or
19 other decisions he chose to make, including the decision to terminate any or all of the
20 positions described above.
21 10. During the period that Guillen was forcing out these older directors and
22 employees, Guillen developed a close personal relationship with a Program Supervisor,
23 a female employee of the City, identified here as Female A. Guillen gave Female A
24 significant, preferential, favorable treatment in her employment that was not provided to
25 other female employees or to male employees. The preferential treatment was based
26 not upon merit. but upon Female A's close personal relationship with Guillen. The
27 favorable treatment included a transfer of Female A to a different and better location
28 without following standard City procedures, which was followed by a decision by Guillen
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MILLER V. CITY OF CARMEL-BY-THE-SEA
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1 to have Female A report directly and personally to Guillen. Female A became the only
2 person at her level of the organization chart to report directly to Guillen.
3 11. The favorable treatment of Female A also included several other
4 favorable actions by Guillen, including the following: a reclassification to a managerial
5 position specially created by Guillen for the employee; significant pay raises arranged
6 by Guillen and not based upon job performance or merit, but upon the employee's
7 favored status with Guillen; frequent and private access to Guillen; access to
8 confidential personnel information not related to Female A's job duties; Guillen's
9 support of Female A in authorizing Female A to have special status among City staff;
10 and Guillen's actions to include Female A in decisions and discussions that were
11 outside her job responsibilities and affecting the rights of other less-favored female and
12 male employees. In addition, Guillen arranged and "negotiated" with Female A for a
13 taxpayer-paid salary for Female A in excess of that which would have been provided to
14 another employee with the same education, job-related experience, training, and skills.
15 Guillen's favoritism to Female A was made known and demonstrated at work by Guillen
16 and by Female A, and created a hostile and sexually charged work environment for
17 other female employees who did not have the same sort of relationship with Guillen.
18 Guillen's preferential treatment of Female A continued throughout her employment with
19 the City, and was severe and pervasive enough to adversely affect and alter the
20 conditions of employment in the work environment The conduct of Guillen and Female
21 A conveyed a demeaning message to female employees in a manner that had a
22 negative effect on the productivity and professionalism of the office as a whole.
23 12. In August 2003, Guillen changed Plaintiffs job title to Human Resources
24 Manager. Guillen set Plaintiffs salary at the 4'h Step of a comparable Manager's
25 position, but at a salary lower than the amount of the prior Personnel Officer, a male
26 employee with less education, training and experience in personnel matters than
27 Plaintiff.
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1 13. By Spring of 2004, Guillen was giving preferential treatment to Female A.
2 At that time, Guillen at times became cold and distant to Plaintiff and other women in
3 the City workplace. In the social and professional context of employment at City Hall,
4 Plaintiff and other female employees affected by the change in working conditions
5 reasonably attributed Guillen's behavioral changes to Guillen's close personal
6 relationship with Female A. Several female employees began to talk openly about the
7 relationship of Guillen with Female A and the favoritism based upon inappropriate
8 activity, along with the ways in which the favoritism imposed significant burdens upon
9 the work environment.
10 14. Guillen's favoritism toward Female A was based upon a personal
11 relationship inappropriate for the workplace. The benefits conferred on Female A, such
12 as pay, bonuses, responsibility, and professional advancement, were not bestowed on
13 female employees who chose not to engage in that type of relationship with the City's
14 top administrator or who chose not to accept Guillen's inappropriate comments and
15 actions. The Mayor and City Council were made aware of Guillen's conduct and/or had
16 constructive knowledge, and took no action of any kind.
17 15. Guillen altered the professional work environment at City Hall that had
18 existed before Guillen took office, and created in its place an environment where
19 females were considered valuable and protected by Guillen when they engaged in an
20 inappropriately flirtatious and sexually-charged manner, and when they accepted his
21 inappropriate words and conduct without challenging any of it.
22 16. As Guillen continued his relationship with, and favoritism towards,
23 Female A, he gradually and persistently created a hostile work environment for other
24 female employees, including Plaintiff. Guillen frequently demonstrated his absolute
25 control of the workplace, and emphasized how he had been delegated by the Mayor to
26 exercise the authority of the City, and was able to override standards applicable to other
27 persons and to the procedures and policies in effect at the City. He demonstrated how
28 he was able to dismiss or make derogatory remarks about others in the City, including
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1 elected officials, with impunity. He demonstrated how he was able to make decisions in
2 the workplace that were not based upon legitimate work-related bases, but which were
3 personal, unchecked and not challenged by others in City government, including the
4 Mayor, City Council, and City Attorney. Guillen instructed City employees, including
5 Plaintiff, that they were not allowed to contact the Mayor and City Council, except when
6 Guillen personally gave permission to do so. Guillen's decisions and statements as to
7 personnel, staffing, salaries, classifications, assignments, working conditions, planning,
8 and other matters, demonstrated to Plaintiff and to other City employees that as the
9 City's top administrator he had complete power, was not bound by the constraints
10 applicable to others at the City, was the City's decision-maker, and was not reined in by
11 existing City policies or by any effective or meaningful mechanism or formula for
12 supervision.
13 17. Guillen engaged in a course of conduct toward Plaintiff that reflected
14 Guillen's desire to become personally close to Plaintiff, treating her as a female that he
15 singled out for attention. Guillen made numerous comments about his feelings of
16 attraction to Plaintiff. As part of his continuing course of conduct toward Plaintiff,
17 Guillen sent hundreds of emails and text messages to Plaintiff, and made comments
18 directed at Plaintiff, frequently combining an unrestrained willingness to state his
19 physical, sexual attraction to Plaintiff with a parallel and self-described role as Plaintiffs
20 "boss." In addition, Guillen made repeated references to Plaintiffs age, and to Guillen's
21 stated expectation that Guillen and Plaintiff would be together, "especially" after their
22 "retirements from the City.
23 18. Guillen frequently used words of physical attraction toward Plaintiff. He
24 did so while acknowledging that Plaintiff did not want to hear such words and
25 considered the remarks unwelcome and unprofessional. Guillen described Plaintiff as a
26 "hattie," a "blonde worker bee," "beautiful", and a "blonde hattie," and made several
27 remarks about how attractive he found Plaintiff to be. Guillen called Plaintiff "Missy,"
28 "Girlfriend," "Good Looking." and "Pretty," along with other phrases, nicknames, and
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MILLER V. CITY Of CARMEL-BY-THE-SEA COMPLAINT
0008
0
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1 terms of endearment that might be common for a girlfriend or sexual partner, but which
2 were offensive, demeaning, harmful, and inappropriate when made to Plaintiff and
3 when made in or about the workplace, and which were directed specifically at Plaintiff.
4 19. Guillen called himself Plaintiffs "secret admirer," told Plaintiff he "think[s]
5 about her all the time," and pointed out that Plaintiff was letting work "interfere" with
6 Guillen's "friendship" with Plaintiff. He told Plaintiff that he "adored" her. Guillen's
7 comments diminished Plaintiffs professional status, and conveyed Guillen's message
8 that Plaintiffs continued employment was directly tied to her status as an object of
9 physical and social attraction to Guillen, who repeatedly emphasized his status as
10 Plaintiffs direct supervisor at work. Guillen frequently reminded Plaintiff that he was
11 Plaintiffs "boss. Guillen characterized himself to Plaintiff as "a burden you will carry
12 the rest of your life."
13 20. Guillen stated that he was free to comment on Plaintiffs looks, clothing,
14 hair styles, and appearance, all the while coupling his remarks with his reminders that
15 he was Plaintiffs "boss."
16 21. Guillen made many other offensive and inappropriate statements directed
17 at Plaintiff specifically, and made by Guillen despite Plaintiffs protestations. Guillen
18 specifically acknowledged that Plaintiff did not want, solicit, or enjoy such statements
19 about her appearance or his attraction for her, and that she was embarrassed by his
20 unwelcome statements and advances, yet he insisted upon his right to make such
21 comments and references. Guillen asserted a right to tell Plaintiff anything he wanted
22 to say. He made unsolicited and unwelcome comments to Plaintiff that were childish
23 and offensive.
24 22. Guillen's continuing course of conduct toward Plaintiff included making
25 numerous phone calls and other transmissions to Plaintiff to "chit chat" about personal
26 matters or non-urgent matters tangentially related or not related to work, frequently
27 before or after work, including late at night or early in the morning, or even while he was
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MILLERV. CITY OF CARMEL-BY-THE-SEA COMPLAINT
0009
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1 on the way to work and even while Plaintiff was engaged in other work projects that
2 required her full attention.
3 23. Guillen's continuing course of conduct toward Plaintiff included unwanted
4 touchings by Guillen at work, including Guillen hugging Plaintiff and messing up
5 Plaintiffs hair in a flirting way, among other physical actions. In addition, Guillen came
6 into Plaintiffs office and tried to distract her from her work by trying to put his arm
7 around Plaintiff so she would get off the phone and pay attention to him. Guillen
8 conveyed the message to Plaintiff that he viewed Plaintiff and other female employees
9 as playthings, creating an atmosphere that was demeaning to Plaintiff and to other
10 women who were targeted by Guillen for such attention and to women who Guillen
11 chose not to favor with his attention. Guillen set a tone of harassment and
12 discrimination within the workplace.
13 24. Guillen was careful to avoid being seen by third parties in his activities
14 toward Plaintiff. On at least one occasion, Guillen acknowledged that he should not try
15 to hug Plaintiff in the presence of Plaintiffs female co-workers, so he told her he would
16 give her a "virtual hug."
17 25. Guillen made unwanted and unwelcome comments that Plaintiff
18 reasonably understood in context to be sexual in nature, which included an unwelcome
19 effort by Guillen to get together with Plaintiff. Plaintiff rejected every solicitation by
20 Guillen. Plaintiff did not engage in any inappropriate conduct of any kind with Guillen.
21 26. During this same continuing course of conduct and violations of law,
22 Guillen demonstrated to Plaintiff that Guillen had complete power over Plaintiffs
23 employment and compensation, and that Guillen's power at City Hall was unchecked.
24 27. Guillen frequently commented on Plaintiffs age, saying that she was "that
25 age," that he envisioned himself and Plaintiff retiring at the same time, and that he knew
26 they would be together in some way after retirement Guillen emphasized that he
27 believed that Plaintiff was approaching retirement age, indicating that he controlled how
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MILLER V. CITY OF CARMEL-BY-THE-SEA COMPLAINT
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1 long Plaintiff could work for the City and therefore determine her career and how much
2 money she would receive in her retirement.
3 28. Guillen intimidated Plaintiff at work and in his dealings with her, and she
4 reasonably believed that she had no adequate or effective remedy to address Guillen's
5 conduct, statements, and hostile workplace. Plaintiff reasonably believed that if she
6 challenged Guillen for his conduct and statements, her position and professional status
7 would be injured, her career would be jeopardized, and she would lose all or part of her
8 salary and benefits.
9 29. In early 2006, after lengthy private meetings behind closed doors with
10 Female A, Guillen told Plaintiff that he would give a retroactive salary increase to
11 Female A. Plaintiff, the City's Human Resources Manager, analyzed the proposed
12 increase and determined, based upon her review and the City's policies and practices,
13 that the retroactive salary in effect was a bonus, and it was both unusual and
14 unnecessary. Guillen unilaterally decided that he would give a retroactive 10% salary
15 bonus (going back three years) to Female A, which resulted in an unprecedented bonus
16 payment for work already performed by Female A. There was no legitimate
17 governmental reason for the City to pay the bonus. The funds were not budgeted or
18 approved after a public hearing as required by City policy. The bonus was authorized
19 only by Guillen. Plaintiff and other females who did not have relationships such as
20 Female A's relationship with Guillen were not offered such increases of bonuses by
21 Guillen.
22 30. As Human Resources Manager, Plaintiff met in face to face meetings with
23 Guillen and objected to the retroactive bonus payment. On January 7, 2006, Guillen
24 sent Plaintiff an email in which he explained that Plaintiff should not "concern herself
25 with Female A's bonus and compensation. Guillen stated that the payments were
26 being provided by Guillen at this time because Plaintiff allegedly made a "mistake."
27 Guillen stated that he had already told Female A that Plaintiff was responsible and had
28 made the mistake. Guillen told Plaintiff that Female A "understands" that Plaintiff made
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MlLLER V. ClTY OF CARMEL-BY THE -SEA CoMPlAINT
0011
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1 the mistake. Guillen falsely blamed Plaintiff and impugned her professionalism.
2 impairing Plaintiffs ability to perform her job with the City.
3 31. There was no "mistake." Guillen was the only person who was allowed to
4 supervise Female A. and Guillen was directly in charge of fixing her salary. Guillen's
5 statement that he blamed Plaintiff was followed immediately by another statement by
6 Guillen in writing that. "You know that I completely adore you and nothing I mean
7 nothing will ever interfere with that." That statement. and Guillen's continuing course of
8 conduct toward Plaintiff with its messages of Guillen's power as the "boss" and his
9 physical attraction toward Plaintiff. continued to be unwelcome to Plaintiff and
10 inappropriate in the workplace. Plaintiff reasonably understood that Guillen's favoritism
11 toward Female A was more important to Guillen than the professional reputation of
12 Plaintiff as the Human Resources Manager or the integrity and transparency of the
13 City's classification and budgeting systems or the City's resources and taxpayer dollars.
14 The message to Plaintiff from Guillen was that Plaintiff was prohibited from questioning
15 Guillen's conduct with Female A.
16 32. Later in 2006, Guillen made the decision, without consulting the Human
17 Resources Manager, that he would reclassify Female A into an even higher-paid
18 Director position. By that point, Guillen had eliminated approximately six Director
19 positions using a pretext of budgetary savings. He was in the process of eliminating
20 another Director position as well, held by a female who had not received favoritism from
21 Guillen, while at the same time increasing pay for Female A.
22 33. Guillen created a new Director position for Female A, with a job
23 description prepared and created by Female A and Guillen in private. The job
24 description proposed by Female A and submitted to Guillen was professionally
25 inadequate and did not meet City job description standards or criteria for a Director
26 position. The description was tailored solely for Female A. and was intended to make
27 her a Director despite her lack of qualifications for the position. Plaintiff objected to the
28 significant deviations from policy and practice and modified the job description. advising
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1 Guillen that Female A should work toward meeting the minimum qualifications if he
2 intended on recommending her for this reclassification. Shortly thereafter, Guillen gave
3 Female A the position. Plaintiff then insisted that under standard City practices, Female
4 A should only be placed at Step 1 of the salary scale because Female A did not meet
5 the minimum qualifications for the job description. The new Director position did not
6 meet City practices for such a position.
7 34. Also in late 2006, Guillen decided to force from employment a female
8 career management employee over the age of 40 who had been employed for many
9 years. The employee was professional and independent of Guillen, had not formed any
10 kind of personal relationship with Guillen, and was aware of Guillen's favoritism toward
11 certain female employee(s). The employee was a talented, capable, competent and
12 well-regarded City employee. Guillen told Plaintiff that Guillen personally did not like
13 this employee, and that Guillen and the Mayor wanted the employee out of City service.
14 35. As with other employees that Guillen wanted to force out, Guillen began a
15 series of actions designed to make the management employee uncomfortable and
16 discredited in order to force her from employment. He then made threats of
17 termination, even though there was no basis for termination, and offered a severance
18 payment ifthe management employee resigned.
19 36. Guillen and the City then were advised in writing by the employee that the
20 employee "has been concerned about equal treatment within the workplace, including
21 equal treatment [for women]" as a result of events at the City, "especially over the past
22 few years." The employee explained that the City's settlement offer was inadequate to
23 compensate for the hardships caused by Guillen's favoritism. Shortly thereafter,
24 Guillen on behalf of the City agreed to increase the severance payment to the
25 employee.
26 37. Guillen withheld the management employee's written comments about his
27 violations of "equal treatment" for female employees from Plaintiff, the Human
28 Resources Manager. and he did not report them or ask that they be investigated.
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1 38. By May 2007, the talk at City Hall increased about Guillen's relationship
2 with Female A and, recently, with another female employee. Female B. The talk was
3 open and widespread and was known to City employees and others, including the
4 Mayor and City Attorney. Guillen at that time knew that the comments were being
5 made about him and Female A and Female B. Guillen knew that the comments were
6 adversely affecting the workplace, particularly in regard to women in the workplace, for
7 whom the relationships with Female A and Female B were perceived as inappropriate.
8 unprofessional and based on favoritism.
9 39. In May 2007, Guillen found a small newspaper article about a male city
10 administrator in Hooksett, New Hampshire, who reportedly was having an affair with a
11 female subordinate. The city administrator in that case summarily fired four female
12 employees who talked about the affair. Attaching the newspaper article, Guillen wrote
13 an email to six City female employees, including Plaintiff, and two male employees,
14 including the police chief, instructing the recipients that there was "reason to be careful
15 what we say in the workplace!" Guillen's email was an acknowledgment by Guillen that
16 he knew that his relationships with certain females were adversely affecting the work
17 environment. The email was reasonably perceived by Plaintiff as a threat to Plaintiff
18 that if she challenged Guillen or commented upon Guillen's relationships with Female A
19 and/or Female B, she would suffer adverse employment actions, including summary
20 termination by Guillen.
21 40. Guillen then followed up with Plaintiff specifically, instructing her to obtain
22 a legal opinion from the City's labor law attorney, Cynthia O'Neill of the Liebert Cassidy
23 law firm. O'Neill was the attorney Plaintiff most often worked with in order to carry out
24 Plaintiffs day to day professional duties with the City. Guillen ordered Plaintiff to have
25 Attorney O'Neill provide "the case law and other opinions on this matter" because "it's
26 time we put a stop to" the "rumors in this City." O'Neill then provided a written legal
27 opinion to the City at City expense, which Plaintiff provided directly to Guillen.
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1 41. Plaintiff and others reasonably considered Guillen's email threat and the
2 follow up with Plaintff and O"Neill to be an effort by Guillen to use City resources, the
3 threats of termination, and the City's outside law firm to silence the workers about
4 Guillen's conduct. Guillen put the City's labor law attorneys in position to enforce
5 Guillen's efforts. Plaintiff is informed and believes, and on that basis alleges, that
6 Attorney O'Neill did not report the incident to the Mayor, City Council, or City Attorney,
7 did not investigate whether the law firm was being used by Guillen to threaten or scare
8 female employees who were concerned about inappropriate activity by Guillen, made
9 no effort in regard to investigating whether Guillen was involved in any inappropriate
10 relationship with any subordinate employee, and did not take steps to evaluate whether
11 the "rumors" that concerned Guillen were true or a matter of concern to the female
12 employees.
13 42. Guillen was involved in an inappropriately close relationship in the
14 workplace with Female B, who had been hired by Guillen in 2005 and who had received
15 a favorable and non-standard pay raise from Guillen within the first six months of her
16 employment. By March 2007, Guillen had "reclassified" Female B's position and
17 provided her with favorable salary, benefits, and working conditions, including
18 responsibility for actions that she had never performed previously and for which she
19 needed training to perform. Female B's work activities involved spending private time
20 with Guillen, going to meetings with Guillen, taking steps to deceive other employees
21 about her activities. and jointly undertaking City tasks with Guillen.
22 43. In or about May 2007, Guillen continued to make inappropriate comments
23 and suggestions to Plaintiff, including comments about whether Plaintiffs husband was
24 in town or away from home. Guillen invited himself over to Plaintiffs house, telling
25 Plaintiff she could watch a sporting event with him and eat dinner together at her house
26 while her husband was gone. Plaintiff rejected the solicitation.
27 44. In May 2007, Guillen created a new job title for Female B. via the draft
28 City budget, giving her power and responsibility not approved by the Human Resources
13
M!Ll.ERV. Ci"TY OF CARMEL-BY-THE-SEA CoMPLAINT
0015
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1 Manager and not approved at the time by the City Council. Contrary to standard City
2 policy, Guillen and Female 8 did not create a job description and Female B was not
3 given a performance evaluation. Plaintiff, the Human Resources Manager, was
4 excluded from personnel/human resources decisions involving Female 8, because
5 Plaintiff had objected to Guillen's similar favoritism toward Female A. Female B's salary
6 had been increased by about 70% since 2005, far above that for other employees and
7 positions of a similar nature in the City, including Plaintiff's.
8 45. In Spring 2007, Guillen told Plaintiff that Plaintiff was "that age" where she
9 would want to retire. He told Plaintiff that he was going to eliminate her position in the
10 future, and that once he eliminated her position, he would be interested in bringing her
11 back as a consultant to do risk management services for the City on a part-time, hourly
12 basis. Plaintiff was surprised by Guillen's comments about an involuntary "retirement"
13 and about being "that age," and did not support Guillen's plans for Plaintiff to be forced
14 into retirement by Guillen. Plaintiff did not agree with Guillen's comments, or agree to
15 "retire."
16 46. In July 2007, Guillen made sure that Female B was officially reclassified
17 with a 19% raise.
18 47. In October 2007, Female A's husband was working for an employer other
19 than the City. The husband was notified that his position could be eliminated.
20 48. Within days of the notice for Female A's husband, Guillen unilaterally
21 authorized a raise for Female A from Step 1 to Step 5, retroactive to July 1, along with
22 an additional adjustment. Before making the upward and retroactive change, Guillen
23 did not consult with Plaintiff, the Human Resources Manager charged with the
24 responsibility for personnel matters. Guillen made it clear to Plaintiff that his decision
25 was not open for discussion, that Plaintiff had no role in the decision, and that Plaintiff
26 could not challenge it. Guillen had overtly taken over Plaintiff's job responsibilities, and
27 he did so out of favoritism toward Female A.
28
14
MILLER V. CITY OF CAR ME lBY-THE-SEA COMPlAINT
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1 49. This latest raise boosted Female A's retirement benefits by giving her the
2 increase for the entire 2007-2008 fiscal year, which would serve as the base year for
3 calculating retirement payments. The total raise for Female A since 2003 was
4 approximately 83%, far above that for other female and male employees and positions
5 of a similar nature in the City, including Plaintiffs. The raises, the timing, and the
6 unilateral process used by Guillen were far more favorable to Female A than for other
7 women in the workplace, including Plaintiff, who did not establish similar personal
8 relationships with Guillen.
9 50. In October 2007, Plaintiff asked for routine authorization to use leave time
10 to care for a family member. Guillen said he approved the leave in discussions directly
11 with Plaintiff. Shortly thereafter, Female B challenged Plaintiffs leave, singling out
12 Plaintiff. City staff then contacted Attorney O'Neill in an effort by Female B to challenge
13 Plaintiffs routine entitlement to leave and embarrass or humiliate Plaintiff. In December
14 2007, Female B challenged Plaintiffs right to a small reimbursement under a benefit
15 provision that had been in place for years, again singling out Plaintiff. Plaintiff was
16 advised by the City that Guillen had been the instigator of the challenge, and Plaintiff
17 reasonably understood that Female B was acting with the consent of Guillen in both
18 cases. Plaintiff was being ostracized and isolated by Guillen, while he continued to
19 undercut her role in the office.
20 51. In November 2007, Plaintiff arranged an on-line sexual harassment
21 training program for City supervisors. Of the thirty-six City employees enrolled in the
22 program, only Guillen never completed the program. Guillen never even started it
23 52. In January 2008, Guillen began to take steps to force out another
24 longtime, female employee (over the age of 50) in City Hall. Guillen considered the
25 employee to be too old and not loyal enough to Guillen. This employee had worked for
26 the City for many years, was well regarded by others including members of the public,
27 and was privy to certain aspects of Guillen's conduct and ways of doing business. She
28 earlier had witnessed the Mayor's statement about Guillen's relationship with Female A,
15
MILLERV. CIT'I OF CARMEL-BY-THE-SEA COMPLAINT
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1 when the Mayor stated at City Hall that Guillen "should take it out of town." Guillen
2 hired a younger "temporary" worker to take over the duties of this long time, female
3 employee and to effectively isolate her in order to force her from employment.
4 53. After a few weeks of employment for the "temporary worker, Guillen told
5 Plaintiff that he had a secret intent of replacing the long time employee with the
6 "temporary" worker, and that his plan was "not to leave this room." The plan was illegal
7 under governing law and City policies and ordinances. The "temporary" worker,
8 recently laid off from her job working for Female A's husband, was considerably
9 younger than the worker that she was hired to replace. The temporary worker was
10 assigned to provide support for Female Band was the means of forcing the long time
11 employee from her position.
12 54. In or about January 2008, Female A's husband's position was eliminated
13 from another City. Plaintiff is informed and believes that Female A blamed Plaintiff for
14 not preventing that lay-off, because Plaintiff's husband was in a position to oppose the
15 lay-off before it happened.
16 55. In March 2008, Guillen gave Female B another 5% raise. Guillen claimed
17 that Female B should get another raise because she had been successfully performing
18 her management job, which was not a standard City rationale for such raises.
19 56. On April15, 2008, Guillen completed his effort to force out the long time
20 employee who had been effectively replaced by the "temporary worker. Guillen
21 negotiated and approved a financial settlement for the long time employee without first
22 notifying the City Attorney or working with Plaintiff on compliance requirements that
23 normally would have been within Plaintitrs job responsibilities. The settlement was
24 contrary to established City policies and regulations binding on the City.
25 57. On April 16, 2008, Guillen told Plaintiff that he was eliminating Plaintitrs
26 position. Plaintiff objected. At Guillen's direction, Plaintiff was directed to be the person
27 who would prepare a payroll budget that eliminated Plaintiff's own job. Guillen claimed
28 to Plaintiff that her termination was intended so Guillen would pay for new firefighter
16
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1 positions for the 2008-2009 fiscal year. After that, Guillen did not work with Plaintiff, did
2 not respond to her communications, and went through other staff in order to
3 communicate with Plaintiff.
4 58. The decision to force Plaintiff out of her employment was part of a course
5 of events of Guillen's continuing violations of the law toward Plaintiff.
6 59. On April 28, 2008, Guillen and Female B met with a new consultant who
7 introduced herself to City staff as the "HR person" for the City, although Plaintiff was still
8 in her position. The new "HR person" appeared to have a pre-existing relationship with
9 Female A, and demonstrated the relationship by hugging Female A in the
10 Administration office of the City, near Guillen's office. There were no City funds
11 budgeted for the new HR person, who began work on a consultant basis at $90 per
12 hour. The new HR person was directed to meet with Plaintiff so that Plaintiff could help
13 her do an HR audit that facilitated Plaintiffs own termination.
14 60. Between April16, 2008 and May 20, 2008, Guillen continued to isolate,
15 embarrass. and stigmatize Plaintiff. Guillen removed Plaintiffs responsibilities, duties,
16 status, and ability to perform her job. He demonstrated to the other workers in the
17 workplace his control and dominion over Plaintiff and over her career in such a way as
18 to force Plaintiff from her position with the City, and he did so on the basis of gender
19 and age discrimination, harassment, and retaliation against Plaintiff, including Plaintiffs
20 resistence to Guillen's favoritism toward Female A and Female B.
21 61. On May 20, 2008 Guillen presented the elimination of Plaintiffs position to
22 the City Council at a public meeting without comment or public discussion, by
23 presenting the draft budget for fiscal year 2008/2009. Within the draft budget, Guillen's
24 introductory remarks included his intent to eliminate Plaintiffs position. Guillen added
25 no firefighter positions to the budget.
26 62. On or about May 20, 2008, Plaintiffs legal counsel wrote to the Mayor and
27 City Council of the City, formally advising them of Guillen's sex-based discrimination
28 and harassment and Guillen's age-based discrimination in forcing Plaintiff from her
17
MILLERV. CiTY OF CARMEL-BY-THE-SEA COMPLAINT
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1 position. Plaintiff asked that the City Council take prompt and effective action to reduce
2 the injury to Plaintiff, to prevent Guillen from taking action in regard to her Complaint,
3 and to preserve documentary evidence, including Guillen's emails and phone records,
4 some of which Guillen kept at his home even though they were official City records.
5 63. On May 21, 2008, Plaintiff was placed on sick leave after she was
6 evaluated and treated for symptoms caused by the illegal actions of the City.
7 64. Plaintiffs May 20, 2008 letter also was sent to the City Attorney. On May
8 22, 2009, the City Attorney's Office promised to prepare "a response" to the May 20
9 letter of Plaintiffs counsel.
10 65. The Mayor, City Council, and City Attorney did not respond further, and
11 took no prompt or effective action in reaction to Plaintiffs May 20, 2008 letter. Instead,
12 they referred Plaintiffs letter to Guillen for him to handle, without any investigation or
13 evaluation of the conduct of Guillen or the assertions of Plaintiff, all in violation of state
14 law and other policies and procedures designed to prevent retaliation and injury to
15 workers who complain of inappropriate sex and age-based violations.
16 66. On May 23, 2008, Guillen wrote directly to Plaintiff at her home. Guillen
17 knew that Plaintiff was away from work for medical reasons, that Plaintiff was claiming
18 harassment and discrimination carried out by Guillen on behalf of the City, that Plaintiff
19 had retained counsel, and that Plaintiff had requested that Guillen not contact her.
20 Guillen declared that Plaintiff was required to report for work. It was clear from the face
21 of the May 23 letter that Guillen was authorized by the Mayor, City Council and City
22 Attorney to continue to directly supervise Plaintiff in her employment, despite the
23 serious nature of Plaintiffs complaint. The Guillen letter of May 23 showed that Guillen
24 was actively and directly discriminating, harassing, and retaliating against Plaintiff.
25 67. On or about May 29, 2008, Plaintiff objected in writing to Guillen's
26 direction that she return to work under his supervision. She advised the Mayor. City
27 Council, and City Attorney that their actions in authorizing Guillen's actions were
28 contrary to law and showed that the City stood behind Guillen's "behavior and tactics."
18
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1 The City never responded to Plaintiffs May 29, 2008 letter, and took no prompt or
2 effective action in response to the letter.
3 68. In June 2008, Female A announced her pending retirement from the City.
4 Plaintiff is informed and believes and on that basis alleges that Guillen allowed
5 Female A to stay on the payroll and to receive additional salary and benefits in another
6 act of favoritism by Guillen, although the amounts were not budgeted by the City
7 Council and the financial arrangement was not consistent with standard City practice.
8 69. On or about July 28, 2008, Plaintiff made a formal complaint with the
9 California Department of Fair Employment and Housing (DFEH) in regard to the City
10 and Guillen. Plaintiff alleged sex discrimination and harassment, preferential treatment,
11 inappropriate language and touching, hostile work environment, retaliation, and sex-
12 based and age-based discrimination.
13 70. DFEH issued a right to sue letter on or about July 28, 2008, advising
14 Plaintiff of her right to sue by filing a Complaint in Superior Court no later than July 28,
15 2009.
16 71. On or about July 30, 2008, Plaintiff served the DFEH complaint and
17 related documents on the City and City Attorney. The City did not respond for several
18 weeks, and the City took no prompt or effective action, or provided any remedy to
19 Plaintiff. The City Attorney's long-promised "response" to Plaintiffs May 20, 20081etter
20 was never provided ..
21 72. In or about October 2008, the City advertised for applicants for a position
22 which would essentially replace Employee A's position, at a part time salary which was
23 about one-third the hourly rate of Employee A, and without benefits.
24 73. On October 17, 2008, Plaintiffs counsel wrote to the Mayor and City
25 Council, summarizing Plaintiffs complaint and the City's failure to provide a prompt and
26 effective remedy. The Mayor and City Council did not respond.
27 74. On October 23, 2008, Plaintiff sent a 13-page letter to the City and City
28 Attorney in regard to the conduct of Guillen, providing additional specific information to
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1 the City, quoting inappropriate emails from Guillen, recommending that the City
2 interview eight identified persons, and referencing other persons with direct knowledge
3 of Guillen's actions. Plaintiff is informed and believes that the City did not interview all
4 of those persons or analyze the documentary evidence in the City's actual or
5 constructive possession, and did not take reasonable steps to acquire material
6 information. Plaintiff is informed and believes and on that basis alleges that Guillen put
7 Female B in charge of the City's actions as to Plaintiffs claims, including the alleged
8 retention of documents and communicating with City employees about the matter,
9 effectively allowing Guillen to control and monitor the City's actions in regard to claims
1 0 about Guillen's conduct, and providing notice to the employees that Female B was
11 authorized by the City and Guillen to monitor the City's actions.
12 75. As a direct and proximate result of the actions of the City, Plaintiff remains
13 away from work and is unable to pursue her career with the City as a Human
14 Resources professionaL She has exhausted her leave, been denied wages and
15 benefits, continues to lose wages and benefits, and has and continues to incur other
16 losses directly and proximately caused by Plaintiff, including but not limited to back pay,
17 front pay, job opportunities, medical costs, benefits, lost interest, loss of retirement
18 opportunities and amounts, and emotional distress. Plaintiff has been constructively
19 discharged by the City from her employment with the City.
20 76. The City's acts and omissions created an intimidating, oppressive, hostile.
21 and offensive working environment that interfered with Plaintiffs emotional well-being
22 and adversely affected the terms and conditions of employment
23 77. The acts and omissions of Guillen and the City constitute a continuing
24 violation of the law against Plaintiff, as part of the discrimination, harassment, and
25 efforts by Guillen ultimately to force Plaintiff from her employment and career. The City
26 engaged in successive acts of harassment over the course of years of Plaintiffs
27 employment that constituted an actionable continuing violation and course of conduct
28 under the law.
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1 78. As a direct and proximate result of the actions of the City, Plaintiff has
2 suffered other consequential losses and damages in the nature and amount to be
3 proved at trial.
4 79. Plaintiff is entitled to recover from the City her attorney fees and litigation
5 expenses.
6 WHEREFORE, Plaintiffs seeks relief as described below.
,
7 FIRST CAUSE OF ACTION
8 (Sex-Based Discrimination in Employment)
9 80. Plaintiff hereby incorporates by reference all of the preceding allegations
10 as iffully set forth herein.
11 81. The City had a duty not to discriminate against Plaintiff in the terms and
12 conditions of her employment on the basis of her gender and had a duty to prevent
13 such discrimination from occurring.
14 82. The City subjected Plaintiff to discrimination based on Plaintiffs gender.
15 Plaintiff suffered adverse employment actions including but not limited to a hostile work
16 environment created by discrimination based on gender and the loss of Plaintiffs
17 employment and career.
18 83. As a direct, foreseeable and proximate result of the City's acts and
19 omissions, Plaintiff has suffered substantial emotional pain, suffering, inconvenience,
20 mental anguish, loss of enjoyment of life, and other nonpecuniary losses of the nature
21 and type commensurate with the City's acts and omissions.
22 84. Plaintiff has suffered and continued to suffer lost earnings and other
23 employment benefits, future lost earnings, lost interest, medical expenses, mental
24 distress and mental suffering, and other general and special damages, all to Plaintiffs
25 damage in an amount to be proven at trial.
26 85. Plaintiff has been required to retain legal counsel to vindicate her statutory
27 rights and is entitled to recover attorney fees and litigation expenses.
28 WHEREFORE, Plaintiff prays for judgment as described below.
21
MILLERV. C!1Y OF CARMEL-BY-THE-SEA COMPLAINT
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1 SECOND CAUSE OF ACTION
2 (Age-Based Discrimination in Employment)
4 as if fully set forth herein.
5 87. The City had a duty not to discriminate against Plaintiff in the terms and
6 conditions of her employment on the basis of her age and to prevent discrimination and
7 harassment from occurring.
8 88. Plaintiff was subjected to a continuing discrimination by the City based on
9 her age that is in violation of the law.
10 89. Plaintiff was discriminated against with respect to her compensation,
11 terms. conditions, or privileges of employment.
13 omissions. Plaintiff has suffered substantial emotional pain, suffering, inconvenience,
15 and type of commensurate with the City's acts and omissions.
17 employment benefits, future lost earnings, lost interest, medical expenses. mental
19 damage in an amount to be proven at triaL
23 THIRD CAUSE OF ACTION
24 (Sexual Harassment in Employment)
26 as if fully set forth herein.
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1 94. The City had a duty to not harass Plaintiff in the terms and conditions of
2 her employment on the basis of her gender. The City had a duty to take all reasonable
3 steps to prevent sexual harassment from occurring.
4 95. The City subjected Plaintiff to unwelcome, degrading and harassing
5 comments, as described above, based on Plaintiffs gender.
6 96. The City's harassing comments were so severe and pervasive that they
7 created a hostile work environment and adversely affected the terms and conditions of
8 Plaintiffs employment.
9 97. The City's harassment of Plaintiff based on her gender, and failure to
10 prevent the harassment are in violation of the law.
11 98. The City's comments and acts of harassment were willful and intentional
12 with disregard for the rights and reasonable sensibilities of Plaintiff. Plaintiff was
13 subjected to unwelcome sexual pressure and verbal conduct of a sex-based nature.
14 Guillen's behavior with favored female employees conveyed a demeaning message to
15 Plaintiff and other female employees that personal favors would be rewarded with
16 higher pay, bonuses and other job benefits. Plaintiff was subjected to unwelcome
17 sexual advances by Guillen, whose conduct towards Plaintiff and other females was
18 sufficiently pervasive and offensive so as to also alter the conditions of employment and
19 create an abusive, intimidating and hostile work environment.
28
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WHEREFORE, Plaintiff prays for judgment as described below.
FOURTH CAUSE OF ACTION
(Failure to Take All Reasonable Steps to
Prevent Sexual Harassment from Occurring)
102. Plaintiff hereby incorporates by reference all of the preceding allegations
as if fully set forth herein.
103. The City had a duty to take all reasonable steps to prevent sexual
harassment from occurring.
104. The City and its agents, officers, officials and/or employees, failed to take
all reasonable steps necessary to prevent sexual harassment in employment from
12
13
14
occurring, and to act promptly and effectively to prevent and remedy the harassment.
105. The City had a duty to provide City employees with a confidential, secure
and effective way to voice and resolve their complaints. The City provided no such
15
16
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18
system.
106. The City delegated its personnel decisions to Guillen and unreasonably
allowed him to engage in inappropriate and unethical employment-related actions that
allowed for favoritism, created a hostile work environment and put Guillen outside the
19
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22
law. The Mayor and other top City officials set a tone that allowed, permitted, and
effectively encouraged Guillen's actions.
107. The City failed to reasonably prevent Guillen's abuse of his power, failed
to investigate and prevent Guillen's continuing violation of Plaintiff and other employees'
23
rights by forcing employees from City employment on the basis of sex and gender,
24
failed to remedy the complaints or timely and adequately investigate complaints, failed
25
to take appropriate action or oversight in regard to Guillen's actions, and endorsed,
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ratified, and sanctioned Guillen's actions.
MILLERV. CITY OF CARMEL-BY-THE-SEA
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COMPLAINT
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7 distress and mental suffering, and other general and special damages, all to Plaintiff's
12 FIFTH CAUSE OF ACTION
13 (Failure to Take All Reasonable Steps to Prevent
Discrimination and Harassment Based on Age from Occurring)
14
15
111. Plaintiff hereby incorporates by reference all of the preceding allegations
as if fully set forth herein.
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112. The City had a duty to take all reasonable steps to prevent discrimination
and harassment based on age from occurring.
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24
113. The City and its agents, officers, officials and/or employees, failed to take
all reasonable steps necessary to prevent harassment in employment based on age
from occurring, and to act promptly and effectively to prevent and remedy harassment.
114. The City failed to reasonably prevent Guillen's abuse of his power, failed
to investigate and prevent Guillen's continuing violation of Plaintiff and other employees'
rights by forcing employees from City employment on the basis of age, failed to remedy
the complaints or timely and adequately investigate complaints, failed to take
25
appropriate action or oversight in regard to Guillen's actions, and endorsed, ratified, and
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sanctioned Guillen's actions.
MILLER V. CITY OF CARMEL-BY THE-SEA
25
CoMPLAINT
0027
0 0
4 and type of commensurate with the City's acts and omissions.
8 damage in an amount which will be proven at triaL
1 0 rights and is entitled to recover attorney fees and litigation expenses.
12 SIXTH CAUSE OF ACTION
13 (Retaliation in Violation of Law)
14 118. Plaintiff hereby incorporates by reference all preceding allegations as if
15 fully set forth herein.
16 119. Plaintiff's expression and activities in questioning Guillen and opposing
17 the unwarranted and extraordinary pay. working conditions, and benefits for Female A
18 and Female B, in rejecting Guillen's inappropriate advances, in refusing to engage in
19 inappropriate conduct with Guillen, in complaining to the City about Guillen, and in other
20 respects relating to Plaintiff's performance of her duties were expression and activities
21 protected by law.
22 120. The Ctty retaliated against Plaintiff for her protected expression and
23 activities. The retaliation included falsely blaming Plaintiff for Guillen's actions in regard
24 to the pay and benefits of Female A and Female B; stigmatizing and isolating Plaintiff in
25 her professional duties and responsibilities; advising Plaintiff and others that her job
26 had been terminated; proposing and approving the elimination of Plaintiff's position;
27 allowing and permitting Guillen to punish and threaten Plaintiff for reporting her claims
28 and for speaking out; taking the actions described above in forcing Plaintiff from her job
26
MILLERV. CITY OF CARMEL-BY THE-SEA COMPLAINT
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1 and her profession; and denying Plaintiff any prompt or effective remedy after Plaintiff
2 communicated her complaints to the City. Other employees, including Female A and
3 Female B, who did not engage in the expression and activities of Plaintiff, did not suffer
4 the same or similar retaliatory acts.
16 PRAYER FOR DAMAGES
17 Plaintiff prays for relief as follows:
18 1. For damages for loss of wages, benefits, and other compensation or
19 compensatory damages, interest on lost wages, benefits and
20
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22
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24
25
26
27
28
2.
3.
4.
compensation, and back pay and front pay relating to Plaintiff's
employment, along with all amounts necessary to make Plaintiff whole;
For damages for emotional and physical injuries proximately caused by
Defendant's conduct, acts and omissions, including medical expenses
and other special damages;
For attorney fees and litigation expenses, as permitted by law; and
For prejudgment interest and other interest as provided by law;
27
MILLERV CITY OF CARMEL-BY-THE-SEA COMPLAINT
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5. For such other relief as is necessary and just, and as the Court may
direct.
Dated: June 17 2009
LAW OFFICES OF MICHAEL W. STAMP
Attorneys for Plaintiff,
28
COMPLAINT
0030
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY Reserved for Clerk's File Stamp
Miller, Jane Kingsley,
Plaintiff/Petitioner
FILED
JUN I 7 2009
vs.
NNIEMAZZEI
Vll-l::tm.OF THE SUPERIOR COURT
City of Cannel-by-the-Sea,
ondent

CASE MANAGEMENT NOTICE Case No. M99513
Case Management Conference Date: December 17, 2009 at 9:00a.m.
1. NOTICE is hereby given that a CASE MANAGEMENT STATEMENT shall be filed with the Court and
served on all parties NO LATER than: 30 days before the above date of the initial CASE
MANAGEMENT CONFERENCE.
2. No party may stipulate to extend any of the dates set above.
3. At the CASE MANAGEMENT CONFERENCE, it is expected that trial counsel for each party and
each self-represented party shall attend and be fully prepared to participate effectively in the
conference.
4. On receipt of the CASE MANAGEMENT STATEMENT and at or before the CASE MANAGEMENT
CONFERENCE the Court may make the following orders:
a. refer the matter to arbitration, the court-directed mediation program, or other alternative dispute
resolution procedures;
b. identify the case as one which may be protracted and in need of special attention;
c. assign the case to a particular judge for all purposes:
d. assign a mandatory settlement conference and trial date;
e. make orders establishing discovery schedules and cut-offs, including expert witness disclosure
and discovery;
f. make appropriate Trial Management Orders; and/or
g. make any other orders to achieve the interests of justice and the timely disposition of the case,
including the setting of additional Status Conferences.
5. It is the policy of this Court that all complaints and cross-complaints be filed and served, all
challenges to the pleadings be heard, and the matter be at-issue no later than 180 days from the
filing of the complaint. It is the policy of this Court that all civil matters be resolved in no more than
12 to 24 months of the filing of the complaint.
6. Failure to file the CASE MANAGEMENT STATEMENT, attend the CASE MANAGEMENT
CONFERENCE and participate effectively, or comply with any CASE AND TRIAL MANAGEMENT
RULES may result in sanction.
7. II is the responsibility of the parties and/or their attorneys to be familiar with the Monterey County
Case and Trial Management Policies and Rules and to comply therewith.
Date: June 17, 2009
BY ORDER OF THE PRESIDING JUDGE
By:-----=---:--:::--:------
Deputy Clerk
Page 1 of 5
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Alternative Dispute Resolution
OPTIONS FOR RESOLVING YOUR DISPUTE
There Are Alternatives to Going to Trial
Did you know that 95 percent of all civil cases filed in court are resolved without going to trial? Many
people use processes other than trial to resolve their disputes. These alternative processes, known as
Alternative Dispute Resolution or ADR, are typically less formal and adversarial than trial, and many use a
problem-solving approach to help the parties reach agreement.
Advantages of ADR
Here are some potential advantages of using ADR:
Save Time: A dispute often can be settled or decided much sooner with ADR; often in a matter of
months, even weeks, while bringing a lawsuit to trial can take a year or more.
Save Money: When cases are resolved earlier through ADR, the parties may save some of the
money they would have spent on attorney fees, court costs, and expert's fees.
Increase Control over the Process and the Outcome: In ADR, parties typically play a greater
role in shaping both the process and its outcome. In most ADR processes, parties have more
opportunity to tell their side of the story than they do at trial. Some ADR processes, such as
mediation, allow the parties to fashion creative resolutions that are not available in a trial. Other
ADR processes, such as arbitration, allow the parties to choose an expert in a particular field to
decide the dlspute.
Preserve Relationships: ADR can be a less adversarial and hostile way to resolve a dispute.
For example, an experienced mediator can help the parties effectively communicate their needs
and point of view to the other side. This can be an important advantage where the parties have a
relationship to preserve.
Increase Satisfaction: In a trial, there is typically a winner and a loser. The loser is not likely to
be happy, and even the winner may not be completely satisfied with the outcome. ADR can help
the parties find win-win solutions and achieve their real goals. This, along with aU of ADR's other
potential advantages, may increase the parties' overall satisfaction with both the dispute
resolution process and the outcome.
Improve Attorney-Client Relationships: Attorneys may also benefit from ADR by being seen as
problem-solvers rather than combatants. Quick, cost-effective, and satisfying resolutions are
likely to produce happier clients and thus generate repeat business from clients and referrals of
their friends and associates.
Because of these potential advantages, it is worth considering using ADR early in a lawsuit or even
before you file a lawsuit.
What Are the ADR Options?
The most commonly used ADR processes are mediation, arbitration, neutral evaluation, and settlement
conferences.
Mediation
In mediation, an impartial person called a "mediator" helps the parties try to reach a mutually acceptable
resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so
they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties.
The Monterey County Superior Court offers a Court-Directed Mediation Program.
Cases for Which Mediation May Be Appropriate: Mediation may be particularly useful when parties
have a relationship they want to preserve. So when family members, neighbors, or business partners
have a dispute, mediation may be the ADR process to use.
Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can
hear the parties out and help them communicate with each other in an effective and nondestructive
manner.
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Cases for Which Mediation May Not Be Appropriate: Mediation may not be effective If one of the
parties Is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties
has a significant advantage in power over the other. There-fore, it may not be a good choice if the parties
have a history of abuse or victimization.
Arbitration
In arbitration, a neutral person called an "arbitrator" hears arguments and evidence from each side and
then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence
are often relaxed.
Arbitration may be either "binding' or 'nonbinding." Binding arbitration means that the parties waive their
right to a trial and agree to accept the arbitrator's decision as final. Generally, there is no right to appeal
an arbitrator's decision in binding arbitration. Nonbinding arbitration means that the parties are free to
request a trial if they do not accept the arbitrator's decision. The Monterey County Superior Court offers a
nonbinding judicial arbitration program.
Cases for Which Arbitration May Be Appropriate: Arbitration is best for cases where the parties want
another person to decide the outoome of their dispute for them but would like to avoid the formality, time,
and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-
maker who has training or experience in the subject matter of the dispute.
Cases for Which Arbitration May Not Be Appropriate: If parties want to retain control over how their
dispute is resolved, arbitration, particularly binding arbitration, is not appropriate. In binding arbitration,
the parties generally cannot appeal the arbitrator's award, even if it is not supported by the evidence or
the law. Even in nonbinding arbitration. if a party requests a trial and does not receive a more favorable
result at trial than in arbitration, there may be penalties.
Neutral Evaluation
In neutral evaluation, each party gets a chance to present the case to a neutral person called an
evaluator: The evaluator then gives an opinion on the strengths and weaknesses of each party's
evidence and arguments and about how the dispute could be resolved. The evaluator is often an expert
in the subject matter of the dispute. Although the evaluator's opinion is nonbinding, the parties typically
use it as a basis for trying to negotiate a resolution of the dispute.
Cases for Which Neutral Evaluation May Be Appropriate: Neutral evaluation may be most appropriate
in cases in which there are technical issues that require expertise to resolve or the only significant issue
in the case is the amount of damages.
Cases for Which Neutral Evaluation May Not Be Appropriate: Neutral evaluation may not be
appropriate when there are significant personal or emotional barriers to resolving the dispute.
Settlement Conference
Settiement conferences may be either mandatory or voluntary. In both types of settlement conferences,
the parties and their attorneys meet with a judge or neutral person called a settlement officer" to discuss
possible settlement of their dispute. The judge or settiement officer does not make a decision in the case
but assists the parties in evaluating the strengths and weaknesses of the case and in negotiating a
settlement Settlement conferences are appropriate in any case where settfement is an option.
Mandatory settiernent conferences are often held close to the date a case is set for trial.
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ATTORNEY OR PARlY WITHOUT ATTORNEY (Name. State bar number, and address):
!
TELEPHONE NO.: FAX NO. (Optional)
I
EMAIL ADDRESS {Optional):
ATTORNEY FOR !Name):
SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY
MAILING ADDRESS: 1200 Road
CllY AND ZIP CODE: Monterey, CA 93940
PLAINTIFF/PETITIONER:
: DEFENDANT/RESPONDENT:

Request to Vacate or Continue Initial
Case Number:
Ca,!:;e Management Conference and Order
A CASE MANAGEMENT CONFERENCE is scheduled as follows:
Date: Timfl: Dept.: Div.: Room:
IF APPLICABLE, THIS REQUEST AND ORDER MUST BE FILED CONCURRENTLY WITH
THE CASE MANAGEMENT STATEMENTS, WHICH ARE DUE NO LATER THAN 30 DAYS
BEFORE THE INITIAL CASE MANAGEMENT CONFERENCE.
PER LOCAL RULE 6.08(g), IF THE PARTIES DO NOT RECEIVE A SIGNED COPY OF THE
ORDER GRANTING THE REQUEST, THEY MUST ATTEND THE CASE MANAGEMENT
CONFERENCE.
Counsel and the parties certify that the initial Case Management Conference should be vacated or
continued for the following reasons jcircle one]:
1. All parties have appeared and agree to engage in the below ADR program [check 11111 one]:
1:1 Court-Directed mediation
1:1 Nonbinding judicial arbitration
1:1 Other:
1:1 Private mediation
1:1 Private arbitration
PARTIES AGREE TO COMPLETE THE ALTERNATIVE DISPUTE RESOLUTION PROGRAM WITHIN 90
DAYS OF THE FlUNG OF THIS FORM. Further Case Management Conference is requested
2. case is concluded and judgment or dismissal has been entered as to all parties.
3. Case has settled; dismissal shall be filed on or before-----------
4. Case is at-issue and all parties agree that matter may be set lor trial without the necessity of a Case
Management Conference.
5. All defendants have not been served and the plaintiff has been granted an extension by the court until
to complete service on all defendants. Further Case
Management Conference is requested.
6. A defendant has filed bankruptcy; case should be stayed pending the completion of bankruptcy.
Plaintiff shall file a Supplemental Case Management Statement within ten (10) days of any action by
the debtor or the Bankruptcy Court that would act as a lifting of said stay.
7. case has been removed to Federal Court. Plaintiff shall file a Supplemental Case Management
Statement within ten (10) days of any remand back to Superior Court or of any judgment or dismissal
filed in the Federal Court.
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Request to Vacate or Continue Initial
Case Management Conference and Order
0
Case Number:
8. Plaintiff has obtained a default as to all defendants and will perfect the default by entry of court or
clerk judgment in timely manner. Further Case Management Conference is requested.
9. All defendants have appeared and discovery is proceeding in a timely manner. For reasons set forth
in the parties' Case Management Statements, the case should be designated (circle one) Category I,
Category II or Category Ill. Parties anticipate case will be ready to set for trial as of
------------- Further Case Management Conference is requested.
10. Other:
----------------- Further Case Management Conference is
requested.
Counsel for Plaintiff (print name) Counsel fur Defendant (print name)
Signature Signature
Coun""l fur Plaintiff (prtnl name) Counsel for Defendant (print name)
Signature Signature
For additional parlles, attach additional signature peges as needed.
Good Cause appearing, IT IS SO ORDERED that the Case Management Conference set for
_________ is vacated.
Cl Supplemental Case Management Statements shall be filed as set forth in 6 or 7 above.
Cl Receipt of Dismissal is set for------------
Cl Further Case Management Conference is set for
Parties shall file Case Management Statements prior to said hearing per local Rule 6.08(e).
PLAINTIFF MUST SERVE A COPY OF THIS ORDER ON ALL PARTIES.
Dated: ____________________ ___
Judge of the Superior Court
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Richard C. Bolanos, Bar No. 111343
rbolanos@lcw1egal.com
SuZIIIIJie Solomon, Bar No, 169005
ssolomon@llcwlegaLcom
GI'liCe Y. Ch1111, Bar No. 240899
gchan@lcwlegal.com
LIEBERT .CASSIDY WHITMORE
A Professional Law Corporation
153 Townsend Street, Suite 520
San Francisco, CA 94107
Telephone: (41 5) 512-3000
Faosunile: ( 413)856-0306
Attorneys for Defendllilt
CITY OF CARMEL-BY THE-SEA
0
FILED
JUL t 7 21109
CONNIE MAzzEI .
ClERK OF THE SUPERIOR OOUA'r
-------DEPlJ'IY
LEE BERRY
COUNTY OF MONTEREY
MONTEREY DIVISION
JANE KINGSLEY MlLLBR,
Plaintiff,
v.
ClTY OF CARMEL-BY-THE-SEA and
DOES 1 through 100, Inclusive,
Defendant,
Case No. M995 13
ANSWER TO COMPLAINT
[Exempt from filing fees pursuant to Cnl. Gov.
Code 6103)
Defendant CITY OF CARMEL-BY THE-SEA answers tbe unverified Complaint of
Plaintiff Jane Kingsley Miller (bere_inafter "Plaintiff") as follows:
1. Pursuant to Code of Civil Procedure section 43130, subdivision (d), DefcndiUlt
denies, generally and specifically, each and every allegation contained Jn Complaint.
Defendant also denies, generally nnd that Plaintiff is entitled to the relief requested,
or any reliefat nll, or that Plaintiff has been or will be damaged in nny Amount, or at nil, by reason
ct, omission, or breach on the part of Defendant, or on the part of any of Defendant's
agents, servants, employees, or any of them,
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AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
I. As a first affirmative defense, Defendant alleges that the unverified Complaint
fails to state facts sufficient to constitute any cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
2. As a second affirmative defense, Defendant alleges that the Complaint fails to state
any claim for violation of the Fair Employment and Housing Act.
THIRD AFFIRMATIVE DEt'Jt:NSE
3. As a third affirmative defense, Defendant alleges that the City has established and
enforced, at all relevant times, policies prohibiting harassment, retaliation and discrimination and
that the City exercised reasonable care at all times to prevent and/or promptly remedy any
harassment, discrimination, or retaliation, if in fact any such conduct ever occurred.
FOURTH AFFIRMATIVE DEFENSE
4. As a fourth affirmative defense, Defendant alleges that Plaintiff acted
unreasonably in failing to take advantage of any preventive or corrective opportunities Defendant
provided or otherwise take action to avoid or remedy alleged harm.
FIFTH AFFIRMATIVE DEFENSE
5. As a fifth affirmative defense, Defendant alleges Plaintiff is barred from seeking
any damages from purported physical or emotional injuries allegedly suffered as a result of her
employment in that the sole and exclusive remedy in this respect is governed by the Worker's
Compensation Act (Labor Code 3200 et seq.).
SIXTH AFFIRMATIVE DEFENSE
6. As a sixth affinnative defense, Defendant alleges that all of Plaintiffs causes of
action in her unverified Complaint are barred by Plaintiffs failure to comply fully and timely
with the statutory prerequisites necessary to maintain any or all of the causes of action brought
under the Fair Employment and Housing Act, California Government Code section 12900 et seq.
If
If
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ANSWER TO COMPLAINT
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SEVENTH AFFIRMATIVE DEFENSE
7. As a seventh affirmative defense, Defendant alleges that Plaintiff has failed to
exhaust her administrative remedies under any applicable local, state, or federal policies,
regulations, procedures, or laws.
EIGHTH AFFIRMATIVE DEFENSE
8. As an eighth affirmative defense, Defendant alleges that some or all of Plaintiffs
claims are barred by the privileges and immunities applicable to public employees and agencies,
including, but not limited to, California Government Code sections 815, 815.2, 815.6, 818.2, 820,
820.2, 820.4, 820.6, 820.8, 820.9, 821, 821.6, 822.2, and/or other statutory or common law
privileges or immunities.
NINTH AitJ:<'IRMA TIVE DEFENSE
9. As an ninth affirmative defense, Defendant alleges that even "but for" any alleged
retaliatory or discriminatory motives, the actions taken regarding Plaintiff's employment would
have been the same.
TENTH AFFIRMATIVE DEFENSE
10. As a tenth affirmative defense, Defendant alleges that Plaintiffs claims are
frivolous, unreasonable, and groundless, and accordingly, Defendant should recover all costs and
attorneys' fees incurred herein.
ELEVENTH AFFIRMATIVE DEFENSE
11. As an eleventh affirmative defense, Defendant alleges that Plaintiffs claims, and
each of them, are barred by the applicable statutes of limitations, including, but not limited to,
Government Code sections 12960 and 12965.
TWELFTH AFFIRMATIVE DEI<'ENSE
12. As a twelfth affirmative defense, Defendant alleges that at all times mentioned in
the unverified Complaint, Defendant acted in conformity with applicable constitutional law, state
and federal laws, ordinances, regulations, and policies.
II
II
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ANSWER TO COMPLAINT
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THIRTEENTH AFFIRMATIVE DEFENSE
13. As a thirteenth affirmative defense, Defendant alleges that Plaintiffs Complaint
and each cause of action are barred, or any recovery should be reduced, because of Plaintiffs
own neglect and fault in connection with the matters alleged.
F'OURTEENTH AFFIRMATIVE DEFENSE
14. As a fourteenth affirmative defense, Defendant alleges that Plaintiff had a duty to
mitigate her damages, but has failed to mitigate any damages to which she may be entitled.
FIFTEENTH AFFIRMATIVE DEFENSE
15. As a fifteenth affirmative defense, Defendant alleges that Plaintiffs causes of
action, and each of them, are barred on the ground that City Defendant had good faith, legitimate,
non-discriminatory business reasons, which were not a pretext for discrimination or retaliation for
each and every employment action regarding Plaintiff.
SIXTEENTH AFFIRMATIVE DEFENSE
16. As a sixteenth affirmative defense, Defendant alleges that Plaintiffs causes of
action, and each of them, are barred on the ground that City Defendant took immediate and
appropriate action to investigate Plaintiff's complaints and concerns.
SEVENTEENTH AFF'IRMATIVE DEFENSE
17. As a seventeenth affirmative defense, Defendant alleges that Plaintiffs alleged
injuries, losses, or damages were proximately caused by a superseding and intervening cause.
EIGHTEENTH AFFIRMATIVE DEFENSE
18. As an eighteenth affirmative defense, Defendant alleges that Plaintiff is barred by
estoppel from receiving some or all of the relief she seeks.
NINETEENTH AFFIRMATIVE DEFENSE
19. As a nineteenth affirmative defense, Defendant alleges that the Plaintiffs causes
of action, and each of them, are barred by laches.
TWENTIETH AFFIRMATIVE DEFENSE
20. As a twentieth affirmative defense, Defendant alleges that the Plaintiff's causes of
action, and each of them, are barred by the doctrines of unclean hands, or waiver.
-4-
ANSWER TO COMPLAINT
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TWENTY -FIRST AFFIRMATIVE DEFENSE
21. As a twenty-first separate and affirmative defense, Defendant alleges that to the
extent during the course of this litigation City acquires any evidence of wrongdoing by Plaintiff
and the wrongdoing would have materially affected the terms and conditions of Plaintiffs
employment or would have resulted in Plaintiff either being demoted, disciplined, or terminated,
such after-acquired evidence shall bar Plaintiffs claim on liability or damages or shall reduce
such claim or damages as provided by law.
WHEREFORE, the Defendant prays for relief as follows:
I. That the Court deny Plaintiffs requests for damages;
2. That the Court deny Plaintiffs request for attorneys' fees;
3. That the Court deny Plaintiffs request for prejudgment interest;
4. That the Court deny Plaintiffs request for costs of suit;
5. That Plaintiff take nothing from this action:
6. That the Court grant the Defendant their attorneys' fees and costs of suit; and that
the Court grant the Defendant such other and further relief as the Court deems proper.
Dated: July 17, 2009 LIEBERT CASSIDY WHITMORE

uz e Solomon
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
97619.3 CA2(](M)I4
- 5-
ANSWER TO COMPLAINT
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PROOF OF SERVICE
I, Vanessa Buffington, declare:
I am employed in County of San Francisco, State of California. I am over the age of
eighteen years and not a party to the within action. My business address is 153 Townsend Street,
Suite 520, San Francisco, California 94107.
On July 17, 2009, I served the within:
ANSWER TO COMPLAINT
on the following interested party(s) in this action:
D
Michael W. Stamp
Law Offices of Michael W. Stamp
479 Pacific Street, SUite One
Monterey, CA 93940
VIA MAIL- CCP 1013(a):
By placing a true copy thereof in a sealed envelope{s), addressed as above, with postage thereon
fully prepaid, and placing it for collection and mailing on date set forth below, following ordinary
business practices. I am readily familiar with my ftrrn's business practice of collection and
processing of correspondence for mailing with the United States Postal Service; correspondence
placed for collection and mailing is deposited with the 1Jnited States Postal Service at San
francisco, California, that same day in the ordinary course of business.
VIA ELECTRONIC EMAIL- CCP 1010.6(b)(6)
Based on an agreement of the parties to accept service by email or electronic transmission, I caused
the documents to be sent to the persons at the email addresses listed above. I did not receive, within
a reasonable time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.
I declare under penalty of peijury that the foregoing is true and correct and of my personal
knowledge,
Executed at San Francisco, California on July 17, 2009.
Vanessa Buffington
99081.1 CA200-014
- 6-
ANSWER TO COMPLAINT
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Richard C. Bohmos, Bar No. 111343
rbolanos@lcwlegal.com
Suzlllllle Solomon, Bill' No. 169005
ssolomon@lcw1egal.com
LIEBERT CASSIDY WHITMORE
I 53 Townsend Street, Suite 520
San Praocisco, CA 94107
Telephone:
Facsimile:
(415) 512-3000
(415) 856-0306
0
FILED
SEP 81 2009
COURT

S.HANS
COUNTY OF MONTEREY
MONTEREY DIVISION
JANE KINGSLEY MILLER,
Plaintiff,
v:
CITY OF CARMEL-BY-THE-SBA and
DOES 1 thmugh 100, Inclusive,
Defendant.
Case No. M99513
N011CE OF MOTION BY CITY OF
CA.RMEL-BY-THE-SEA TO DISQUALIFY
PLAINTIFF'S COUNSEL
Date:
Time:
Dept:
October 2, 2009
9:00a.m.
14
jExempt from fillllg feea punuant to Cal.
Gov. Code 6103)
TO PLAINTIFF AND HER ATIORNEYS OF RECORD:
PLEASE T AKB NOTICE that on October 2, 2009, at 9:00a.m., or as soon thereafter as
COUl18e! may be heard in Depl!l'tment 14 of the above-entitled Court located at 1200 Aguajito
Road, Monterrey, California, CITY OF CARMEL-BY-THE-SEA ("CITY") will move this Court
for an order to Disqualizy Plaintiff's attorney Michael Stamp and tbe Law Offices of Michael W.
Stamp.
NOTlCB OF MOTION TO DISQUALIFY PLAlNTIFF'S COUNSEL
0042
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This motion is based upon this notice, the attached Memorandum of Points and
Authorities, the Declarations of Heidi Burch and Suzanne Solomon, and the pleadings and papers
filed herein, and upon any other oral or documentary evidence that may be timely presented at
the hearing of this motion.
Dated: September I, 2009
LIEBERT CASSIDY ITMORE
104411.1 CA200-014
-2-
NOTICE OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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PROOF OF SERVICE
I, the undersigned, deelare:
On the date set forth below, I served the within:
NOTICE OF MOTION BY CITY OF CARMEL-BY-THE-SEA TO DISQUALIFY
PLAINTIFF'S COUNSEL
D
Michael W. Stamp
Monterey, CA 93940
By placing a true copy thereof in a sealed envelope(s), addressed as above, with postage thereon
business practices. I am readily familiar with my firm's business practice of collection and
placed for collection and mailing is deposited with the United Slates Postal Service at San
Francisco, California, that same day in the ordinary course of business.
tTansmission was unsuccessful.
I declare under penalty of peljury that the foregoing is true and correct and of my personal
knowledge.
Exeeuted at San Francisco, California on September 1, 2009.

[AndreaS. Bolnick]
99081.1 CA200014
- I -
NOTICE OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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SIIUillle Solomon. Bar No. 16900S
ssolomon@lcwlegal.com
GraceY. Chan, BarNo. 240899
gohan@lcwlegai.COill
A P!Qfessional Law Corporation
Telephone:
Facsunile:
(41S) 512-3000
(415) 856-0306
Attorneys fur Defendant
CITY OF CARMElrBY-THE-SEA
0
FILED
SEP 01 2009
CONNIE MAZZEI
CLERK OF 1HE SUPERIOR COURT
OEPliTV

SUPERIOR COURT OF TIIE STATE OF CALIFORNIA
COUNIY OF MONTEREY
MONTEREY DNISION
Plaintiff,
v.
CITY OF CARMEL-BY -THE-SEA and
DOES 1 through !OO,lnc:lusive,
Defendant.
Case No. M99513
MOTION BY DEFENDANT CITY OF
CAKMEE-BYTHE-SEA TO DISQUALIFY
PLAINTIFF'S COUNSEL
Date:
Time:
Dept:
October 2, 2009
9:00a.m.
14
(Exempt from ruing fees pursuant to Cal.
Gov. Code 61031
MOTION TO DISQUALIFY PLAINT1FF'S COUNSEL
0045
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Richard C. Bo Janos, Bar No. 11134 3
Suzanne Solomon, Bar No. 169005
GraceY. Chan, Bar No. 240899
gchan@lcwlegal.com
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
0
COUNTY OF MONTEREY
MONTEREY DIVISION
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA and
DOES I through I 00, inclusive,
Defendant.
Case No. M99513
CARMEL-BY-THE-SEA TO DISQUALIFY
PLAINTIFF'S COUNSEL
Date:
Time:
Dept:
October 2, 2009
9:00a.m.
14
[Exempt from filing fees pursuant to Cal.
Gov. Code 61031
MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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TABLE OF CONTENTS
Page
L INTRODUCTION .............................................................................................................. 2
II. SUMMARY OF FACTS .................................................................................................... 2
III. ARGUMENT ...................................................................................................................... 4
A. An Attorney Cannot Represent Interests Adverse to a Fonner Client
Without the Fonner Client's Informed Written Consent ........................................ 4
I. Neither Michael Stamp nor the Law Offices of Michael W. Stamp
Sought or Obtained the City's Informed Written Consent to their
Representation of Plaintiff in this Action .................................................... 5
B. Michael Stamp and the Law Offices of Michael W. Stamp Should Be
Disqualified From Representing Plaintiff in this Action ........................................ 5
1. Where an Attorney Represents a Party Suing a Fonner Client and
There is a Substantial Relationship Between the Matters, the
Disclosure of Confidential Information is Presumed and
Disqualification Is Required ....................................................................... 5
2. Mr. Stamp and His Finn Handled Personnel Matters for the City
Involving Subjects That Are At Issue in This Lawsuit.. ............................. 6
3. This Court Must Presume That Mr. Stamp Obtained the City's
Confidential Information That is Material to This Action Because a
Substantial Relationship Exists Between This Action and the Prior
Personnel Matters That Mr. Stamp Handled for the City ........................... 8
4. Neither Michael Stamp nor the Law Offices of Michael W. Stamp
Sought or Obtained the City's Informed Written Consent to their
Representation of Plaintiff in this Action .................................................... 9
5. The Law Offices of Michael W. Stamp Must Be Vicariously
Disqualified As WelL ................................................................................. 9
IV. CONCLUSION ................................................................................................................... 9
104299.2 CA200.014
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TABLE OF AUTHORITIES
2
3
Cases
4
5
City and County of San Francisco v. Cobra Solutions, Inc.
(2006) 38 Ca1.4th 839 .................................................................................................................. 9
6
Flatt v. Superior Court
(1994) 9 Cal. 4th 275 ................................................................................................................... 5
7
H.F. Ahmanson & Co. v. Salomon Brothers, Inc.
8
(1991) 229 Cal.App.3d !445 ........................................................................................................ 5
9
Jessen v. Hartford Casualty Insurance Company
(2003) Ill Cal.App.4th 698 .................................................................................................... 5, 8
10
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Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft
(1999) 69 Cal.App.4th 223 .......................................................................................................... 6
Rosenfeld Construction Co. v. Superior Court
(1991) 235 Cal.App.3d 566 .......................................................................................................... 9
SpeeDee Oil Change Systems, Inc.
(1999) 20 Ca1.4th 1135 ................................................................................................................ 9
Styles v. Mumbert
(2008) 164 Cal.App.4th 1163 ...................................................................................................... 4
16
17
Woods v. Superior Court
(1983) 149 Cal.App.3d 931,936-937 .......................................................................................... 6
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19
California Rule of Professional Conduct 3-310(A-E) .............................................................. 2, 4, 9
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I. INTRODUCTION
Defendant City of Carmel-by-the-Sea requests that the Court disqualify the Law Offices
of Michael W. Stamp and Michael W. Stamp from representing Plaintiff in this action due to Mr.
Stamp's ethical conflict of interest. Mr. Stamp's representation of Plaintiff in this action violates
California Rule of Professional Conduct 3-310(E), because Mr. Stamp previously represented the
City in various personnel matters from 1985 to 2002. In those matters, Mr. Stamp obtained
confidential information that is material to the instant action. Among other things, he advised the
City on the very sexual harassment policy upon which this lawsuit is based.
Mr. Stamp never provided written disclosure notifying the City that he planned to take on
a new representation adverse to the City, nor did he obtain the City's written consent to represent
Plaintiff in this action, as required under Rule of Professional Conduct 3-310(A).
Disqualification is required in order to prevent the improper use against the City of the City's
confidential information provided to Mr. Stamp.
II. SUMMARY OF FACTS
Beginning as early as 1985, Michael W. Stamp of the Law Offices of Michael W. Stamp
has provided legal advice to the City of Carmel-by-the-Sea on numerous personnel matters
involving the very types of issues that are issue in this lawsuit. Declaration of Heidi Burch, 'l!'ll4-
11.
In 1991, Mr. Stamp provided legal advice to the City about the City's policy against
sexual harassment, including making revisions to the policy and providing advice about whether,
when and how to investigate complaints of sexual harassment. Burch Decl., 'l!9.
In 1987, Mr. Stamp advised the City about how to regulate personal relationships within
the workplace, including advice involving policies on that topic, and advice about the making of
employment decisions regarding employees who have personal relationships with other City
employees. Burch Decl., 'l!7. In 1985, Mr. Stamp advised the City about selection and
appointment of employees, and determining compensation. Burch Decl., 'l!4. In 1986, Mr.
Stamp advised the City about what tasks should be included in job descriptions. Burch Dec!., 'lfS.
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In 2001 and 2002, Michael W. Stamp represented the City in a matter involving an
employee accused of, among other things, inappropriate treatment of female employees. In that
matter, Mr. Stamp provided advice regarding the timing, method and scope of the investigation of
the allegations against the employee, and various options to resolve the matter. Burch Dec!., 'I!
II.
In 1986, Mr. Stamp provided legal advice to the City involving the parameters of at-will
employment as it related to City employees. Burch Dec!., '1!6. In 1991, he advised the city on
drafting employment agreements between the City and certain employees. Burch Dec!., 'I! 8.
This lawsuit was filed and served on the City on June 17, 2009. Prior to representing
Plaintiff in this matter, Mr. Stamp never provided the City with the required written disclosure of
his intention to take that employment and the reasonably foreseeable consequences that it would
have for the City, given that he had received the City's confidential information material to this
matter. Burch Dec!., '1!12. Nor did Mr. Stamp ever seek or obtain written consent from the City
to his representation of Plaintiff in this action. Jd.
Plaintiff Jane Miller is the Human Resources Director for the City of Carmel-by-the-Sea.
In 2008, Plaintiff went out on sick leave and sent the City a letter accusing the City Administrator
of sexual harassment, disparate treatment gender discrimination, age discrimination and
retaliation. Prior to the complaint letter, Plaintiff had never reported any of the alleged conduct
upon which this lawsuit is based.
Upon learning of Plaintiffs allegations, the City hired an outside investigator to
investigate all of Plaintiffs claims. Plaintiff refused to be interviewed as part of that
investigation, despite repeated urgings from the City and the investigator. Nor did Plaintiff ever
tell the City why she refused to be interviewed. The outside investigator interviewed 12 current
and former City employees, including the witnesses Plaintiff had identified in her complaints.
The investigator found that Plaintiffs allegations were unsubstantiated, and Plaintiff was
informed of the results of the investigation. Plaintiff then filed this lawsuit.
.. 3 ..
MOTION TO DISQUALIFY PLAINfiFF'S COUNSEL
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III. ARGUMENT
A. An Attorney Cannot Represent Interests Adverse to a Former Client Without the
Former Client's Informed Written Consent
A lawyer may not accept employment adverse to a former client if he has obtained
confidential information from the former client that is material to the employment. California
Rule of Professional Conduct 3-310(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"). The only exception to this rnle is if the
lawyer provides written disclosure to the former client about the matter, and the former client
consents in writing. !d. In order to obtain the former client's consent, the lawyer must provide a
written disclosure to the former client of the "actual and reasonably foreseeable adverse
consequences" that the new employment will have on the former client. California Rule of
Professional Conduct 3-31 O(A)(I ). The rule defines "informed written consent" as the former
client's written consent to the new employment following written disclosure. California Rule of
Professional Conduct 3-310(A)(2).
In ruling on cases of potential conflict arising from successive representation of clients
with potentially adverse interests, courts have recognized that the chief fiduciary value
jeopardized is that of client confidentiality. A;; one court recently explained:
Few precepts are more firmly entrenched than the fiduciary nature
of the attorney-client relationship, which must be of the highest
character. So fundamental is this precept that an attorney continues
to owe a former client a fiduciary duty even after the termination of
the relationship. For example, an attorney is forever forbidden
from using, against the former client, any information acquired
during such relationship, or from acting in any way which will
injure the former client in matters involving such former
representation. These duties continue after the termination of the
relationship in order to protect the sanctity of the confidential
relationship between an attorney and client
Styles v, Mumbert (2008) 164 Cai.App.4th 1163, 1167 (citations omitted).
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I. Neither Michael Stamp nor the Law Offices of Michael W. Stamp Sought or
Obtained the City's Informed Written Consent to their Representation of
Plaintiff in this Action
Even though the Rules of Professional Conduct require an attorney to notify a former
client of the attorney's intention to take subsequent employment adverse to the former client's
interests, Mr. Stamp failed to do so. Burch Dec!., 1112. Nor did Mr. Stamp ever seek or obtain
written consent from the City to his representation of Plaintiff in this action. ld. Accordingly,
neither Mr. Stamp nor the Law Office of Michael Stamp may represent Plaintiff in this action.
B. Michael Stamp and the Law Offices of Michael W. Stamp Should Be Disqualified
From Representing Plaintiff in this Action
I. Where an Attorney Represents a Party Suing a Former Client and There is a
Substantial Relationship Between the Matters, the Disclosure of Confidential
Information is Presumed and Disqualification Is Required
Where, as here, an attorney engages in successive representation of clients with adverse
interests, the governing test for disqualification requires the former client to demonstrate a
substantial relationship between the subjects of the antecedent and current representation. Flatt v.
Superior Court (1994) 9 CaL 4th 275, 283; H.F. Ahmanson & Co. v. Salomon Brothers, Inc.
(1991) 229 Cai.App.3d 1445. If the former client demonstrates that a "substantial relationship"
exists between the subjects of the prior and current representations, the court presumes that the
attorney received confidential information from the former client during the prior representation
that is material to the attorney's current representation of the subsequent client. Flatt, supra, 9
Cal .4th at 283.
To determine whether there is a substantial relationship between successive
representations, the court must first determine whether the attorney had a direct professional
relationship with the former client in which the attorney personally provided legal advice and
services on a legal issue that is related to the legal issue in the present representation. Jessen v.
Hartford Casualty Insurance Company (2003) Ill Cal.App.4th 698, 710-71 L If such a direct
relationship with the former client existed, the former client need not prove that the attorney
possess actual confidential information. !d. Instead, the attorney is presumed to possess
confidential information if the subject of the prior representation put the attorney in a position in
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which confidences material to the current representation would normally have been imparted to
counsel. !d.
Applying the substantial relationship test, courts routinely disqualify attorneys who
attempt to represent new clients against former clients where the two matters bear any
relationship to each other. For example, in Woods v. Superior Court (1983) 149 Cai.App.3d 931,
936-937, an attorney had previously represented the interests of both spouses regarding a family
business they jointly owned. For that reason, the attorney was disqualified from representing the
husband in divorce proceedings because division of the business was at issue in the divorce. !d.
The wife was not required to show that the attorney had obtained any confidential information
regarding the family business during the original representation. !d. In Morrison Knudsen Corp.
v. Hancock, Rothert & Bunshoft (1999) 69 Cal.App.4th 223, 235-236, the court found that an
attorney's representation of a former client in a negligence action involving use of acidic soil was
substantially related to a subsequent matter involving a claim for negligent engineering services.
The court explained that precise identity between the prior representation and the current action is
not required: "[T]he facts of cases are never entirely alike, and no cases would ever be
'substantially related' if they could be distinguished on such narrow grounds." !d. at 235.
2. Mr. Stamp and His Firm Handled Personnel Matters for the City Involving
Subjects That Are At Issue in This Lawsuit
Since 1985, Michael W. Stamp and the Law Offices of Michael W. Stamp have provided
legal advice to the City of Carmel-by-the-Sea on numerous personnel matters involving the very
types of issues that are at issue in this lawsuit. For example, Plaintiff claims in this action that the
City Administrator sexually harassed her and that the City failed to investigate after she
complained. Complaint,,, 37, 65,93-101, and 102-110. In 1991, Mr. Stamp provided legal
advice to the City about the City's policy against sexual harassment; Mr. Stamp made revisions to
the policy and provided advice about whether, when and how to investigate complaints of sexual
harassment. Declaration of Heidi Burch,, 9. In 2001 and 2002, Michael W. Stamp of the Law
Office of Michael W. Stamp represented the City in a matter involving an employee accused of,
among other things, inappropriate treatment of female employees, including providing advice
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regarding the timing, method and scope of the investigation ofthe allegations against the
employee, and various options to resolve the matter. Burch Decl., 1 II.
As another example, Plaintiff claims in this action that the City Administrator had a
romantic relationship with two City employees, and that based on that alleged relationship, he
awarded those employees raises and promotions to which they were not entitled. Complaint, 11
I 0, II, 16, 42, 44, 48, and 49. Plaintiff alleges that the salaries the two employees were awarded
were not appropriate for their job descriptions. ld. In 1987, Mr. Stamp advised the City about
how to regulate personal relationships within the workplace, including advice involving policies
on that topic, and advice about the making of employment decisions regarding employees who
have personal relationships with other City employees. Burch Dec I., 1 7. In 1985, Mr. Stamp
advised the City about the selection and appointment of employees, and how to determine
employee compensation. Burch Decl., 1 4. In 1986, Mr. Stamp advised the City about what tasks
should be included in job descriptions. BurehDecl., 15.
In this action, Plaintiff claims that she was not awarded proper medical leave. Complaint,
'IJ 50. Previously, Mr. Stamp has provided legal advice to the City on a number of personnel
matters involving medical leaves. Burch Decl., '11'11 4, 10-11.
Plaintiff has propounded discovery on the City in this action on the issue of whether the
City considers Plaintiff to be an at-will employee. Declaration of Suzanne Solomon; Exhibit 1 to
Solomon Dec!. In 1986, Mr. Stamp provided legal advice to the City involving the parameters of
at-will employment as it related to City employees. Burch Dec!., ,J6. Later, in 1991, he advised
the city on drafting employment agreements between the City and certain employees. Bureh
Dec!., 18.
Mr. Stamp has represented the City in numerous personnel matters involving the types of
issues that are identical to those that will be litigated here: sexual harassment, workplace
investigations, employee selection and appointment, regulation of personal relationships in the
workplace, employee agreements, and medical leave. Not only did Mr. Stamp provide advice to
the City regarding its personnel policies, he also represented the City in various personnel matters
in which those policies were implicated. Mr. Stamp himself directly provided advice to the City
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on the City's sexual harassment policy (Burch Dec!., ,I 9), the City's policy regarding
investigations of sexual harassment complaints (Burch Dec!., 'IJ9), how the City should regulate
personal relationships in the workplace, including how such relationships could affect personnel
decisions (Burch Dec!., 'IJ7), the City's personnel ordinance governing selection and appointment
of employees and determining their compensation (Burch Dec!., 'II 4), and creating employment
agreements and the parameters of at-will employment appointment (Burch Dec!., 'IJ'IJ6, 8). Mr.
Stamp represented the City in several ongoing personnel matters involving allegations of
inappropriate gender-based conduct (Burch Dec!., 'II II), workplace investigations (Burch Dec!.,
'11'11 9, II), and medical leave (Burch Dec!., '11'111 0, 11 ). All of these issues are the same types of
issues that are at the heart of Plaintiffs claims in this action.
3. This Court Must Presume That Mr. Stamp Obtained the City's Confidential
Information That is Material to This Action Because a Substantial
Relationship Exists Between This Action and the Prior Personnel Matters
That Mr. Stamp Handled for the City
A substantial relationship exists between Mr. Stamp's (and his firm's) prior representation
of the City in personnel matters and this action, because the issues involved in the prior
representations and the current matter are similar. Since Mr. Stamp directly represented the City
in the previous personnel matters, and since the matters are similar, this court must presume that
he obtained confidential information (during the prior representations) that is material to the
instant action. This is precisely the circumstance the rules regarding professional conduct are
intended to address in order to protect the sanctity of the confidential relationship between
attorney and client.
The City need not prove that Mr. Stamp actually obtained such information, nor may Mr.
Stamp be allowed to assert that he did not. Jessen v. Hartford Casualty Insurance Company
(2003) Ill Cal.App.4th 698, 710-711. The Jessen court explained that this standard, "with its
conclusive presumption of knowledge of confidential information, is justified as a rule of
necessity" because:
It is not within the power of the former client to prove what is in the
mind of the attorney. Nor should the attorney have to engage in a
subtle evaluation of the extent to which he acquired relevant
information in the first representation and of the actual use of that
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knowledge and infonnation in the subsequent representations. The
conclusive presumption also avoids the ironic result of disclosing
the fonner client's confidences and secrets through an inquiry into
the actual state of the lawyer's knowledge and it makes clear the
legal profession's intent to preserve the public's trust over its own
self-interest.
Ill Cal.App.4th at 706 (internal quotations and citations omitted).
4. Neither Michael Stamp nor the Law Offices of Michael W. Stamp Sought or
Obtained the City's Informed Written Consent to their Representation of
Plaintiff in this Action
Even though the Rules of Professional Conduct require an attorney to notify a fonner
client of the attorney's intention to take subsequent employment adverse to the fonner client's
interests, Mr. Stamp failed to do so. California Rule of Professional Conduct 3-31 O(A)(l ); Burch
Dec!., 1 12. Nor did Mr. Stamp ever seek or obtain written consent from the City to his
representation of Plaintiff in this action. ld. Accordingly, neither Mr. Stamp nor the Law Office
of Michael Stamp may represent Plaintiff in this action.
5. The Law Offices of Michael W. Stamp Must Be Vicariously Disqualified As
Well
The substantial relationship test applies not just to individual attorneys but to entire finns.
Where one attorney in a finn has a conflict, that conflict is imputed to the law finn as a whole, on
the rationale that "attorneys, working together and practicing law in a professional association,
share each other's and their clients' confidential infonnation." SpeeDee Oil Change Systems, Inc.
(1999) 20 Cal.4th 1135, 1153-54. This principle applies in cases where the current finn
represents a client with interests adverse to the fonner client of one ofthe finn's attorneys. E.g .
Rosenfeld Construction Co. v. Superior Court (1991) 235 Cal.App.3d 566; City and County of
San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal. 4th 839.
Here, Mr. Stamp's finn, the Law Office of Michael Stamp, should be disqualified as well
as Mr. Stamp, because Mr. Stamp directly provided legal services to the City on personnel
matters. Moreover, during much of the time that Mr. Stamp provided those services, he worked
for the Law Offices of Michael W. Stamp. Burch Decl., 114-6, II.
IV. CONCLUSION
Michael Stamp and the Law Offices of Michael W. Stamp accepted employment adverse
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to their former client, the City of Cannel-by-the-Sea, without providing any disclosure to the City
of the consequences of that representation, and without seeking or obtaining the City's informed
written consent. Mr .. Stamp violated this Rule of Professional Conduct and he and his law office
should be disqualified in order to prevent the improper use against the City of the City's
confidential information provided to Mr. Stamp during his prior representation of the City.
Dated: September I, 2009
__
uzanne Solomon
- 10-
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PROOF OF SERVICE
I, the undersigned, declare:
eighteen years and not a party to the within action. My business address is !53 Townsend Street,
MOTION BY CITY OF CARMEL-BY-THE-SEA TO DISQUALIFY PLAINTIFF'S
COUNSEL
D
Michael W. Stamp
Monterey, CA 93940
VIA MAIL CCP 1013(a):
business practices. I am readily familiar with my firm's business practice of eolleetion and
processing of correspondence for mailing with the United States Postal Service; eorrespondence
placed for collection and mailing is deposited with the United States Postal Service at San
knowledge.
Executed at San Francisco, California on September 1, 2009.
[AndreaS. Bolnick]
9908LI CAl00-<!14
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rilolanos@lcwlcgal.com
A Professional Law Cmporation
San Francisen, CA 94107
Telephone: (415)512-3000
Facsimile: (415) 856-0306
Attoroeys for De!lm.dant
0
FILED
SEP 0 I 2009
CONNIE MAZZEI ,
"'CLERK OF THE SUPERIOR COURT
S. HANS DEPUTY
SUPERIOR COURT OF TilE STATE OF CALIFORNIA
COUNTY OF MONTEREY
MONTEREY DMSION
Plaintiff, .
. CaseNo. M99513
DECLARATION OF SUZANNE
v.
CITY OF CARMBL-BYTHE-SEA and
DOES 1 through 100, inclusive,
Defendant.
THE-sEA TO DISQUALIFY PLAJNTD.ti''S
COUNSEL
Date: October 2, 2009
Time: 9:00a.m.
Dept: 14
[Exempt from filing fees pUTlillant to Cal. Oov.
Code 6103]
I, Suzanne Solomon, hereby declare as follows:
1. I llllllicensed to practice law before this Court and I am coWISe! for Defendant
City of Cannel-by-the-Sea. ("City") in this action. I have personal knowledge of the facts set
forth in this and if csUed as a witoesa I would and could competently testilY thereto.
2. Attached hereto is a true and correct copy oflhe fu-st set of Employment Law
II
SOLOMON DBCL. SUPPORTING MOTION TO DISQUALIFY PLAlNTIFF'S COt!NSEL
0059
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Form Interrogatories that Plaintiff propounded upon the City in this action.
I declare under penalty of petjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on September I, 2009 at San
Francisco, California.
104412.1 CA100.014
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SOLOMON DECL SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0060
0 0
EXHIBIT A
0061
14:24 PAGE 13/26
DISC-002
ATTORNeY OR FAA'N wrrHOUT' ATTORNeY (NwM. &mm &lit flur7!bor. Dtld tJI!fdl'e#)!
Michael W. Stamp 72785
- 479 Pacific Street, Suite One
Monterey CA 93940
'!'EL!P'HONE' t-.0,-. (831) 373-1214
FAX NO. (Q!tll:)net}: (B31) 373-0242
! EMAIL AOORESS tCIPikvW):
ATTORNEY Jane Kingsley Miller
SUPERIOR COURT OF CAUFORNIA, COUNTY OF Monterey
I
i SHORT TITLE:
Miller v. City of Carmel-by-the-Sea
FORM INTERROGATORIES- EMPLOYMENT LAW
I CA$- NUMBER:
Asking Pariy: Jane Kingsley Miller
AnswertngPorty: City of Carmel-by-the-Sea
Set No.: One
Sac.. 1. lnatrudlona to All PartieS
(a) Interrogatories are wri!IM questions prepared by a party to an
actiOn thai are sent to any other party in the action to be
answered under oath. The lntem:>gatories below are form
interrogatories approved for use In employment cases.
(b) For time imitations, requirements lor service on other parties,
and other details. s\Wl Code of Civil Proeedure sections
2030.010-2030.410 aod the cases construing 111oe Sac:tiOns.
(c) These form interfogatories do not change exiotlng relating
to interrogatories nor do they affect an answering party's right
to aGsert any privilege or make any objection.
SK. 2. lnstnucliorm to th .. Asking Party
(a) These !onn interrogatories al'll designed lor optional "" by
parties in employment cases. (Saparate aets of
Interrogatories. Form (11:1rm
OtSC-001) and Form lnterrogaiDries-Limit!od Civil Cases
(Economic Litigation) (fum'o OISC-004) may also
be used where applicable In employment cases.)
(b). Insert the names of the EMPLOYEE Md EMPLOYER to
whom these in!eiTO!Jatories apply In fhe definitions In sections
4(d) and {t) below.
(<:) Cheek lhe box next to each interrogatory Ills! you went the
answering party to a,_, Use care in choosing tllos<l
int81'ro9atories that are appficable to the case.
(0) Thalnt81'ro9atories in sedion 211.0,lass of
Income Interrogatories to Employer, should not be used
until the employer hes h8d a reasonable opportunHy to
conduct an investigation or discovery of the employee's
injuries and dameges.
(e) Additional interrogatories may be aHached.
Sec. 3. lnsti'\IC!lons to the Answering Party
(a) You must answer or provide anolher appropnats response to
eacllnterrogatory that has been checked below.
(b) As a general rule, within 30 days after you are served with
these interrogatorie&. you must serve your n!Sponsu on the
asking party and serve copies of your responses on all oltler
pal'ties to the action who have appeared. See Code of CIVIl
Procedure sections 2030.260-2030.270 for deta11s.
M995l3
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(c) Each answer must be as complete and stralgh11orward
as the inl'ormation reasonably available to you pennlls. If
an inlen'Ogatoty cannot be answered completely,
answer it to the exl<!nl possible.
(d) If you do not haw enough personal knowledge to fully
onswer an intem:>gatory, say so, but maka a reasonable
and good faith effort to get the information by aGklng
oth-.r persons or organizations, unleM the information is
equally available to the asking party.
(e) WhenEWer an Interrogatory may be answered by
referring to a document, the document may be attached
as an exhibit to the respon$e and tel'enred to in fhe
response. If the document has rnOI'll than one page.
refer to !he page and section whllll'e the all$Wer to fhe
interrogatory can be found_
(f) Whefl\!V\lr an address and leleph""" number 11:1r the
same person a110 110questad In more !hen one
intem:>gatory, you are required to l'urni!lh them in
answering only the first Interrogatory asking for thai
information.
(g) If you arn asserting a privilege or making an objection to
an Interrogatory, you must speafically assert the
plivilege or state the Qbj\ldlon in your Wlitlen
(h) Your answers w these interrogatories must be verified.
dated. and signed. You may wish to use the following
form at the end of your aii$W\lrs:
I under penalty of perjury under th& laws of th&
Stat& of CallfOmia thl!llhe foregoing 11nswers are true
and rorrect.
(SiGNATURi!)
sec. 4. OellnltiOns
Won:!s in BOLDFACE CAPITALS In these interrogator1es
are deflned as follows:
(a) PERSON includes a natural person, firm, association.
organi:w!Jon. partnership, business. trust. timil<ld liability
company. corporation, or public entity.
. ...
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(b) YOU OR ANYONE ACTING ON YOUR BEHALF iodudes
you, your agenrs, your employees, your insurance
companl.,.., their agenlls, their employees, your attorneys,
your accOI/ntan!:s, your Investigators, and anyone else scflng
on your behaH.
(c) EMPLOYMENT means a relationship in which an
EMPLOYEE provides services requested by or on beheW of
an EMPLOYER, other than an independent contractor
relationship.
(d) EMPLOYEE means a Pl!R$01'1 who provides serviCes in an
EMPLOYMEHT relationship and whc is a ll'lrtv to this lawsuit.
For purposes of these interrogatories, EMPLOYEE to
(ifl$fllf
Jane Miller
(If no name is insetted, EMPLOYEE means 11P such
PERSONS.)
(e) EMPLOYER means a PI!RSON who employs an
EMPLOYEE w provide services in an EMPLOYMENT
relationship and who is a party lo this lawsuit. For purposes of
these interrogatnrih, EMPLOYER refers to (msett name):
City of Carmel-by-the-Sea
(If no name is inBfJ!led, EMPLOYER melltls all such
PERSONS.)
(0 ADVERSE EMPLOYMENT ACTION means any
TERMINAnoN. suspension, demotion. reprimand, loss of
pay, failure or rerusal to hire, failure or refusal to or
other ac:IJon or faUure to act that adversely streets the
I:MPLOYEE'S rtghls or interests and which is alleged in the
PLEADINGS.
(g) TERMINA noN means !he actual or constructive termination
of employment and includes a !hCherge, nnng, layotr,
reeignation. or completion of the term of the employment
agreement
(h) PUBUSH means to communicate orally or in writing to
anyone other than the plainfiff. This indudes communieatiorl$
by one of the defendanrs employee& to others. (Kelly v.
Gener;J/ T!ilephone Co. (1982) 136 C81.App.3d 278, 284.)
0) PLEADINGS rneano the original or mco;t amended
version of any (:()11'lplalnt, answ11r, or
to cross-complaint.
OJ BENEFIT means any bl!ll8fit from an EMPLOYER, including
an 'employee welfsre benefit plan' or employee pension
benefit plan' within !he meening ofTiUe 29 United States
Code section 1002(1) or (2) or ERISA.
(kl HEALTH CARl! PROVIDER indUdes any PERSON referred
to in Civil Procedure section 66H(e)(3).
(0 DOCUMENT means a writing, as defined in Evidence Code
section 250. and includes the original or a copy of
handWriting, typewriting, printing, photostats, photographs,
electronically Slot'ed information, and every other means ot
mccrolng upon any tangible thing and form of communiCating
or representation, induding words. pictures. soundS,
or symbols, or combinations of them.
(m) ADDRESS means the st,....taddrB$&, including the City, state,
and z.fp code.
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Sec. 5. Interrogatories
The following intsm>gatorie.s for employment law cases have
been approve<! by the Judicial Counc:IJ under Code of Civil
Proeedure section 2033.710:
CONTENTS
200.0 Contr:act Formation
201.0 Adver11<1 Employment Action
202.0 Diserimination Interrogatories to Employee
203.0 Ha!'IISSment Interrogatories to Employ""
204.0 Disability Disctlmlnation
205.0 Discharge in Violalion of PubliC Polley
200.0 Oefamatton
207.0 lntema! Complaints
208.0 GoiiEOmmental Compl01ints
209.0 Other Employment Claims by Employee or Against
Employer
210.0 Loss of income Interrogatories to Employee
211.0 L.o&s of income lnlaroQatories to Employer
212.0 Physical, Menial, or E.mottonallnjuMes-
lnterrogatori"" to Employee
213.0 Other Damages Interrogatories to Employee
214.0 lnsuranCG
215.0 Investigation
216.0 Denials snd Speoial or Affirmative Defenses
217.0 Response to Request for Adml$$ions
200.0 Conlra<:t Formation
[X] 200.1 Do yau oonlend !hat the EMPLOYMENT
relallonshlp was at 'st will"? rr so:
(a) sla!e all facts whloh you base this
contention;
(b) statEI thlf name, ADDRESS, and telephcne
number of each PERSON who has knowledge
of those lac!s; ana
(c) identify all DOCUMENTS that support your
contenflor.
200.2 Do you ccntend that the EMPLOYMENT
relationship was not at wiU'? If so:
(a) state all facts upon which you base this
oontention;
(b) state the name, ADDRESS, and telephone
number of each PERSON who has knowledge
of those fads; and
(c) identify all DOCUMENTS that supporl your
contention.
lil.l 200.3 Oo you contend that the EMPLOYMENT
relationship was govemed by any
agr..,.,..ni-Wrilten, oral. or implied? If so:
(a) slate alll'acts upon which you base this
contenVon;
(b) state the name, ADDRESS, and
number of each PERSON whc has knowledge
of those fac:rs; and
(c) identify all DOCUMENTS that support your
oontemion.
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[][] 200.4 Was any part of the parties' EMPLOYMENT
relationShip governed in whole or in part by any
wril1lln rule$, guidelines. policies, or pnxedures
established by the EMPLOYER? If so, for each
DOCUMENT IX>I1II!Iining the written rules,
guidelines. poliCies, or proc00ures:
(a) state the date and title of Ule DOCUMENT and
a general desaiption of its contents:
(b)
(c)
state the manner in which the DOCUMENT was
oommunicated to employees: ami
stat& the manner. in which employees
aclcnOY.iedged either receipt of the DOCUMENT
or knowledge of its contents.
!JD 200.5 Was any part of the parties' EMPLOYMENT
relatloil&llip covered by one or mM! colledive
b1119alnlng ag'-Tlerrts or memorandums of
undel'lltandlng between the EMPLOYER (or an
auoeiat!on of employers) and any labor union or
employee association? If oo, lor each collective
bargaining agreement or memorandum of
uooerstandlng. stste:
(a) !tie names and ADDRESSES of the parties to the
collective bllfllalning agree._,! or memorandum of
understanding;
(b) !tie beginning and ending dat .... If appficable, of the
collective bargaining agreement or manorandum of
undE>rstanding; and
(c) which parts of the collectlve bargaining agreement or
memorandum of undenotanding, if any. govern (1)
any dispute or claim rererred to In tt'le PLEADINGS
and (2) the rules or procedures lor T\l$0lving any
dl$pule or claim referred to In ttle PLEADINGS.
c::J 200.6 Do you contend 1hat ttle EMPLOYEE and the
EMPLOYER were In a busins$$ fijliationship other
than an EMPLOYMENT relationship'? II so. for each
relaUon&llip:
(a) state the names of the parties to the
(b) identify tile nllaUonship: and
(c) slate allacts upon whlc!l you base yout contention
that !he partie$ were in a reletionshlp other than an
EMPLOYMENT relati0ll$hlp.
201.0 Adverse Employrnant Action
DO 201.1 Was the EMPLOYEE involved in a iERMINATION7
If so:
(a) state all reasons for the EMPLOYEE'S
TERMINATION;
(b) state the name, ADDRESS, and telephone number of
each PERSON who participated In the
TERMINATION decision;
(c) stste the name. ADDRESS. and telephone number of
each PERSON wtlo provided any 10formatlon relied
upon In the iERMINA TION decision; and
(d) ldentlly all DOCUMENiS relied upon in lhe
TERMINATION decision.
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l][] 201.2 Are there any fad$ that would support the
EMPLOYEE'S TI!!RMINATION U'lat were flrst
discovered after the TERMINATION? If so:
(a) state the sp!ilCific facls;
DISC-002
(b) state when and tlow EMPLOYER llrst leamed or
each specifoc fact;
(c) state !he name. ADDRESS, and teleptlone number of
each PERSON who has knowledge of the specifiC
fad$; and
(d) identify a DOCUMENTS the! these speeific
fact&.
[][) 201.3 Were there any other ADVERSE
EMPLOYMENT ACTIONS, including (fhe
asking patty should list the ADVERSE
EMPLOYMENT ACTIONS}:
to Jane Miller that
her position was oelng eliminated.
If so, lor each action, provide lhe lollowlng:
(a) an "";!SOOi for each ADVERSE EMPLOYMI!!NT
ACTION;
{b) the name. ADDRESS, and teleptlone nurnbar of
each PERSON who participated in making each
ADVERSE EMPLOYMI!!NT ACTION decifsion:
(C) the name, ADDRESS, and lelephone number
of each PERSON who provided any lnfurrnalion
relied upon in making each ADVI!f!SE
EMPLOYMENT ACTION decision; and
(d) the identity of aU DOCUMENTS re6ed upon in
making each ADVERSE EMPLOYMENT
ACTION decision.
[K] 201.4 Was !he TERMINATION or any ottler
ADVERSE EMPLOYMENT ACTIONS referred loin
Interrogatories 201.1 through 201 3 based in whole or in
pert on the EMPLOYEE'$ job performance? If so, tor each
action:
(a) identify the ADVERSE EMPLOYMENT ACTION;
(b) Identify the EMPLOYEE'S specifiC job
performance that played a role In ttlal ADVERSE
EMPLOYMENT ACTION;
(c) identify any rule$, guidelines, policies, or
procedures that were used to evaluate thE>
EMPLOYEE'S specific job perfurmance;
(d) stale the names, ADORESSE;S, and telephone
numbeT$ of all PERSONS who had l'l!Sponslbllty lor
evaluating the specific job performance of tile
EMPLOYEE;
(e) stale tile names, ADDRESSES, and telephone
numbers of all PERSONS wtlo have knowledge of the
EMPLOYEE'S specific job perlormance that played a
role in that ADVERSE EMPLOYMENT ACiiON; and
(f) all wamings givBn wlfll rt>Gpec:t 1o the
EMPLOYEE'S specific job performance.
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D 201.5 Was any PERSON hired to replace the
EMPLOYEE afterlhe EMPLOYEE'S
TERMINATION or demotion? If so. state the
PERSON"S name, job title, Qualifications,
ADDRESS and talephone number. and the
date the PERSON was hired.
DlJ 201.6 any PERSON performed any of the
EMPLOYEE'S former jOI> duties aner the
EMPLOYEE'S TERMINATION or demotion? If
so:
(a) stale the PERSON'S name,job HUe,
ADDRESS, and telephone number,
(b) Identify the duties; and
(c) state the d't. on which the PERSON started to
perform the duties.
0 201,7 If the ADVERSE EMPLOYMENT ACTION involved
the or relo;sat to seleot lhe EMPLOYEE (for
example, for hire, prQfllotlon, lrarosfer, or training), was
any other PERSON seleCied Instead? if so, for each
ADVERSE EMPLOYMENT ACTION, state the name,
ADDRESS, and telephone number of each PERSON
selected: the date !he PERSON was and the
reuon the PERSON was sele(;!ed instead of the
EMPLOYEE.
202.0 Olscriminallon-lnterrogatorles to Employae
0 202.1 Do you contend that eny ADVERSE
EMPLOYMENT ACTIONS against you were
disc:riminalory'? If so:
(a) identify each ADVERSE EMPLOYMENT
ACTION that involved unlawful dlscrirninallon;
(b) each cheracteristio (for example. gender,
race, ege, etc.) onwhidl you base yoiJf claim or
claim& of disa'lmlnellon:
(c) state all facts IIIlO" which you base each clllim
of discrimination;
(d)
(e)
sta1a the name, ADDRESS, and teleph.;me number of
each PERSON With knowledge of those tacts; and
identifY all DOCUMENT$ evidencing those facts.
::::::::J 202.2 State all fads upon which you base your contenuon
that you were qualified to pelform any job whioll you
contend wa denied to you on lll;COUnl or unlawful
discrimination.
203.0 Harassment-lnterrogatcrtes to Employee
203.1 Do you contend t11at you were unlawfully harassed in
your employment? If so:
(a) S!8!e the name, ADDRESS. telephone number, end
employment position of eseh PERSON whom you
contend harassed you:
(b) for each PERSON wt1om you contend harassed you.
describe t11e harassment.
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DISC..002
(c) Identify each chlll'lldlorislic (for example, gender.
race, age, eto.) on which you base yoorclaim of
hatassment;
(d) state all facts upon which you base your
contention !1\a! you were unlawfully harassed;
(e) state the neme. ADDRESS, and telephone
n!JI'Ob&r of each PERSON with knowledge <If
thosefaot11;and
(I) Identify all DOCUMENTS evidencing those facls.
204.0 Disability Discrimination
D 204.1 Name and describe each di$<1blllty alleged in the
PLEADINGS.
D 204.2 Does the EMPt.OYEE eltege any injury or mne"S
that arose out of or In the course of EMF't.OYMENT?
lfso, state:
(a) tile nature of such injury or iHness;
(b) how such injury or Illness occurred;
(c) the date on which such injo.ry or Illness
occurred;
(d) whether EMPLOYEE has filed a workers'
compensation claim. If so, stale the date and
outoome of !lie claim; and
(e) whether EMPLOYEE has Aled or applied
for tisabllity benefits of any type. If so, state the
date. identify the nature of !lie benefits applied
for. and !lie outcome of any such appRc:ation.
D 204.3 were !here any communloetions between the
EMPLOYEE (or the EMPlOYEE'S HEALTH CARE
PROVIDER) and the EMPLOYER about the type or
extent of any disabMity of EMPLOYEE? If so:
(a) state the name, ADDRESS, 1111d telephone
number of eaoh pe!'$0n who made or received
!lie eommuniealion&;
(b) stale the name, ADDRESS, and telephone
number Of each PERSON IMio witneased the
oomm unicetions;
(C)
(d)
describe the dslil and sub&!ance of the
communications; and
identify each DOCUMENT that rem to the
communicetions.
204.4 Did the EMPLOYER have any information
about the type, or extent of any disability of
EMP t.OYEE other Ill an from eommunloetlons with th"
EMPLOYEE or the EMPLOYEE'S HEALTH CARE
PROVIDER? II so, state the sources and substance of
that information and th9 name. ADDRESS, and
telephone number of each PERSON who provided or
received the informatiOn.
i=:J 204 5 Did the EMPt.OYEE need any
eceommoda!lon to perform any function of the
EMPLOYEe'S job position or need a transfer to
another position as an accommodation? If so,
describe the accommodations needed.
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204.6 Were there any oommunicaiions between the
EMPLOYEE (or U1e EMPLOYEE'S HEALTH CARE
PROVIDER) and the EMPLOYER about any possible
aooommodatlon of EMPLOYEE? II so, for each
communication:
(a) state the name. ADDRESS, and telephone
number of each PERSON who made or
receiyjl(j the communicstion;
(b) Slate the name, ADDRESS, and telephone
number of each PERSON who wltnetaed the
communication;
(c) <ieoorlbe the date and substance of the
.;ommunlcaUon; and
(d) id....mty each DOCUMENT the! refers to the
cornmuni011tion.
0 204.7 What did the EMPLOYER consider doing to
accommodate the EMPLOYEE? For each
accommodation considered:
(a) accommodation considered; .
(b) state whether lhe accommodation was offered to the
EMPLOYEE;
(c) state lhe EMPLOYEE'S response; or
(d) if !he accommodation was no! offered, all the
reasons why thJl; decision wes made;
(e) state the name. AOORESS, and telephoM number of
each PERSON who on behalf of EMPLOYER made
any dedslon about whllt accommodations, if any, to
make for the EMPLOYEE; and
(f) state lhe name, ADDRESS, and telephone number of
eaoh PERSON who on of the EMPLOYER
made or receoved any communications about what
l any, 10 make for the
EMPLOYEE.
205.0 Discharge in Vlola!ion of PubUc Policy
0 205.1 Do you contend ihlltlhe EMPLOYER took any
ADVERSE EMPLOYMENT ACTION against you in
..tolatlon of public policy? It so:
(a) identify the provision, statute,
regulation, or other of the pUblic policy that
you cont$11d was violated; and
(b) slate all facts upon which you base your
that the EMPLOYER violated public policy,
206.0 Defamation
206. 1 Did !he EMPLOYER'S agents or employees
PUBLISH any of the allegedly defamatory statements
identified in the PLEADINGS? If so. for each
statement:
(a) identify the PU6LISHED statement;
(b) state !he name, ADDRESS, telepho11<11 number. and
job tille of each pernon wno PUBliSHeD the
statement;
(c) state the name, ADDRESS, and telephone number of
each person to wnom the slatement was
PUBLISHED;
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DISC-002
(d) state whether, a! the time tho statement was
PUBLISHED, the PERSON who PUBUSHED the
statement b!IOIIeved itlo be true; and
(e) state aR facts upon which the PERSON who
published the statement based the belief !hat was
true.
D 206.2 Slate the name and ADDRESS of each agent or
employee of thl! EMPLOYER who responded to any
inquiries regarding the EMPLOYEE after the
EMPLOYEE'S TERMINATION.
C 206.3 State !he name end ADDRESS of the recipient
and the substanoa of each poat TERMINA noN
statement PUBLISHED about EMPLOYEE by any
agent or employee of EMPLOYER.
207.0 lntemal Complaints
[1[) 207.1 Were there any Internal written poUcin Or
regulations of the EMPLOYER that apply lo the mal<lng
of a complaint of the type that is the subject matter of
this lawsuit? II so:
(a) state the title and date of each DOCUMENT
contaoning the policies or regulations a
general description of 111e DOCUMENT'S
contents;
(b) state the manner in which the DOCUMENT W8ll
communicated to EMPLOYEES;
(c) slllte the manner. If any, in which EMPLOYEES
acknowledged receipt of the DOCUMENT or
knowledge of its contents, or both,
(d) stste, EMPLOYEE failed
1o UM any available internal
procedures, all facts that support that
contenHon: and
(e) state,lf you contend lhallh!ll EMPLOYEE'S
failure to use internal complaint prooedures was
excused, all facts why the EMPLOYEE'S use of
!he pr<;x;edurlil& was excused.
[](] 207.2 Did the EMPLOYEE complain to !he
EMPLOYER about any of the unlawful conduct
alleged in !he PLEADINGS? If so, for eac11
oomplalnt
(a) state the date of the complaint;
(bl state the natura ol the complaint.
(c) state the name and ADDRESS of eacl1
PERSON to whom !he complaint was made;
(d) state !he name, ADDRESS, telephone number,
and job Iitie of tNCh PERSON who investigated
the complaint;
(el slate the name, ADDRESS, telephone number.
and job title of each PERSON who participated
In making dacisiona about how to conduct the
investigation;
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(0 state the name, ADDRESS, telephone number,
and job Iitle of e<leh PERSON who was
interviewed or who provided an oral or wriHen
statement as part of the invesdgation or the

(g) state the nature and date of any action taken in
rli$f'Onse to the complaint;
(h) state IM\ether the EMPLOYEE who made the
complaint was made aware of the actions taken
by the EMPLOYER in -ponse lo the
complaint, and, how and when:
(I) IdentifY all DOCUMENTS relating to the
complaint. the Investigation, and any action
taken in msponse to the complaint; and
Gl state the name, ADDRESS, and telephone
number of each PERSON wllo has knowledge
of the EMPLOYEE'S complaint or the
EMPLOYER'S rel!PC>nse to the c::onnplaflt.
208.0 Governmental Ccmplainta
DO 208.1 Old the EMPLOYEE file a claim. or cherge
with any govemmenlal agency that invt>!ved any of the
materiel allegatione made in the PL!ADINGS? If so. for
each claim, <:omplaint. or charge:
(e) state the date on whiet1 H was filed;
(b) slate the name and ADDRESS of the agency with
which was filed;
(c) state the number assigned to the claim, complaint, or
charge by the agency:
(d) $late the neture of each claim. complaint. or charge
made:
(e) stat. the date on which the EMPLOYER wQ
notified of lhe claim. complaint, or charge;
(I) state the name, ADDRESS, and telephone number of
aft PERSONS within the govemmsntal ag1111cy witl1
whom !he EMPLOYI!R has had any contact or
communication regarding the claim. complaint, or
charge;
(g) state IM\ether a right to sue notice was issued and, It
so. when; and
(11) alate IM\ethsr any ftndings or conclusions negarding
the complaint or cherge have be&n made, and, if so.
!he date and dasctiption of tile agency's !lndings or
ooncluslons.
CXJ 208.2 Did the EMPLOYER respond to any claim,
c::omplaint. or charge In lntemogatory 208.1? If so.
for aach claim, complaint, or charge:
(a) state !he nature and date or any lnv&Stigation don" or
any other actiOn taken by !he EMPLOYER in
response to tile claim, complaint. or charge:
(b) state the name, ADORESS, telephone number. end
job tiUe ol each person who Investigated the claim,
or charge;
(c) state the name, ADDRESS. telephone number. and
job Utie of each PERSON who participated in makin11
dectsJons about how to conduct !he lnl/e$!igation; and
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DISC-002
(d) state the name, ADORI!SS, telephone number, and
job tiU. of each PERSON Who was interviewed or
who provided an oral or wri"en statement as part of
tha investigation.
209.0 Oth., Employment Claims by Employee or
Against Employer
D 209.1 Except for this action, In the past 10 years has
the EMPLOYE! flied a civil action against any
emplo)'et regllrding lhe EMPLOYEE'S employment? If
so, lor each civil action:
(a) state the name, ADDRESS, and telephone
number of each employer against whom the
action was ftled;
(b) state the court. names of the parties, and case
number of !he civfi action:
(c) state tha name, ADDRESS, and telephone
number of any attotney representing the
EMPLOY!!!; and
(d) state wh61her lhe action has been resolved
or Is pending.
[[] 209.2 Except fbr this action, in the past 10 years has
any employee fileQ a civil action against the
EMPLOYER llilgarding his or her employment?
If so, lor each civil action:
(a) state lhe ADORESS, and telephone
number of each employee who filed the action;
(b) state the ocurt. nam$$ of the parties, and case
number of the civil action;
(c) alate !he name. ADDRESS, and telephone
number of any attotnny represenijng lhe
EMPLOYER; and
(d) state whelhar the action nas been resolved or
iS pending.
210.0 loss of lne!>me---lnt.rrogaiori to Employee
::::::J 210.1 Do you attribute any foes of income. benefttl,
or earning capacity to any ADVI!RSE
EMPLOYMENT ACllON? (lfyQUT&n_,is "no," do
not SMWIIf 210.2 through 210.6.)
D 210.2 State the total amount of Income, beneftts. or
eemlng capacif)t you have lost to date and how the
amount was ea!Culated.
D 210.3 Wll you lose income, benefits. or earning
capacif\t in the future as a result ot any ADVERSE
EMPLOYMENT ACTIDIII1 If so, state the total amount
of income, benefits, or earning capacity you expect to
lose, and how the amount was calculated.
D 210A Have you attempted 1o minimize the amount of
your lost income? I! so, d8$Cribe how; ff not,
explain wily not.
FORM INTERROQATORIE8-EMPLOYMENT LAW
0067
Elfi/29/2ElEl9 14:24
D 210.5 Have you purchMed any benefits to reptaee
any benelils to whidl you would have been entl11e0 W
the ADVERSE EMPLOYMENT ACTION had not
occurred? If so, $\ale the CQSt for eaen benefit
pui'ChaSeO.
D 210.6 Have you obtained other employment since any
ADVERSE EMPLOYMENT ACTION? II $0, for ea11 new
employment:
(a) state when the new employment commenced;
{b) state the hourly rate or monthly salary for the
new employment: and
(c) slate the benefits avalleble from the new
employment.
211.0 Loss of tneom&-lnterrogatottes to Employer
{See instruction 2(d).J
D 211.1 Identify each type of BENEFIT to whiCh the
eMPLOYE! would heVe been entitled, tram the dale
d the ADVERSE EMPLOYMENT ACTION te> the
present, if the ADVERSE EMPLOYMENT ACTION
had not happened end the EMPLOYEE had
remained in the same job posiliOO. For eadl type of
benefit. state the amount the EMPLOYER WC>uld
have peld to provide the benefit for the EMPLOY'!!!!
during thiS time period and the valued the BENEFIT
to the EMPLOYEE.
D 211.2 Do you oornend that the EMPLOYE! has not made
re8$0nable ellorts to minimize the amount of the
EMPLOV'!!I!'S 10$1 income? If so:
(a) describe what more EMPLOYEE should have done;
{b) state the names, ADDRESSES, and telephone
numbers of all PERSONS who have knowledge of
the fads that support you< contention; and
(c) identify all DDCUM!NTS that supp<>r! your
contention and state the .,..,..., ADDRESS. and
telephone number d the PERSON who has e,.;h
DOCUMENT.
211 .3 Do you rontend the! any of the lost income claimed
by the EMPLOYEE. as disclosed in discovery thus tar
in thiS ces.. Ia unreasonable or was not caused by
the ADVERSE EMPLOYMENT ACTION? If so:
(a) $late the amount of claimed lost income that you
dispute;
(b) stele aR facti upon whiCh you base your contention;
(c) state the nam.,, ADDRESSES, end telephone
numbers of an PERSONS who have knowledge of
the factS; and
(d) identity all DOCUMENTS that support your
contention and state lt1e ADDRESS, and
telepho"" number of the PE'RSON who has oach
DOCUMENT.
STAMP LAW
PAGE 19/26
212.0 Physical, Mental, or Emotional Injuries-
Interrogatories to Employee
DISC002
0 212.1 Do you attribute any physical, mental, or
in)Unes to the ADVERSE EMPLOYMENT ACTION? (If
your answer Is "no, do nor answer lnt8f'r0gl!ltories 212.2
lllrough 212. 7.}
D 212.2 Identify each physieal, mental, or emotional
injury !hat you attribute to the ADVERSE
EMPLOYMENT ACTION and the area of yo.x body
affected.
D 212.3 Do you stil heve any complaints of physical,
menial, or emoUonatln)urfes the! you attribute to the
ADVERSE EMPLOYMENT ACTION? If so, for each
complaint state:
(a) a of !he lnjuTy,
(b) wheltter the complaint IS subSidl119, remaining
lhG same, or becoming worse; and
(c) the frequency and duration,
D 212.4 Did you receMI any comtUitation or examination
(except tram expert witnesses covered by Code of Civil
Procedure section 2034) or treatment from a HEALTH
CARE PROVIDER for any Injury you attribute to tho
ADVERSE EMPLOYMENT ACTION? If so. tor each
HEAlTH CARl! PROVIDER state:
(a) the name, ADDRESS, and telephorle numboir.
{b) the type of consultation. examination, or
treatment provided;
(e) the dates you received oonsultatlon,
examination, ormeabnent; and
(d) the <tlarges to date.
D 212.5 Heve you taken any medicatlon, prescribed or
not, as " resuft of that you attribute Ill the
ADVERSE EMPLOYMENT AC110N? If so, for each
medicallon state:
(a} the name Q( the medication;
(b) the name, ADDRESS and telephone number d
the PERSON who presct1be<f or furniShed
{<;) the date prescribed or fumiehed;
(d) the dat'l!s you began and stopped taking it; and
{e) the cost to date.
D 212.1! Af9 there any other medical services not
previously lillled in response to interrogatory 212 A (fQr
ox...,ple, ambulance, nursing, prosthetiC$) that you
received for InjUries attributed to lha ADVERSE
EMPLOYMENT ACTION? If so, for each service slate;
(a} the nature:
(b) the date;
(c) the cost; and
(d) the name. ADDRESS, end telephone number or
each HEAlTH CARE PROVIDER.
FORM INTERROGATORIES-EMPLOYMENT LAW
0068
0qf29/2009 14:24 831373""
0 212.7 HasanyHI"ALTHCAREP.DERedllised
that you may require future or additional treatment for
any lnjurtes 11m! you attribute tt> the ADVERSE
EMPlOYMENT ACTION? II so, for each injury slate:
(a) the name and ADDRESS of each HEALTH
CARe PROVIDER;
(b) the complaints for which the treatment was advised;
and
(o) the nature, duration, and e&timated cost ofthe
treatment.
213.0 OtMr oamag....-lnterrogator1es to Employee
D 213.1 A,. the,. any olller damages 11\al you attribute to
the ADVERSE eMPLOYMENT ACTION? If so, lor
each item of damage state:
(a) the nature;
{b) the dele It oeourred;
{c) the and
(<I) the name, ADDRESS, and telephone number of
each PERSON Who Ms knowledge of the
nature or amount of the
D 213.2 Do any DOCUMENTS support the exiStence or
amount of any Item of dama9es claimed in lnterrogatOI)I
213.1 ? If so, identify the OOCUMENTS and state the name,
ADDRESS. and telephone number ofihe PERSON who
haS each DOCUMENT
214.0 lnsu,.nce
[](] 214.1 Atthe tlme of the ADVERSE EMPLOYMENT
ACTION, was there in effect any policy of insvrance
through which ycu W!J'' or might be insured in any
manner for the damages, claims, or actions that have
arisen out of the ADVERSE EMPLOYMENT ACTION?
IJ so, for each policy slate:
(a) the kind of coverage:
(b) the name and ADDRESS of the insurance
company:
(c)
(d)
(e)
(f)
(g)
the name, ADDRESS, and telephone numbar of
each named insured;
the llQ!icy number.
the llmlb of oove"'ge lor eaCh type of coverage
contained in the policy;
whether any reservation of rights or conlroversy
or coverage dispW! el<ists between you and the
Insurance company: and
the name, ADDRESS, and telephone number of
the cu&todian of the policy
STAMP LAW CF
0
-
215.0 lnvKtlgatlon
PAGE 2<1/26
OISC-002
[][] 215.1 HaV9 YOU OR ANYONE ACTING ON YOUR
BEHALF Interviewed any individual concerning thE!
ADVERSE EMPLOYMENT ACTION? If so. fot each
individual stale:
(a) the name, ADDRESS. and telephone number of
the individual interviewed:
(b) the date of the interview; and
(c) the name, ADDRESS, and telephone number
of the PERSON who conducted the interview.
[X] 215.2 Have YOU OR ANYONE ACTING ON YOUR
BEHALF obtained a wr1tten or recorded statement from
any individual concerning lhe ADVERSE EMPLOYMENT
ACTION? II so, for eaCh 111atement state:
(a) the name, ADDRESS. and telephone number of
the individual from whom the statement was
obtained;
(b) the name, ADDRESS, and telephone number of
the individUal Who obtained the lllalement;
(c) the date the statement was obtained: and
(d) the name, ADDRESS, and telephone number of
each PERSON who has the original $1a\ement or
aoopy.
216.0 Deniala and Spedal or Affirmative Defenses
D
216.1 Identify each denial of a material eltegatioo
and each special or affirmative defenoe In your
PLeADINGS and for each:
(a) Slllte all fa<:>lll upon which you base the denial or
special or aflirm:atl\te defense;
(b) slllte the names, ADOR.!!SSES. and telephone
numbers of all PERSONS who have l<nQwledge
of those fa..W; and
(c) identify all DOCUMENTS and all other tangible
things. that support your denial or special or
defranse, and state the name,
ADDRESS, and telephone number of the
PERSON who has each DOCUMENT.
217.0 Response to Request for Admislllons
D
217.1 is your response to each reqll<!St for
served these interrogatories an unqualified
admission? If not, for each reSI)Onse that is not en
unqualified admission:
(a) $late !he number of the
(b) $late al facts upon Which you your
rwponse:
DO 214.2 Ate you selflnsured under any sllltute fot the (c) state the names, ADDRESSES, and telephone
damages, claims, or actions that have an sen out of the numbers of aH PERSONS Who h"'ve knowledge
ADVERSE EMPLOYMENT ACTION? If so, specify the of thOS<l facts: and
statute. 44 t (d) identify all DOCUMENTS and other tangible
things that support your nasponse end state the
name, ADDRESS, and telephone number of the
PERSON whO has ach DOCUMENT or thing.

Oi'SC.oo>- ' "'ll'll FORM INTERROGATORIEs-EMPLOYMENT LAW @EJ3 .... '"'
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PROOF OF SERVICE
DECLARATION OF SUZANNE SOLOMON IN SUPPORT OF MOTION BY
DEFENDANT CITY OF CARMEL-BY-THE-SEA TO DISQUALIFY PLAINTIFF'S
COUNSEL
D
Michael W. Stamp
4 79 Pacific Street, Suite One
Monterey, CA 93940
By placing a true copy thereof in a sealed envelope( s ), addressed as above, with postage thereon
business practices. I am readily familiar with my finn's business practice of collection and
Based on an agreement of the parties to accept service by email or electronic lransrnission, I caused
a reasonable time after the lransrnission, any electronic message or other indication that the
I declare under penalty of perjury that the foregoing is true and correct and of my personal
knowledge.
Executed at San Francisco, California on September l, 2009.

{AndreaS. Bolniek]
99(18 1.1 CA200.;J 14
- I -
SOLOMON DECLARATION SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0070
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Richard C .. Bolanos, Bar No. 11 1343
Ibolanos@lcwlegal.eom
ssolomon@lcwlegal.eom
gcban@lcwlegal.eom
A Professional Law Corpomtion
Telephone: (415) 512-3000
Facsnnile: (415) 856..0306
0
FILED
SEP U 1 2009
CONNIE MAZZEI
GLelK OF THE SlJPERKl'\ COURT
. . DEPUlY
S.HANfl
SUPERIOR COURT OF THB STATE OF CALIFORNIA
COUNTY OF MONTEREY
MONTEREY DNISION
IANE KINGSLEY MILLER,
Plaintiff.
v.
DOBS I through 100, inclusive,
Defendant.
Case No. M99513
DECLARATION OF HElD[ BURCH
SUPPORTING MOTIONBYDBFENDANT
CITY OFCARMBL-BY-THE-SEA TO
DISQUAUFYPLAINTIFF'S COUNSEL
Time: 9:00 a.m.
Dept.: 14
[Exempt ftom filing fees pursuant to Cal. Gov.
Code 6103]
I. Heidi Burch, do hereby declare the following;
1. I have been employed by Defendant City of Carmel-by-the-Sea since 2005. My
cummt position is Assistant City Administrator/City Clerk. In that capacity, I have personal
knowledge oftlie facts set forth below, or have obtained such knowledge through a review of true
and correct copies of documents in the City's files with which I am familiar. If c a l l ~ upon to do
so, I would testify 'ompetently to such facts and the authenticity of such documents.
. I-
DECLARATION OF HB!DI BURCH IN SUPPORT OF MOTION TO DISQUAIJFY PLAINTIFF'S COUNSEL
0071
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2. The City of Cannel-by-the-Sea ("City") was served with this lawsuit on June 17,
2009.
3. As the City Clerk for the City of Camel-by-the-Sea, I serve as the custodian of
City records. During July and August 2009, I searched the City's files regarding Michael W.
Stamp's prior representation of the City in personnel matters, including files that were retrieved
from storage.
4. I have reviewed City documents reflecting that in I 985, Michael W. Stamp of the
Law Offices of Michael W. Stamp provided legal advice to the City about the City's then-
proposed personnel ordinance. The documents reflect that in December 1985, Mr. Stamp
provided Douglas J. Schmitz, who at that point was the City Administrator of Carmel-by-the-Sea,
advice regarding the personnel ordinance, including advice regarding compensation, selection and
appointment of employees, medical leave, disciplinary proceedings, grievance resolution and
performance evaluation.
5. I have reviewed City documents reflecting that in 1986, Michael W. Stamp of the
Law Offices of Michael W. Stamp provided legal advice to then-City Administrator Schmitz
about what tasks should be included in a City employee's job description.
6. I have reviewed City documents reflecting that in 1986, Michael W. Stamp of the
Law Offices of Michael W. Stamp provided legal advice to then-City Administrator Schmitz
about the parameters of at-will employment as it related to City employees.
7. I have reviewed City documents reflecting that in 1987, Michael W. Stamp
provided legal advice to then-City Administrator Schmitz regarding an employer's regulation of
personal relationships within the workplace, including advice regarding the making of
employment decisions about employees who have personal relationships with other City
employees.
provided legal advice to then-City Administrator Schmitz regarding the drafting of employment
agreements between the City and certain employees.
-2-
DECLARATION OF HEIDI BURCH IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0072
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provided legal advice to then-City Administrator Schmitz regarding the content of the City's
policy prohibiting sexual harassment. The documents reflect that Mr. Stamp proposed certain
revisions to the policy as well as provided other advice about the policy. The documents also
reflect that Mr. Stamp provided legal advice to the City regarding investigations of sexual
harassment complaints.
I 0. I have reviewed City documents reflecting that in 1998 and 1999, Michael W.
Stamp provided legal advice to the City regarding disciplining and terminating a City employee
and the matter included issues related to inedicalleave. Mr. Stamp represented the City in this
matter for at least a one-year period, and provided monthly invoices to the City (which I have
reviewed) describing his work on this matter.
11. I have reviewed documents reflecting that in 200 I and 2002, Michael W. Stamp of
the Law Office of Michael W. Stamp represented the City in a matter involving an employee
accused of, among other things, inappropriate treatment of female employees as well as issues
related to medical leave. Mr. Stamp represented this City in this personnel matter over a period
of several months. The documents reflect that Mr. Stamp provided advice regarding the timing,
method and seope of the investigation of the allegations against the employee, and various
options to resolve the matter.
12. Neither Michael W. Stamp nor anyone from the Law Office of Michael W. Stamp
ever provided written disclosure to the City of Carmel-by-the-Sea explaining that the Law Office
of Michael Stamp was planning to represent Jane Miller or advising the City of the actual or
reasonably foreseeable adverse consequences that that representation would have on the City.
Nor did Michael W. Stamp or anyone from the Law Office of Michael W. Stamp ever request
written consent from the City to that firm's representation of Plaintiff in this action. The City has
not consented in writing, or in any other form, to the Law Office of Michael W. Stamp's
Ill
Ill
Ill
- 3 -
DECLARATION OF HEIDI BURCH IN SlJPPORT OF MOTION TO DISQUALIFY PLAil'iTIFF'S COUNSEL
0073
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representation of Plaintiff in this action.
I declare under penalty of peijury under the laws of the State of California that the
foregoing is tme and correct and that this declaration was executed on August tk, 2009 at
Carmel-by-the-Sea, California.

!04091.1 CA200.014
4
DECLARATION OF HEIDI BURCH IN SUPPORT OF MOTION TO DISQUAlJFY PLAINTIFFS COUNSEL
0074
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PROOF OF SERVICE
DECLARATION OF HEIDI BURCH SUPPORTING MOTION BY DEFENDANT CITY
OF CARMEL-BY-THE-SEA TO DISQUALIFY PLAINTIFF'S COUNSEL
D
Michael W. Stamp
Monterey, CA 93940
VIA CCP 1013(a):
business practices. I am readily familiar with my ftrm's business practice of collection and
VIA ELECfRONIC EMAtL- CCP 1010.6(b)(6)
knowledge.
Executed at San Francisco, California on September 1, 2009.

[AndreaS. Bolnick]
99081.1 CA200.0 14
- 1 -
DECLARATION OF HEIDI BURCH IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0075
0 0
SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY
Miller, Jane Kingsley, Out of Court Entries by Clerk
Plaintiff
Clerk: Amy Seydel
VS.
Date: September 29, 2009
City of Cannel-by-the-Sea, Time: 1:23 p.m.
:
Defendant
i
Case No. M99513
.
i
Per order of Presiding Judge Adrienne M. Grover, case is assigned to Judge Larry E. Hayes in the Salinas Division.
Case continued to Friday, October 23, 2009 at 8:45a.m. in Salinas courtroom 4 for Plaintiffs motion to Disqualify.
Case remains set Thursday, December 17, 2009 at9:00 a.m. in Salinas courtroom 4 for Case Management
Conference.
Page 1 of 1
!
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0076
0
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Superior Court of California, County of Monterey
Miller, Jane Kingsley,
Plaintiff
vs.
City of Cannel-by-the-Sea,
Defendant Case Number: M99513
CERTIFICATE OF MAILING
C.C.P. SEC. 1013a
I do hereby certify that I am not a party to the within stated cause and that on
SEP 2 9 ?QOg
______ __, I mailed true and correct copies of the following
document(s):
Out of Court Entries by Clerk dated September 29, 2009
in sealed envelopes at Salinas, California, directed to each of the following named
persons, as hereinafter set forth:
Michael W. Stamp
479 Pacific Street, Suite I
Monterey, CA 93940
Dated:
Richard C. Bolanos
!53 Townsend St., Suite 520
Connie Mazzei, Clerk of the Superior Court
of C ornia, CoWlty of Monterey
L - - - - - ~ - - - ~ ~ , ~ ~ - - - - ~
0077
0
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
6
0
7
8
9
COUNTY OF MONTEREY
10
11
12
Plaintiff,
v.
14 Defendants.
15
16
17
Case No. M99513
Complaint filed June 17, 2009
Time: 8:45 a.m.
Dept.: 4 (Hon. Larry E. Hayes)
18 MEMORANDUM OF POINTS AND AUTHORITIES IN
19 SUPPORT OF OPPOSITION TO MOTION BY DEFENDANT CITY OF
20 CARMEL-BY-THE-SEA TO DISQUALIFY PLAINTIFF'S COUNSEL
21
22
23
24
25
26
27
28
MILLERV. CiTY OF CARMEL-BY-THE-SEA
CASE No. M99513
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0078
0
0
1 TABLE OF CONTENTS
2 INTRODUCTION AND SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3 FACTUAL SUMMARY ................................................. 4
4 A Stamp's Retention by the City on Limited Occasions. . . . . . . . . . . . . . . . 4
5 B. Stamp's Representation of Employees' Claims Against Carmel. ...... 5
6 C. Representation of Jane Miller. . ............................... 6
7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8 I.
9
10
11
12
13
14
15 II.
16
17
18
19 Ill.
20
21
IV.
DISQUALIFICATION IN A SUCCESSIVE REPRESENTATION SITUATION
IS WARRANTED ONLY WHEN A FORMER CLIENT'S CONFIDENCES
MAY BE USED IN THE CURRENT REPRESENTATION AGAINST THE
FORMER CLIENT. AS A MATIER OF LAW, THE CITY HAS FAILED TO
ESTABLISH AN ADEQUATE FACTUAL BASIS FOR DISQUALIFYING
MS. MILLER'S COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A Motions to Disqualify Are Equitable in Nature. . ................... 7
B. The City Failed to Meet Its Burden for Disqualification
as a Matter of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. The Substantial Relationship Test and the Public Sector. .......... 10
MOTIONS TO DISQUALIFY ARE DISFAVORED BECAUSE
THEY ARE FREQUENTLY MISUSED AS LITIGATION STRATEGY AND
DEPRIVE THE CLIENT OF THE ATIORNEY OF HER CHOICE... . ....... 11
A Motions to Disqualify Opposing Counsel Are Disfavored. . . . . . . . . . . . 11
B. Ms. Miller Would Be Severely Prejudiced by Disqualification. . . . . . . . . 12
FROM 2003 TO SEPTEMBER 2009, STAMP REPRESENTED FIVE CITY
EMPLOYEES WHO MADE SERIOUS AND CONTROVERSIAL
EMPLOYMENT DISCRIMINATION CLAIMS AGAINST THE CITY AND
GUILLEN. THE CITY NEVER OBJECTED. THERE WAS NO CONFLICT.. . 14
UNDER EQUITABLE PRINCIPLES, THE CITY IS BARRED FROM
22 ASSERTING ITS CLAIM.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
23 CONCLUSION ...................................................... 15
24
25
26
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28
f"' Ac-1:': ll.tn U00h1 ~
MEMORANDUM OF POINTS AND AUlHORITIES IN
f"\oot"\CITH'"'\"1 Trl lJirvnr\1,1 Trl- niC:f"U IAI lt:V PI Alh.I'TII:'I:'C: ("'_f'"\IIN<!S:I
0079
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TABLE OF AUTHORITIES
CASES
3 Faughn v. Perez (2006) 145 Cal App.4th 592 ........................... passim
4 Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cai.App.4th 294 ............. 9
5 Gregori v. Bank of America (1989) 207 Cai.App.3d 291
.................... 9
6 H. F. Ahmanson & Co. v. Salomon Brothers, Inc.
7
8
9
19
20
(1991) 229 Cai.App.3d 1445 ........................................... 10
In re Charlisse C. (2008) 45 Cal.4th 145 .................................. 12
International Federation v. Superior Court (2007) 42 Cal. 4th 319 . . . . . . . . . . . . . . . 11
OTHER
Rules of Professional Conduct, rule 3-310(E) ................................ 8
Weil & Brown. Cal. Practice Guide: Civil Procedure Before Trial
21 (The Rutter Group 2009) 1]9:406.9-9.406.10, p. 9(1)-148 ........................ .
22
23
24
25
26
27
28
Nn
ii
MEMORANDUM OF POINTS AND AUTHORmES IN
0080
0
0
1 INTRODUCTION AND SUMMARY
2 Jane Miller, the Personnel Officer for the City of Carmel-by-the-Sea, has alleged
3 discrimination based upon age and sex. She is the fifth senior City employee to make
4 similar claims against City Administrator.! Richard Guillen since 2003. (Stamp 111131-
5 51.
2
) The first four matters settled, with the City Council agreeing to pay more than
6 $500,000 total in compensation. (Stamp 1152.) All five claimants, including Miller, have
7 been represented by attorney Michael W. Stamp.
8 In May 2008, while the fourth of those claims was active, Miller complained in
9 writing to the Mayor and City Council about conduct, language, and adverse
10 employment actions. She asserted that Guillen had engaged in inappropriate behavior,
11 and that he moved to eliminate Miller's job when she lost personal favor with him. She
12 presented claims that Guillen had sent scores of emails to her, in which he called her
13 "hottie" and "girlfriend," described himself as her "secret admirer," and made numerous
14 comments about his fantasy life with Miller after their imaginary "retirement" from the
15 City. She also claimed that Guillen had engaged in two inappropriate relationships with
16 female subordinates, and had rewarded those two women and punished others, such
17 as Miller, who complained or resisted. (Stamp 1154.)
18 In July 2008, Stamp filed discrimination complaints and obtained right-to-sue
19 letters on Miller's behalf with the California Department of Fair Employment and
20 Housing. Stamp notified the Mayor and City Council. Over the next eleven months,
21 Stamp unequivocally asserted Miller's claims in many communications with the City
22 Attorney, City Council, Mayor, and the City's long-time personnel lawyers (the same
23 firm representing the City in this case). (Stamp 111153-69.) In June 2009, Miller filed the
24 present suit. Discovery began immediately. Stamp took one deposition, sent out
25
26
27
' The City of Carmel-by-the-Sea's title for its city manager is City Administrator.
2
References to declarations are by the first name of the declarant, followed by
28 the number of the paragraph(s). For example, a citation to paragraph 52 of the
Declaration of Michael W. Stamp is cited as "Stamp 1152."
CASE No. M99513
1
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1 several discovery requests, responded to discovery requests, and prepared to review
2 documents that the City agreed to produce. (Stamp '11'1172-76.)
3 On September 1, 2009, the City mailed the present motion, claiming that Stamp
4 must be disqualified as Miller's attorney in the midst of litigation. By then, Stamp had
5 spent more than 200 hours working on Miller's claims, and his legal staff had spent
6 more than 240 hours. The City's lawyers had billed over $33,000 in evaluating and
7 preparing to defend the claims raised in the right-to-sue letters. (Stamp 'IJ69.)
8 Before September 1, 2009, the City had never raised any claim of conflict.
9 (Stamp 'IJ77.) The City's motion is based upon the City Clerk's "review" of unidentified
10 "records" that "reflect" services performed by Stamp going back to 1985. The City Clerk
11 started in Carmel in 2005, and is one of two women identified in Miller's Complaint as
12 receiving special favors from Guillen (Stamp 'lnf14, 19). She has no personal
13 knowledge of any of the underlying facts in her declaration, including the context and
14 circumstances of Stamp's prior legal services (id., '1114). The City refuses to identify the
15 records that the Clerk has reviewed, and refuses to allow access to them. (!d., 1112.)
16 The City's meager showing- an interested person's unqualified conclusions
17 about what unidentified documents "reflect"- falls far short of the materiality, specificity,
18 and direct evidence required by law. As Justice Premo wrote for the Sixth District Court
19 of Appeal, because disqualification motions implicate important interests, judges "must
20 examine these motions carefully" to ensure that the Court provides the parties with
21 "substantial justice." (Santa Teresa Citizen Action Group v. City of San Jose (2003)
22 114 Cai.App.4th 689, 711, quoting SpeeDee Oil v. Department of Corporations (1999)
23 20 Cal.4th 1135, 1144-1145.) The party seeking disqualification must present
24 competent evidence to demonstrate the actual material relationship of confidential
25 information to the current proceeding. (Faughn v. Perez (2006) 145 Cai.App.4th 603,
26 604-605.) The Court's inquiry must be fact-based and specific, realistic and cautious.
27 The Courts do not assume material similarity or prejudice arising from prior
28 representation. "[E]ven where the two representations involve the same general
Mlll.ERV. CITY OF CARMEL-BY-THE-SEA
,...AC:C ~ ( ) MQQf:\1":{
2
0PPOS1n0N TO MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0082
0
0
1 subject, disqualification is not required" (Santa Teresa, supra, 114 Cai.App.4th at
2 711.) The moving party must present far more than general conclusory statements.
3 Miller's opposition to the motion includes the declarations of Douglas J. Schmitz
4 (City Administrator from 1983 to 1992), Jerry Pullen (Personnel Officer from 1984 to
5 1998), Jere A. Kersnar (City Administrator from 1993 to 2000), and Jane Miller (top
6 personnel officer from 1999 to 2008). These four officials who have actual knowledge
7 of Stamp's prior work for the City agree that Stamp did not obtain confidential
8 information material to the Miller claims. They give important context to Stamp's past
9 representation of the City. Stamp's detailed declaration provides similar information
10 and the same conclusion. Thus, the only five persons with personal knowledge of the
11 earlier representation have stated under oath that there is no factual basis for
12 disqualification. (Schmitz f19; Kersnar f18; Pullen 1J9; Miller fl19; Stamp fl1!20-21, 24.)
13 "[A] motion to disqualify counsel ... has the potential for tactical abuse."
14 (Faughn v. Perez, supra, 145 Cal App.4th at 601.) Disqualification motions are
15 reviewed carefully where disquallfication would deprive the client of the services of an
16 attorney highly skilled in a particular area of the law who has spent many hours
17 preparing the case. (Zador Corporation v. Kwan (1995) 31 Cai.App.4th 1285, 1302;
18 Oaks Management Corp. v. Sup. Ct. (2006) 145 Cai.App.4th 453, 463.) Courts "must
19 be skeptical of the impetus and purpose of defendants' motion to disqualify [plaintiffs'
20 counsel] because it poses the very threat to the integrity of the judicial process that it
21 purports to prevent" (Sharp v. Next Entertainment (2008) 163 Cai.App.4th 410, 434.)
22 The City's motion makes no mention of Stamp's 2003-2008 representation of the
23 four other employees on claims similar to Miller's of forced "early retirement" by Guillen
24 that took place without objection by the City. Stamp's representation of Miller for 13
25 months before the lawsuit was filed also went unchallenged by the City, as did the filing
26 of the present lawsuit, and the vital rounds of discovery that followed. The fact that the
27 City never claimed a conflict for six years under these circumstances proves that the
28 City did not believe that there was any significant or material conflict. That fact is
r'/\c-c Mr.
3
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1 consistent with the sworn testimony of the City Administrators from 1983 to 2000 and
2 the City's personnel officers from 1983 to 2008. The Courts do not allow a party to wait
3 for years, knowing that litigation is reasonably possible, before claiming a conflict and
4 driving Plaintiffs chosen counsel from the case.
5 There is no basis for disqualification. The motion should be denied.
6 FACTUAL SUMMARY
7 This factual summary is a brief summary of the facts. The more detailed history
8 of facts is set forth in the supporting declarations filed with this Opposition.
9 A.
10
Stamp's Retention by the Citv on Limited Occasions.
Michael W. Stamp has practiced law in Monterey County since 1981. Stamp is
11 skilled in representing management-level public agency employees in claims arising
12 against their public agency employers. (Stamp 111-2.)
13 On a limited number of occasions between 1985 and 2002, the City asked
14 Stamp on an as-requested basis to provide legal assistance on specific matters with a
15 defined scope .. Stamp was hired directly by City Administrators Douglas J. Schmitz
16 (1983-1993) and Jere A. Kersnar (1993-2000), or by personnel officers Jerry Pullen
17 (1984-1998) and Jane Miller (1999-2008). Stamp did not provide day-to-day personnel
18 representation. The confidential information he obtained during that time was limited,
19 and none of it is materially related to Miller's claims. (Schmitz 11112-9; Kersnar 11112-8;
20 Pullen11112-9; Miller11115-11,19; Stamp11116, 13,20-21, 24.)
21 From 1985 to 1992, City Administrator Schmitz occasionally asked Stamp to
22 provide advice on "legal issues relating to personnel issues or employment law."
23 (Schmitz 114). From time to time, Schmitz asked for "information about prevailing law or
24 concepts of law applicable to employment law subjects." Schmitz does not recall
25 providing any confidential information to Stamp, "other than such information as the
26 name or job performance factors of a specific employee." (Schmitz 11114-5.) Attorneys
27 other than Stamp handled the City's regular employment and personnel services.
28 (Schmitz 116; Pullen 1f4.) The Personnel Officer from 1984 to 1998, Jerry Pullen,
MIUERV. CITY OF CARMEL-BY-THE-SEA
f"'11.cr::: J\.ln
4
0PP()<:<mrlN TO MnTlON TO DISQUALIFY PLAINTIFF'S COUNSEL
0084
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1 worked with Stamp on a layoff policy in "an open and public process." Stamp's
2 assignment did not involve confidential information. (Pullen 11 5)
3 After Schmitz left in 1992, Jere A. Kersnar became City Administrator in 1993.
4 In approximately 1998 or 1999, Kersnar retained Stamp for an employee disciplinary
5 action. Kersnar has no recollection of providing Stamp "with any confidential
6 information relating to City policies, practices, actions, or anything else." (Kersnar 1J3.)
7 Kersnar was the City's chief decision-maker on personnel issues. (/d., 116.) Kersnar
8 does not believe that Stamp was provided with any confidential information that has any
9 material relationship to anything raised in the present case, "including any information
10 that would relate in any way to the prosecution of the Miller case." (/d.,111J3, 8.)
11 Schmitz (119), Kersnar (1!8), and Pullen (119) testify that the City matters in which
12 Stamp was involved had no material relationship to the claims of Jane Miller, or would
13 place the City at a disadvantage in the Miller case.
14 In 2001, the City's Human Resources Manager, Jane Miller, asked Stamp for
15 legal advice on a disciplinary matter and workers' compensation claim involving a lower
16 level employee. Stamp worked briefly on that matter. It does not have any substantial
17 relationship to Miller's claims. (Miller 118-11; Stamp 1126.)
18 In early 2002, Stamp advised the City that he was not available to represent the
19 City in the future. (Stamp 1128.) The City's personnel lawyers continued to provide
20 legal services to the City, as they have done for many years. (Miller 116. Schmitz 1J6.)
21 B. Stamp's Representation of Employees' Claims Against the City.
22 In 2003, Stamp was retained by two senior City employees who made serious
23 employment discrimination claims against the City and City Administrator Guillen,
24 including claims of hostile work environment and forced retirement. The first
25 employee's claims directly implicated Guillen's alleged favoritism toward the employee
26 identified in Ms. Miller's Complaint as Female A Stamp vigorously advocated for his
27 clients. Stamp and Guillen (who worked with the City Attorney) negotiated by
28 telephone. email, and personal meetings. Guillen did not object to Stamp's
Mlu.ER V. CITY OF CARMEL-BY-THE-SEA
f"ACC Mr. U 0 0 l ; 1 ~
5
()PPOSITinN Tn MnTinN Tn DISOUAUFY PLAINTIFF'S COUNSEL
0085
0
0
1 representation of the two employees, or raise any claim of conflict The City did not
2 raise a claim of conflict. The matters were resolved, the City paid additional
3 compensation, and the employees left the City. (Stamp 1[1[31-41.)
4 In 2006, Stamp represented a third senior City employee who made serious
5 employment discrimination claims against the City and Guillen, including allegations of
6 hostile work environment. forced retirement, and Guillen's favoritism toward Female A
7 Again, Stamp vigorously pursued the claims and negotiated directly with Guillen, who
8 kept the Mayor, City Council, and City Attorney advised. Again, the City did not object
9 to Stamp's representation of the employee or allege a conflict. The matter was
10 resolved, and the employee retired. The City Attorney signed off on the settlement
11 agreement on behalf of the City. (Stamp 1l1!42-46.)
12 In 2008, Stamp represented a fourth employee who made discrimination claims
13 against the City and Guillen, again including claims of hostile work environment and
14 forced retirement Stamp vigorously pursued the claims and negotiated directly with
15 Guillen, who involved the City Council, Mayor, and City Attorney. The City did not
16 object or allege a conflict. The matter was resolved, the City Attorney approved the
17 settlement, and the employee retired. (Stamp 111147-49.) The negotiated
18 compensation awarded in the four settlements exceeded $500,000. (Stamp 1[52.)
Representation of Jane Miller. 19 C.
20 In 2008, Stamp began representing a fifth employee, Human Resources
21 Manager Jane Miller, in her discrimination claims against the City and Guillen. In May
22 2008, Stamp wrote to the City and raised the claims directly with the Mayor, City
23 Council, City Administrator and City Attorney. Again, the claims were serious and
24 Stamp's representation was aggressive. On behalf of Miller, Stamp filed a claim with
25 the City in May 2008, and provided the City the right-to-sue letters issued by DFEH in
26 July 2008. The City Administrator and City Attorney recognized Stamp's role as Miller's
27 litigation counsel if the case did not settle. The City's outside counsel recognized the
28 serious nature of the claims and, starting in May 2008, billed over $33,000 for pre-
C:ASF N() M!l9fi1:'l
6
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1 litigation services. The City Attorney encouraged direct discussions between the City's
2 counsel and Stamp about the merits of Miller's case. No objection or claim of conflict
3 was raised by the City or its counsel. (Stamp 1111 53-69.)
4 On June 17, 2009, Stamp filed the present action. The suit alleges that Miller
5 suffered sex-based discrimination, age-based discrimination, sexual harassment and
6 retaliation. Between June 29, and August 26, the parties engaged in extensive
7 discovery, including the first of many anticipated depositions. At no time did any City
8 representative allege a conflict. (Stamp 1111 70-77; Miller 1f17.)
9 On September 2, 2009, Stamp received the City's motion to disqualify him as
10 plaintiffs counsel. The City had not advised him of a claimed conflict. By that time,
11 Miller had spent thousands of dollars in legal fees, Stamp had spent more than 200
12 hours investigating, analyzing and prosecuting Miller's claims, and his staff had spent
13 over 240 hours. Miller had devoted a great deal of time to meeting with her counsel,
14 attempting to negotiate a resolution, working with her counsel on factual and legal
15 claims and on discovery responses. (Stamp 111179-85; Miller 1118.)
16 ARGUMENT
17 I.
DISQUALIFICATION IN A SUCCESSIVE REPRESENTATION SITUATION IS
18 WARRANTED ONLY WHEN A FORMER CLIENT'S CONFIDENCES MAY BE USED
IN THE CURRENT REPRESENTATION AGAINST THE FORMER CLIENT.
19 AS A MATTER OF LAW, THE CITY HAS FAILED TO ESTABLISH AN ADEQUATE
20
21
22
FACTUAL BASIS FOR DISQUALIFYING MS. MILLER'S COUNSEL
A. Motions to Disqualify Are Equitable in Nature.
Disqualification motions are equitable in nature. (River West, Inc. v. Nickel
(1987) 188 Cai.App.3d 1297, 1304, 1309; Weil & Brown, Cal. Practice Guide: Civil
23
Proc. Before Trial (Rutter Group 2009) 9:406.9 to 9.406.10, p. 9(1)-148.) The Courts'
24
task is to exercise its equitable powers and decide such motions in order to achieve
25
"substantial justice" (Santa Teresa Citizen Action Group v. City of San Jose, supra, 114
26
27
28
Cai.App.4th at p. 711) under the specific facts and circumstances presented.
MillER V. CiTY OF CARMEl-BY-THE-SEA
r.A.<<' No M!<>l!i1 ::\
7
OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFF'S COUNSEl
0087
0 0
1 B. The City Failed to Meet Its Burden for Disqualification as a Matter of Law.
2 Disqualification claims in "successive representation" situations are based upon
3 rule 3-31 O(E) of the California Rules of Professional Conduct. Courts follow the
4 well-established rule that an attorney may not be disqualified for taking a position
5 adverse to a former client unless there is a "substantial relationship" between the facts
6 and legal issues of the prior representation and the current representation such that it is
7 likely that the attorney acquired confidential information in the former representation
8 that could be used to the disadvantage of the former client in the current matter. (Sharp
9 v. Next Entertainment, supra, 163 Cai.App.4th 410, 426.)
10 In a motion for disqualification, there is a heavy burden on the moving party to
11 demonstrate the material relationship of any confidential information to the current
12 proceeding. (Faughn v. Perez, supra, 145 Cai.App.4th at 604-506.) The City's motion
13 does not establish that any of the very limited confidential information obtained by
14 Stamp in his work for the City years ago is materially or substantially related to Miller's
15 present case. The City presented no first-hand knowledge or admissible evidence on
16 the context or scope of assignments given to Stamp. In contrast, all five of the persons
17 most knowledgeable about the past representation (Schmitz, Kersnar, Pullen, Miller,
18 and Stamp) have testified in declarations that there is no significant relationship to the
19 Miller case. 9; Kersnar 1)8; Pullen 1)9; Miller 1)19; Stamp 1)84.)
20 The issue of materiality is best illustrated by Faughn v. Perez, supra, 145
21 Cai.App.4th 592. There, an attorney defended five tort actions against hospitals and
22 arising from serious birth-related injuries. (/d., at 597-600.) The attorney worked
23 closely with claims counsel of the hospitals' parent company, and was involved in
24 mediations, settlement conferences, and evaluating the cases. Less than a year after
25 the fifth case settled, the attorney joined plaintiff's counsel in a negligence action arising
26 from birth-related injuries at a hospital owned by the parent company. The attorney
27 was now on the other side of his former client, the parent company. The trial court
28 granted the parent company's motion to disqualify the attorney. (/d., at 600.)
Nn M99513
8
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0
1 The Court of Appeal reversed, holding that the motion to disqualify relied too
2 heavily on vague allegations and inferences about facts that were within the control of
3 the moving party. By omitting important facts, the moving party failed to carry its
4 burden. (/d., at 596.) The omitted facts were fundamental to establishing a material
5 relationship between the cases.
6 In Faughn, the Court of Appeal carefully examined each of the allegations and
7 the supporting evidence proffered by the moving party. The Court then held that the
8 moving party's allegations - about the decision makers involved in the representations,
9 the alleged relationship of claims policies and practices, and the alleged relationship of
10 the birth injury issues- were not supported by adequate specificity or evidence. (ld., at
11 605-610.) In other words, even where the past representation is in the same specific
12 area as the new representation -e.g., personal injury litigation arising from hospital
13 birth-related injuries- the Courts do not assume material similarity. The burden is on
14 the moving party to prove that confidential information from the past representation
15 would actually be used against the moving party in the current representation.
16 The holding in Faughn v. Perez is fully consistent with several other cases.
17 "Speculative contentions of conflict of interest cannot justify disqualification of counsel."
18 (Oaks Management Corp. v. Sup. Ct., supra, 145 Cai.App.4th 453, 471.) "A motion to
19 disqualify will not be granted when only a hypothetical conflict exists." (Fox Searchlight
20 Pictures, Inc. v. Paladino (2001) 89 Cai.App.4th 294, 302.) "Specific facts must point to
21 a marked danger that the perceived evil ... will result" (Gregori v. Bank of America
22 (1989) 207 Cai.App.3d 291, 308.)
23 Conspicuously absent from the City's moving papers here are specific detailed
24 facts establishing that Stamp was privy to any substantial confidential information that is
25 material to Jane Miller's litigation. The Burch declaration, which provides the primary
26 evidentiary basis for the City's motion, is insubstantial and inadmissible. (Miller has
27 filed separate evidentiary objections.) The showing is insufficient to carry the City's
28 burden for a disqualification motion under Faughn v. Perez, supra. The City's paltry
r l \ ~ r : : : Mr. M0:0&\1'1
9
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1 showing falls far short of Faughn's requirements.
2 Separately, the bare conclusions submitted by the City are outweighed by the
3 direct evidence presented by the declarations of Schmitz, Kersnar, Pullen, Miller and
4 Stamp. The five persons with direct knowledge of the facts and circumstances have all
5 testified by declaration under oath and all five contradict the inferences the City seeks
6 to draw from Burch's conclusory declaration.
7 Because the evidence on the City's motion does not establish a likelihood that
8 the current client can use the former client's confidential information to the
9 disadvantage of the former client, disqualification would serve no useful purpose and
10 Ms. Miller's right to counsel of her choice must prevail. "Because the evidence does
11 not establish any likelihood that [plaintiff] can use [the confidential information] to his
12 disadvantage, disqualification would serve no useful purpose and [plaintiff]'s right to trial
13 counsel of its choice must prevail." (Oaks Management Corp. v. Sup. Ct., supra, 145
14 Cai.App.4th 453, 471 [reversing the trial court's disqualification order].)
15 C.
16
The "Substantial Relationship" Test and the Public Sector.
In a Rule 3-310(E) claim arising in the private sector involving private parties, the
17 Courts apply the "substantial relationship" test to compare the prior representation with
18 the current representation. The test requires the Court to analyze three factors:
19 (a) factual similarity; (b) legal similarity; and (c) the nature and extent of the attorney's
20 involvement with the cases, including the attorney's exposure to formulation of policy or
21 strategy. (Rosenfeld Construction Co. (1991) 235 Cai.App.3d 566, 576, citing H. F.
22 Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cai.App.3d 1445.)
23 In applying.these factors, the court is required to consider issues of
24 confidentiality, which differ greatly between the public and private sectors. California
25 law affords very limited confidentiality to public entities. Public meetings, finances, and
26 records are open to the public. The identities, backgrounds, and philosophies of the
27 decision makers are all public. The personnel rules and policies are public documents.
28 All claims and litigation records are public. City procedures for employment
MIW:R V. CITY OF CARMEL-BY-THE-SEA
f">AC'C .... ,...
10
MEMORANDUM OF POII.fTS AND AUTHORmES IN
()pp(")(;ITJ()M Tn M(')TJf'IN Tn IFY P1 AINTJFFs CouNSEL
0090
0
0
1 discrimination and sexual harassment claims are public records, as are employee
2 contracts and, in large measure, public salaries. (See International Federation v.
3 Superior Court (2007) 42 Cal. 4th 319, 328-329.)
4 That Stamp occasionally counseled other earlier City Administrators years ago
5 with respect to occasional employment matters that may have arisen then does not
6 disqualify him from any particular case, without a more specific relationship, just as he
7 is not barred from invoking publicly published legislation adopted by the City for its
8 personnel ordinance because the City says he "proposed" changes to a draft ordinance
9 written by Personnel Officer Pullen in the 1980's. Merely working on the same type of
10 subject matter is not enough to show a "substantial relationship." Even where the two
11 representations involve the same general subject, disqualification is not required for that
12 reason alone. (Santa Teresa Citizen Action Group v. City of San Jose, supra, 114
13 Cai.App.4th 689, 711; Faughn v. Perez, supra, 145 Cai.App.4th at 604-605.)
14 II.
MOTIONS TO DISQUALIFY ARE DISFAVORED BECAUSE
15 THEY ARE FREQUENTLY MISUSED AS LITIGATION STRATEGY AND
16
17
18
DEPRIVE THE CLIENT OF THE ATTORNEY OF HER CHOICE.
A. Motions to Disqualify Opposing Counsel are Disfavored.
The Supreme Court and the Courts of Appeal repeatedly caution the trial courts
about the misuse of disqualification motions as abusive litigation tactics, and motions to
19
disqualify opposing counsel are properly viewed with caution and skepticism. As the
20
21
22
23
24
25
26
27
28
Sixth District Court of Appeal held in Zador Corporation v. Kwan ( 1 995):
[D]isqualification usually imposes a substantial hardship on
the disqualified attorney's innocent client, who must bear the
monetary and other costs of finding a replacement. A client
deprived of the attorney of his choice suffers a particularly
heavy penalty where, as appears to be the case here, his
attorney is highly skilled in the relevant area of the law.
Additionally, as courts are increasingly aware, motions to disqualify
counsel often pose the very threat to the integrity of the judicial
process that they purport to prevent. Such motions can be
misused to harass opposing counsel, to delay the litigation or to
11
MILLERV. CiTY OF CARMEL-BY-THE-SEA MEMORANDUM OF POINTS AND AUTHORITIES IN
f'"!tN':' 1\1..-. kiOO.t::"f'l
0091
1
2
3
0
0
intimidate an adversary into accepting settlement on terms that
would not otherwise be acceptable. In short, it is widely understood
by judges that attorneys now commonly use disqualification
motions for purely strategic purposes ....
4
(31 CaLApp.4th 1285, 1302-1303, internal citations and quotation marks omitted.)
5
In Zador, supra, the disqualification motion was filed shortly after the litigation
6
commenced. However, the Court, in assessing the prejudice, focused on how long the
7
moving party knew that litigation was reasonably possible, and how long the moving
8
party knew the identity of the attorney prosecuting a claim against the former client. (31
9
Ca1App.4th at 1302.) The Court found that the possibility of litigation was evident
10
nearly three years before the motion to disqualify was filed. (Ibid.) The Sixth District
11
12
reversed the trial court's order disqualifying counsel. (/d. at pp. 1302-1303.)
Here, the City has known for six years of Stamp's representation of senior City
13
employees in their forced early retirement claims against the City and Guillen. Miller is
14
the fifth of those clients since 2003. An attorney will not be disqualified from
15
representing a party on the grounds that he formerly represented an adverse party, if
16
the former employment involved matters not in material or substantial conflict with the
17
present representation. (In re Charlisse C. (2008) 45 Cal.4th 145.) The key equitable
18
question is whether the moving party has established with detailed evidence that the
19
previous representation is substantially related to the present case, and therefore the
20
lawyer "wrongfully acquired an unfair advantage that undermines the integrity of the
21
judicial process and will have a continuing effect on the proceedings before the oourt."
22
(Oaks Management Corp. v. Sup. Ct., supra, 145 Cai.App.4th at 462-463.)
23
B. Ms. Miller Would Be Severely Prejudiced by Disgualification.
24
Jane Miller would be severely prejudiced in several ways if this motion were
25
granted. First, Ms. Miller would be deprived of highly skilled counsel whom she sought
26
out for his expertise in discrimination and forced retirement claims by public agency
27
officials. There are few equally skilled attorneys in this field in Monterey County, and
28
none who would be available. (Welsh 1111 3-9; 20; Stamp
12
MILLER V. CITY OF CARMEL-BY-THE-SEA MEMORANDUM OF POINTS AND AUTHORITIES IN
,......,....,.,.. ...... ......... ---- ......................... ._.,, n. ,, ,..._, .. --
0092
0
0
1 Second, Stamp has been working on this matter for over fifteen months,
2 providing advice, working with his client and other consultants and professionals,
3 developing the strategy for this case, and preparing the case for litigation. As a result of
4 more than 200 attorney hours and over 240 staff hours of work on this case, the case is
5 moving forward efficiently, and discovery is fully under way. (Stamp 1179.)
6 Interrogatories and inspection demands have been propounded and responded to by
7 both the City and Ms. Miller; the first deposition has been taken. (Stamp 1!1172-76.)
8 New counsel - if one could be obtained -would take many months to get up to speed.
9 Third, it is highly unlikely that other counsel in the area would take over the case
10 at this point. Miller would have to go to the Bay Area to find equally qualified counsel
11 who might be available, but only at a prohibitive financial and emotional cost. (Stamp
12 111186-87; Welsh 119.) It is likely that if Stamp is disqualified, Miller would not be able to
13 pursue her claims against the City. (Miller 111118-20; Welsh 111J5, 9; Stamp 1190.)
14 And what would be gained from disqualification? Allowing Stamp to continue
15 representing Jane Miller would not result in the use or disclosure of confidential
16 information. That has been confirmed by the declarations of the four City officials
17 (Schmitz, Kersnar, Pullen and Miller) who worked directly with Stamp in his past
18 representation of the City. Nor would it disadvantage the City. The only result that
19 would come from a disqualification would be to stop the prosecution of potentially valid
20 discrimination claims, either for many months or permanently.
21 In the event of disqualification, any new counsel would be able to access any
22 information that Miller has, which can be imparted to the new attorneys under the
23 attorney-client privilege. (Nealv. Health Net, Inc. (2002) 100 Cai.App.4th 831,844
24 [disqualification is ineffective remedy because it would not prevent the human
25 resources manager plaintiff from giving new counsel the information, which would leave
26 the adversary in the same position as before ... the purpose of a disqualification
27 motion must be prophylactic ... ").) Miller's knowledge gained from her position as the
28 human resources manager is far more material, comprehensive, and current than
13
MILLER V. CITY OF CARMEL-BY THE-SEA MEMORANDUM OF POINTS AND AUTHORITIES IN
,-..,....,....,... ......... , ........ , ......... a.t ........,...,,..,..,, 'T',., n .......... , '"' ,,......., o, .... ...,...,,.... ... ,...,. ,......,., ,.,..,.,..,
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1 anything the City thinks Stamp learned in his work for the City. If disqualification were
2 to be granted, Miller would lose her lawyer and her ability to proceed, the discrimination
3 case is seriously delayed or dismissed, and nothing confidential would be protected.
4 Such a result would cause the loss of substantial justice. and gain nothing.
5 Ill.
FROM 2003 TO SEPTEMBER 2009, STAMP REPRESENTED FIVE CITY
6 EMPLOYEES WHO MADE SERIOUS DISCRIMINATION CLAIMS AGAINST THE
7
8
CITY AND GUILLEN. THE CITY NEVER OBJECTED. THERE WAS NO CONFLICT.
If substantially related or material confidential information truly were at issue,
Guillen, the City's "day-to-day" personnel lawyers (Liebert Cassidy), or the City Attorney
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who has personally represented the City for more than 25 years would have raised it in
2003, 2004, 2006, or 2008, when Stamp represented the first four senior City
employees in their very serious employment claims against the City, or in 2008 when
Stamp presented Miller's claims to the Mayor, City Council and Guillen. No one
objected for six years while Stamp vigorously represented five employees with
important claims against the City. (Stamp 1!113, 77; Miller 111114-16.} The City's silence
from 2003 to September 2009 speaks bluntly to the lack of merit of the City's claim.
IV.
UNDER EQUITABLE PRINCIPLES, THE CITY IS BARRED
FROM ASSERTING ITS CLAIM.
Even if there were a substantial relationship between Stamp's past
representation of the City and Miller's case, which there is not, the City waived any
claim of disqualification due to its six-year delay in alleging a conflict and, separately, its
15 months of delay in regard to Miller's claims. Since 2003, the City willingly consented
to Stamp's representation of five similarly situated City employees in their discrimination
claims. Miller. the City's human resources manager while the first four cases were
negotiated, never heard any objection to Stamp's representation of the employees.
(Miller 111114-15}. Stamp and Miller reasonably relied upon the City's lack of objection
to Stamp's representation. The requirements for waiver and estoppel (good faith
reliance by Miller and Stamp} are satisfied. (River West, Inc. v. Nickel, supra, 188
Mn
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1 Cai.App.3d 1297, 1309 [even where substantial relationship shown, delay of almost
2 four years waives claim of conflict].)
3 Starting in May 2008, Miller invested her time, financial resources, and energy
4 into asserting claims with the attorney of her choice, knowing that the City had not
5 objected to Stamp's similar representation of employees. (Miller mi 17-18.) In July
6 2008, the City was provided with Miller's DFEH "right-to-sue" letters, precursors to
7 litigation. The City failed to timely assert its claim and is not entitled to equitable relief.
8 The disqualification motion also should be denied under the doctrine of unclean
9 hands and laches. Motions to disqualify counsel are often used as a litigation tactic to
10 "harass opposing counsel ... or to intimidate an adversary into accepting settlement on
11 terms that would not otherwise be acceptable." (Zador Corp. v. Kwan, supra, 31
12 Cai.App.4th 1285, 1303.) The City filed its motion to disrupt the prosecution of this
13 case, and to impose a greater financial obligation to Miller and her counsel. The City
14 did not undertake a reasoned inquiry of the issues, present first-hand knowledge of its
15 own former city administrators, or review the circumstances of the past six years of
16 forced retirement claims being made by Stamp's private clients. Under equitable
17 principles. the City is estopped from raising a claim of conflict now.
18 CONCLUSION
19 There is no conflict, and no basis for disqualification. The City has failed to meet
20 its burden and the overwhelming weight of the evidence establishes that disqualification
21 should be denied. Disqualification of Stamp would cause extreme harm to Ms. Miller,
22 and the remedy is not warranted. For the reasons stated above, and in the interests of
23 justice, Jane Miller respectfully requests that the motion for disqualification be denied.
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Dated: October 8, 2009
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COLINTY OF MONTEREY
JANE KINGSLEY MILLER, Case No. M99513
Plaintiff,
v.
PLAINTIFF'S EVIDENTIARY
OBJECTIONS TO DECLARATION OF
HEIDI BURCH AND UNSUPPORTED
FACTUAL CLAIMS IN THE
MEMORANDUM OF POINTS AND
AUTHORITIES FILED BY DEFENDANT
CITY OF CARMEL-BY-THE-SEA TO
DISQUALIFY PLAINTIFF'S COUNSEL
14 Defendants.
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Time: 8:45 a.m.

Plaintiff Jane Kingsley Miller submits the following evidentiary objections to
(1) the Declaration of Heidi Burch Supporting Motion by Defendant City of Carmel-by-
the-Sea to Disqualify Plaintiffs Counsel ("Burch Declaration"), dated August 26, 2009;
and (2) unsupported factual claims in the argument filed by the City (referred to by the
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City as the "Motion to Disqualify Plaintiffs Counsel").
EVIDENTIARY OBJECTIONS TO THE BURCH DECLARATION.
A. OBJECTIONS TO ALL OPINIONS AND CONCLUSIONS IN THE DECLARATION.
Plaintiff objects to each and every one of the opinions and conclusions stated in
the Burch Declaration.
MILLERV. Cr!YOF CARMEL-BY-THE-SEA
(";:liQt: Nn
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EVIDENTIARY OBJECTIONS TO DECLARATION OF HEIDI BURCH IN
Tn MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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1 1. Plaintiff objects on the grounds that Burch is not competent to provide the
2 opinions and conclusions stated in the Burch Declaration. Plaintiff Burch is the City
3 Clerk of Carmel, and has worked for the City only since 2005. She has not established
4 qualifications that would allow her to testify as an expert in interpreting, characterizing,
5 and professionally evaluating legal bills and unspecified other documents in order to
6 determine what services were provided, or in giving an opinion on any of those topics.
7 Ms. Burch does not describe any prior experience in working with public
8 agencies or in interpreting, characterizing, or professionally evaluating legal bills and
9 the other unspecified documents that she purports to base her opinions on. She states
10 no knowledge relative to the attorney services upon which she presents an opinion.
11 She states no knowledge about the persons or person who generated the underlying
12 documents, their business practices, or anything else about them. She does not
13 provide a foundation by which her qualifications and opinion may be evaluated.
14 2. Plaintiff separately objects to the lack of foundation for each statement in the
15 Burch Declaration. Burch does not identify the documents upon which she bases her
16 opinions and testimony, and her testimony on its face purports to edit and characterize
17 some undated bills and other unidentified and unspecified documents. As explained in
18 the Declaration of Michael W. Stamp filed concurrently with these Evidentiary
19 Objections, October 8, 2009, paragraph 12 and Exhibit A to the Stamp Declaration, the
20 City's position on this motion is that the City absolutely refuses to produce for inspection
21 or analysis any of the documents that are the foundation for Burch's opinion and
22 characterizations. There is no foundation, and the Burch Declaration must be stricken.
23 3. Plaintiff separately objects on hearsay grounds to all characterizations of the
24 documents by Ms. Burch. Ms. Burch's description of the documents as "regarding,"
25 "reflect," and "about" various topics is hearsay. She is asserting that she is using
26 unspecified and unidentified written, out of Court statements for the purpose of
27 establishing the truth of the matters asserted in her declaration. There is no applicable
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1 hearsay exception, including no exception for documents that the witness refuses to
2 identify or produce.
3 4. Plaintiff separately objects to all characterizations of the documents by Ms.
4 Burch on the separate evidentiary grounds that Burch's testimony about the contents of
5 the writings upon which she relies is not admissible under the secondary evidence rule
6 because the content is at issue, and oral testimony (declarations that seek to
7 characterize writings) is inadmissible to prove the content of the writing. Evidence Code
8 sections 1520-1523.
9 5. Plaintiff separately objects to the Burch characterizations and conclusions as
10 immaterial. Burch does not establish that the conclusions that she made are evidence
11 of a substantial or material relationship to the present action maintained by Jane Miller.
12 (Faughn v. Perez (2006) 145 Cai.App.4th 592, 604-605.)
13 6. Plaintiff separately objects to the Burch conclusory statements or opinions as
14 speculation, vague, and failing to disclose material information within the City's control,
15 and therefore not material. (Faughn v. Perez (2006) 145 Cai.App.4th 592, 596.)
16 7. Plaintiff separately objects to the Burch conclusory statements or opinions
17 due to the lack of competency of Burch to testify. Burch does not demonstrate any
18 personal knowledge of any material fact Her testimony is limited to her revising,
19 restating, or characterizing documents that she has refused to disclose.
20 8. Plaintiff separately objects to all characterizations of the documents by Ms.
21 Burch on the grounds that Evidence Code section 412 discourages the introduction of
22 unreliable secondary evidence (Burch's characterizations). (See Evidence Code
23 1521, Comment.)
24 Each of the eight objections above is made to the entirety of the Declaration.
25 Each of those eight objections also are asserted as to the following specific sections of
26 the Burch Declaration:
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MILLERV. CITY OF CARMELBY-THESEA
CASF No M99513
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1 B. OBJECTIONS TO SPECIFIC SECTIONS OF THE BURCH DECLARATION.
2 SPECIFIC OBJECTION NUMBER 1
3 Statement objected to: starting with "provided" and ending with "performance
4 evaluation." (Burch Declaration, page 2:4-13 (11 4).)
6 Statement objected to: starting with "provided" and ending with "description."
7 (Burch Declaration, page 2:10-16 (1]5).)
9 Statement objected to: starting with "provided" and ending with "employees."
10 (Burch Declaration, page 2:18-19 (1]6) .)
12 Statement objected to: starting with "provided" and ending with "other City
13 employees." (Burch Declaration, page 2:21-24 (1]7).)
15 Statement objected to: starting with "provided" and ending with "employees."
18 Statement objected to: starting with "provided" and ending with "complaints."
20 SEPARATE PORTION OF DECLARATION NUMBER. 7
21 Statement objected to: starting with "provided" and ending with matter." (Burch
22 Declaration, page 3:8-11 (1]10).)
23 SEPARATE PORTION OF DECLARATION NUMBER 8
24 Statement objected to: starting with "represented" and ending with "matter."
25 (Burch Declaration page 3:12-18 (1]11).)
27 Statements objected to: ... or any other form ... "and was planning to
28 represent Jane Miller" (Burch Declaration, page 3: 21 and 3: 25 (both in 1]12).)
4
MILLER V. CITY OF CARMELBYTHESEA EVIDENTIARY OBJECTIONS TO DECLARATION OF HEll)! BURCH IN
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EVIDENTIARY OBJECTION TO THE UNSUPPORTED
FACTUAL STATEMENTS IN THE CITY'S "MOTION"
At page 3, paragraph 5, lines 20 to 26 of the City's Motion, the City makes the
following statement of fact in the midst of the City's argument:
Upon learning of Plaintiffs allegations, the City hired an
outside investigator to investigate all of Plaintiffs claims.
Plaintiff refused to be interviewed as part of that
investigation, despite repeated urgings from the City and the
investigator. Nor did Plaintiff ever tell the City why she
refused to be interviewed. The outside investigator
interviewed 12 current and former City employees, including
the witnesses Plaintiff had identified in her complaints. The
investigator found that Plaintiffs allegations were
unsubstantiated, and Plaintiff was informed of the results of
the investigation. Plaintiff then filed this lawsuit.
The City cites no evidence in the record for its statements, and none exists for
14 the key facts stated there. Matters stated in the argument but not supported by verified
15 evidence cannot be presumed true, and are not admissible evidence. (Smith, Smith, &
16 Kring v. Superior Court (1997) 60 Cai.App.4th 573, 578.)
17 The most glaring of the City's unsupported misstatements is the claim that
18 Plaintiff did not "ever tell the City why she refused to be interviewed." (Motion, p. 3: 22-
19 23.) In fact, as shown by the Declaration of Michael W. Stamp filed concurrently with
20 this Evidentiary Objection, paragraph 65, and Exhibit J to the Declaration, Plaintiff
21 repeatedly asked the City for information about the City's conduct in and around the
22 investigation, asked for assurances of confidentiality and fairness, and received no
23 direct response from the City. The record is clear on that point.
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MILLERV. CiTYOFCARMELBYTHE-SEA EVIDENTIARY OBJECTIONS TO DECLARATION OF HEIDI BURCH IN
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There is no legitimate basis for the deliberately false statement of the City.
There is no evidentiary support for other portions of that paragraph (e.g., who was
interviewed and when), which need not be addressed here, because it is a fundamental
rule of civil procedure that the entire paragraph of unsupported and disputed factual
statements is not evidence, and must be disregarded.
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Telephone: (831) 373-1214
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COUNTY OF MONTEREY
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Plaintiff,
v.
Case No. M99513
Complaint Filed June 17, 2009
DECLARATION OF MICHAEL W. STAMP
IN SUPPORT OF OPPOSITION TO
CARMEL-BY-THE-SEA TO DISQUALIFY
PLAINTIFF'S COUNSEL
14 Defendants.
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Time: 8:45a.m.
I, Michael W. Stamp, declare as follows:
I have personal knowledge of each of the facts stated below, and the opinions
stated in this Declaration are based upon my knowledge, experience, skill, education
and training. I could testify competently to each of the statements contained in this
Declaration.
1.
24
I am an attorney licensed to practice law in the State of California. I
received my B.A. degree from the University of California (Berkeley) in December 1972,
25
receiving highest departmental honors. I received my J.D. degree from Boalt Hall
26
School of Law (now Berkeley Law) in May 1976. I was admitted to the California Bar in
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December 1976. I have been practicing law in Monterey County since 1981. I have
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CASE No. M99513
1
DECLARATION OF MICHAEL W. STAMP IN SUPPORT OF
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1 handled cases in Monterey, Santa Cruz, San Benito, Santa Clara, Alameda, Contra
2 Costa, and San Francisco Counties, and have represented clients in Federal District
3 Court and before numerous administrative agencies and commissions at the State and
4 local level. I have represented dozens of clients in several appellate courts, including
5 the First, Second, and Sixth District Courts of Appeal, the California Supreme Court,
6 and the Ninth Circuit Court of Appeals.
7 2. Over the past 28 years I have represented scores of private clients in the
8 public employment field. My employment litigation clients have included employees,
9 officers, and officials from public agencies throughout Monterey County. In addition, I
10 have represented many employees working in private industry. In the present case, I
11 represent Jane Miller in her action against the City of Carmel-by-the-Sea.
12 3. In 2003, 2006, and 2008, I represented four other senior City of Carmel-
13 by-the-Sea employees in claims similar to those advanced in this case on behalf of Ms.
14 Miller. I negotiated those cases directly with the City. In those four cases, I raised
15 issues about the "early retirement" efforts by the City, raised issues of discrimination,
16 and asserted my clients' claims for compensation. In all four cases, agreements were
17 reached and the agreements were approved by the City Administrator, Mayor and City
18 Council. The third and fourth of those cases included written settlement agreements
19 approved by the City Attorney, Mayor, and City Council. The City agreed to pay more
20 than $500,000 in negotiated "early retirement" compensation to my clients in those four
21 matters. In none of those matters did the City raise any question of any kind about
22 disqualification, or allege any conflict, material or otherwise, with my representation.
23 4. I have represented Jane Miller in the present matter since May of 2008.
24 After more than 13 months of claims and communications with the City, including the
25 issuance of "right to sue" letters by the California Department of Fair Employment and
26 Housing, and communications with the City Attorney, the Mayor and City Council, and
27 the City's outside counsel, I filed the present action on June 17, 2009 on Ms. Miller's
28 behalf. Both sides then litigated the matter aggressively, exchanging discovery, taking
MILLER V. CITY OF CARMEL-BY THE-SEA
CASE No. M99513
2
DECLARATION OF MICHAEL W. STAMP IN SuPPORT OF
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1 one early deposition, and responding to special interrogatories, form interrogatories,
2 contention interrogatories, and requests for inspection of documents. My Office also
3 promulgated Public Records Act requests. From May 2008 to September 1, 2009, I
4 spent more than 200 attorney hours and more than 240 staff hours on the
5 representation of Jane Miller, in addition to thousands of additional dollars on
6 consultants and other professionals. At no point had the City raised any question of
7 any kind about disqualification or any conflict, material or otherwise, with my
8 representation of Jane Miller.
9 5. On September 2, 2009, I received in the mail the present Motion by City of
10 Carmel-by-the-Sea to Disqualify Plaintiff's Counsel. It was the first notice I received
11 from anyone that the City was asserting that there was a conflict in my representation of
12 anyone.
13 prior Representation of the Citv of Carmel-by-the-Sea.
14 6. The City's disqualification motion addresses parts of the period from 1985
15 to 2002. During all of that time, Donald G. Freeman was the City Attorney of the City,
16 and he continues to serve as City Attorney. My legal work for the City was on an as-
17 requested project-by-project basis. I permanently severed my professional relationship
18 with the City in the first half of 2002, advising the City that I would not be available for
19 work.
20 7. At all times, City Attorney Donald G. Freeman was responsible for
21 approving my work product for the City. The City was but one of hundreds of clients I
22 represented during the 1985 to 2002 time period. My usual workload since 1985 has
23 been 40 to 70 matters at a given time.
24 8. On relatively rare instances, I worked with the City's staff in consultation
25 on a few individual personnel matters at the staff level. Other legal counsel, including
26 the City Attorney and his Office, Rick Harray and other attorneys at Kennedy Archer &
27 Harray (as the firm is now known), and Liebert Cassidy Whitmore (as that firm is now
28 known), have provided legal services to the City on personnel matters at various times
CASE No. M99513
3
OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFF'S CoUNSEL
0104
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1 in the past 20 years, as well. My recollection is that in the 1980's and 1990's, Liebert
2 Cassidy was on a regular retainer basis with the City, with specialized services relating
3 to personnel matters. The City paid a flat fee to Liebert Cassidy and received updates,
4 information, and regular training in personnel matters from that firm. In addition, the
5 City was allowed to make phone inquiries with Liebert Cassidy, and could retain the firm
6 on personnel issues at any time on an hourly rate.
7 9. I do not have any recollection or record of representing the City in any
8 hearing, trial, or administrative proceeding involving an employment issue.
9 10. Any ordinance that I reviewed or worked on for the City was in draft form,
1 0 and was then reviewed and approved or amended or rejected by the City Attorney, City
11 Administrator, and/or the City Council, among others. The City Council's actions on
12 ordinances and policies are made in public session, and are supported by staff
13 recommendations, staff reports, and, in some cases, findings and public statements by
14 the elected officials. Ordinances and policies are public records of the City, and all
15 supporting information regarding the adoption of such documents are public records
16 available to the general public.
17 11. I do not have any files or written materials from my work for the City. In
18 accordance with my longstanding office practice, after the passage of a certain number
19 of years after the closure of the matter, the files were destroyed. Here, the last file was
20 destroyed in approximately 2007, four years after I started representing City
21 management employees in regard to the City's actions against them.
22 12. I do not know what records were looked at by Heidi Burch in regard to her
23 declaration on the disqualification motion. She does not identify them in her
24 declaration. I have asked the City for those underlying records. On September 16,
25 2009, the City's attorneys in this litigation unequivocally refused to provide any of the
26 underlying records to me. (Exhibit A to this Declaration ["Exhibit"].)
27 13. I was not a general personnel legal adviser for the City. Under City
28 Administrator Douglas J. Schmitz, City Administrator Jere Kersnar, and personnel
MILLER V. CiT\' OF CARMEL-BY-THE-SEA
CASE No. M99513
4
OPPOSITION TO MOTION TO DISQUALIFY PI AINTIFF'S r.n11NSI"I
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1 officer Jeny Pullen, staff acted with a great deal of independence, had access to Liebert
2 Cassidy and/or other counsel, along with the City Attorney, and called me on personnel
3 matters only on an occasional basis. The majority of discussions I had with City
4 Administrators Schmitz and Kersnar were of general statements of the law, of the same
5 type they would receive at a League of California Cities conference or similar seminar,
6 or could find in one of the Liebert Cassidy general training sessions or briefing papers,
7 or were specific to individual employees not involved in the Jane Miller matter.
8 14. To the best of my knowledge, I have never met or talked with Heidi Burch.
9 According to her declaration, Ms. Burch did not come to Carmel until 2005. She has no
10 personal knowledge about any tasks that I undertook for the City.
11 15. In paragraphs 4 through 9 of her declaration, Heidi Burch refers to
12 unspecified "documents" that "reflect" general categories of legal services provided by
13 meattimesfrom 1985and 1991.
14 16. At paragraph 4 of her declaration, Ms. Burch states that she "reviewed
15 City documents reflecting that in 1985" I provided legal advice about a then-proposed
16 personnel ordinance. To the best of my knowledge, I did not draft a personnel
17 ordinance in 1985. According to the City's website, a personnel ordinance was adopted
18 in 1987, so the 1985 "then-proposed" personnel ordinance referred to by Ms. Burch
19 would appear to be something that was not adopted.
20 17. According to the Declaration of Jerry Pullen (Pullen Decl.), filed as part of
21 the Opposition to the City's motion, in the 1980's or early 1990's, the City adopted a
22 personnel policy. The drafter of that policy was Mr. Pullen, the City's personnel officer.
23 (Pullen Decl., 1!7.) Mr. Pullen drafted the policy by starting with policies already on the
24 books for other public agencies, including policies adopted by members of a consortium
25 of public agencies that were served by Liebert Cassidy. (Pullen Decl., 1!7.)
26 18. The City's standard practice throughout the tenures of City Administrators
27 Douglas J. Schmitz (1983-1992) and Jere A Kersnar (1992-2000) was that any
28 ordinance would be reviewed by City Attorney Freeman in the normal course of
CASE No. M99513
5
OPPOSITION ro MonoN rn 01sotJAI IFV p, l'.nllhJcr:'
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business, and some policies would be reviewed by the City's outside personnel
counsel, including Liebert Cassidy Whitmore, on a periodic basis. Liebert Cassidy
provided regular training sessions to the City on personnel issues, reviewed the City's
policies and procedures at times and upon request, and distributed printed materials
and handbooks to the City on a periodic basis, and did so for years. According to
Public Records Act responses by the City and Liebert Cassidy in 2009, the training
materials and updates provided by Liebert Cassidy to the City are public records, which
means that they are readily available to the public. In addition, Liebert Cassidy
provides regular updates at the League of California Cities conferences attended by
many City officials and by the general public, many of which are available online at no
cost to anyone who wants them. Employment law has changed dramatically since
1985, when Ms. Burch states that I provided legal advice on a "then-proposed"
personnel ordinance. There have been very important and material changes in the law
in regard to age-based discrimination and gender-based discrimination, along with
changes and developments affecting the duties of employers, grievances, medical
leave statutes and policies, disciplinary proceedings, and performance evaluations,
among other components of any employer's personnel plan in California. Any
information communicated in 1985 about a "then-proposed" personnel ordinance would
be outdated and has no significant or material relationship to Jane Miller's claims in
20 2009 under current law.
22 City documents reflecting that" I provided advice in 1986 "about what tasks should be
23 included in a City employee's job description. The basic criteria affecting job
24 descriptions are not confidential, and they have been addressed in a large number of
25 reported cases over the past 30 years. Every human resources manager, including
26 Pullen and Miller during their years of service with the City, would expect to have some
27 familiarity with the legal requirements for job descriptions. Each job description is
28 different, and should accurately reflect the current duties of the position, as well as the
MILLERV. CiTY Of CARMEL-BYTHE-SEA
CASE No. M99513
6
DECLARATION Of MICHAEL W. STAMP IN SUPPORT OF
0107
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1 requirements of the law. I have no recollection of advising in regard to a particular job
2 description 23 years ago, either in regard to what job it might have been or what was
3 said to me. I do not know if Ms. Burch is referring to what should go in employees' job
4 descriptions or to some unnamed person's job description for an unspecified position
5 that may or may not still exist. The only job description issues raised in the present
6 case have to do with the plaintiffs job description and those of the two women,
7 including Heidi Burch, who allegedly recently received preferential treatment from
8 Richard Guillen, as described in the Complaint. Those actions took place 15 to 20
9 years after Ms. Burch claims that I gave advice on what should be in a job description
10 for a different position or positions with a different City administrator (who left the City
11 17 years ago). Nothing the City communicated to me in 1986 under City Administrator
12 Schmitz or Personnel Officer Pullen would be relevant to Ms. Miller's claims in 2009
13 against a City Administrator who was hired in 2000. There is nothing in the elements of
14 any 1980's job description that I would, could, or did use in evaluating, preparing for, or
15 providing any services on any claim by Jane Miller. According to the City's website, the
16 City's language in its personnel ordinance about job descriptions was adopted in 1996,
17 and is available to the public.
19 City documents reflecting that in 1986" I provided legal advice to then-City Administrator
20 Schmitz "about the parameters of at-will employment as it related to City employees."
21 At-will employment is a general topic of discussion, addressed in many cases in many
22 jurisdictions over many years, and frequently discussed in public agencies. I have no
23 recollection of advising in regard to "parameters" of an at-will notion 23 years ago. The
24 issues in the present case about at-will employees, if they become an issue, are not
25 materially related to anything I may have heard from City Administrator Schmitz 23
26 years ago. I do not recall being told that any City employee was at-will, or ever being
27 asked. The City's language about an at-will status in its personnel ordinance was
28 adopted in 1996, according to the website, and is available to the public.
CASE NO. M99513
7
OPPOSITION TO MOTION T() JAI WY Pl f':nl lMi;;;CI
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2 City documents reflecting that in 1987," I provided legal advice to Mr. Schmitz
3 "regarding an employer's regulation of personal relationships within the workplace,
4 including advice regarding the making of employment decisions about employees who
5 have personal relationships with other City employees." Such policies are
6 commonplace for public agencies, businesses, nonprofits and other employers and
7 organizations, copies are available on the internet and at seminars open to the public,
8 and have been discussed for years in newspapers, the internet, and elsewhere. The
9 laws regarding an employer's regulation of such matters have developed significantly
10 since 1987. Each such situation is different, and each involves legal principles that
11 depend upon the specifics of the situation. I have no recollection of advising in regard
12 to any policy regulating such conduct or about any particular "personal relationship" 22
13 years ago. The issues in the present case about such policies, if they become an
14 issue, are not materially related to anything I may have heard from Mr. Schmitz 22
15 years ago involving different City personnel and a different administration, and I do not
16 believe that I received any confidential information about that topic 22 years ago. If
17 there is such a policy for the City, it would be a public record available to any person
18 who requests it
20 City documents reflecting that in 1991 ," I provided legal advice to then-City
21 Administrator Schmitz "regarding the drafting of employment agreements between the
22 City and certain employees." Such agreements are specifically described as public
23 records under Government Code section 6254.8, and the agreements are available to
24 anyone who asks to see them, so there is nothing confidential about them. Each such
25 situation is different, and each involves legal principles and factual considerations that
26 depend upon the specifics of the situation. I have no recollection of advising in regard
27 to any particular agreement or any policy about such agreements 18 years ago, nor do I
28 have any information about whether the City had drafted any agreements at any time
CASE No. M99513
8
OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFF'S COUNSEl
0109
0
0
1 with any employee in 1991 or at any other time. I have no recollection or written
2 material related to anything at the City in regard to this issue. The issues in the present
3 case about such policies or agreements, if they become an issue, are not related to
4 anything I may have heard from Mr. Schmitz 18 years ago about "certain employees"
5 (as Ms. Burch describes them) that may have worked for the City or contemplated
6 coming to work at the City in 1991. To the best of my recollection, I know nothing about
7 any such agreements dating back to 1991, and I do not know of anyone still employed
8 by the City under any 1991 agreements. All confidential information I received from Mr.
9 Schmitz in 1991 regarding employment agreements would have been related to a
10 specific employee. None of the City employees at issue in Ms. Miller's case was
11 employed by the City in 1991.
13 City documents reflecting that in 1991," I provided legal advice to then-City
14 Administrator Schmitz "regarding the content of the City's policy prohibiting sexual
15 harassment." including proposing certain revisions and advice "regarding investigations
16 of sexual harassment complaints." Beginning in the late 1980's, many public agencies
17 became more aware of sexual harassment issues than they had been previously, due
18 in large part to well-publicized decisions by the Federal courts and State courts. In the
19 late 1980's I represented a female attorney fired by the County District Attorney, and
20 the case generated considerable interest in Monterey County, particularly among public
21 agencies and the media starting in approximately 1989 and carrying through for at least
22 a few years. In 1991, the issue of sexual harassment gained additional notoriety when,
23 at the national level, the Anita Hill and Justice Clarence Thomas issues were raised in
24 public hearings. I have no recollections about the City's policy from 1991, and no
25 recollection that I worked on it or was provided any confidential information about it.
26 never provided training to the City on such topics.
27 24. If the sexual harassment policy alluded to by Ms. Burch is an ordinance.
28 the City Council would have been required to hold two public hearings and provide a full
MILLERV. CITY OF CARMELBYTHESEA
CASE NO. M99513
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1 opportunity by the public to review and comment on it, and the policy would be one of
2 general application. Also, it would be reviewed by the City Attorney and outside
3 counsel, on a periodic basis. The way such a policy is applied, including the use and
4 manner of investigations, varies from City Administrator to City Administrator and
5 situation to situation, and Mr. Schmitz has not worked for the City for 17 years. After
6 Mr. Schmitz left the City in 1992, the City had an acting city administrator and then
7 hired another City Administrator, Jere Kersnar. No City personnel decision-maker from
8 1991 is still with the City. Since 1991, legal requirements for such policies have
9 changed significantly and materially. Separately, such policies are commonplace, are
10 available on the internet and at seminars, and have been discussed for years in
11 newspapers and elsewhere. The issues in the present case about the City's current
12 policy, if it becomes an issue, are not materially related to anything I may have heard
13 from Mr. Schmitz 18 years ago in regard to a 1991 policy.
15 City documents reflecting that in 1998 and 1 999," I "provided legal advice to the City
16 regarding disciplining and terminating a City employee and the matter included issues
17 related to medical leave." The issues in that matter were in regard to the job
18 performance of a specific worker who did not work at City Hall and did not report to the
19 City Administrator. The matter was handled by Mr. Pullen, and did not involve issues
20 similar to those raised by Ms. Miller. To the best of my recollection, that matter was
21 resolved some 10 years ago. The City Administrator at the time, Jere Kersnar, was the
22 decision-maker on disciplinary issues for the City. I learned nothing confidential in
23 regard to that matter other than the information necessary to resolve the specific
24 employee situation, such as the employee's name, job title, and any basis for discipline.
25 The issues in the 1998-1999 matter that "related to medical leave" according to Ms.
26 Burch did not involve any claim of the type made by Ms. Miller in this case, about how
27 Mr. Guillen singled out Ms. Miller for different treatment related to a. Family Medical
28 Leave Act request. I learned nothing in that 1998-1999 representation that is in any
CASE No. M99513
10
DEClARATION OF MICHAEL W. STAMP IN SUPPORT OF
0111
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1 way material to any issue in the present litigation, or which would assist me in any way
2 in the evaluation, prosecution, or handling of the Jane Miller case. The worker was not
3 a policy-maker or professional, and the personnel officer (Mr. Pullen) and the City
4 Administrator (Mr. Kersnar) left the City in 1998 and 2000, respectively. The
5 disciplinary action was not in any way similar to or related to any of the claims made in
6 this case by Jane Miller.
8 City documents reflecting that in 2001 and 2002," I provided legal services "in a matter
9 involving an employee accused of, among other things, inappropriate treatment of
10 female employees as well as issues related to medical leave." That personnel matter
11 was handled primarily by Jane Miller, then the City's personnel specialist, who was
12 coordinating disciplinary and workers' compensation issues involving an employee who
13 did not work at City Hall. The matter was resolved informally by the City, its workers'
14 compensation carrier, and its workers' compensation attorney. I represented the City.
15 The only confidential information I received was in regard to the specific employee and
16 the disciplinary issues. Ms. Miller is the person most familiar with the facts and issues
17 of that case, and she had more information about it than I did. The "confidential"
18 aspects of that matter involve the specifics of the employee's identity and the claims,
19 none of which is pertinent, relevant, or material to Jane Miller's claims. The issues in
20 the 2001-2002 matter that related to medical leave did not involve any claim of the type
21 made by Ms. Miller in this case. The disciplinary action was not in any way similar to or
22 related to any of the claims made in this case by Ms. Miller.
23 27. To the best of my recollection, the last Carmel-by-the-Sea City Council
24 meeting I attended was at least 15 years ago. I have no recollection of ever meeting or
25 talking with the current Mayor, who was elected nine years ago. I have never lived in or
26 had an office in Carmel, and have never attended City Council meetings on a regular
27 basis or been involved in Carmel's local politics.
28
CASE No. M99513
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1 End of Availability to Represent Carmel.
2 28. In approximately April of 2002, I advised the City that I would no longer be
3 available to be hired by the City on any projects. By that time, I had ceased
4 representing most public agencies in Monterey County for professional reasons relating
5 to staffing, law office economics, and personal choice ..
6 29. Since April 2002, the City has never sought to consult with me, retain me,
7 or seek advice or information from me. I have no City files, confidential City
8 information, or recollection of any confidential City information that would be of the
9 slightest use in representing Jane Miller, or which would relate in any way to any claim
10 at issue in this case.
11 30. I drafted the Complaint in this matter, and have worked extensively on this
12 case for more than 15 months, and not once have I relied upon, referenced, referred to,
13 sought out, or taken into consideration anything arising from or related in any way to
14 any work for the City or any information learned from my work on City-related
15 representation.
16
17
18
19
My Representation of Carmel Senior Employees Starting in 2003
In Claims Against the City without the City Claiming any Conflict.
Senior Management Employee #1.
31. In 2003, I was contacted by a top City senior management employee
("Employee #1"), in regard to issues that had arisen with the City. Employee #1 was a
20
21
22
long-term management employee, and the issues raised by him were serious. On
October 17, 2003, Employee #1 wrote to Mr. Guillen about concerns that Mr. Guillen
was isolating him at work, and that the employee "continually felt harassed in a hostile
23
work environment" caused by Mr. Guillen. The employee also described to Mr. Guillen
24
issues in regard to Mr. Guillen's role with a female employee who is identified in the
25
Complaint in the present case as "Female A."
26
27
32. On November 4, 2003, I contacted Mr. Guillen, advising him in writing that
"I have been retained by [Employee #1) about his continued employment with the City."
28
MILLER V. CiTY OF CARMEL BY-THE-SEA
CASE No. M99513
12
OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFFS COUNSFI
0113
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1 Soon after, Mr. Guillen responded and agreed to meet with me in Monterey at my Office
2 in order to discuss the claims. On November 7, 2003, in a Memorandum copied to the
3 City Attorney, Mr. Guillen responded to the October 17, 2003 email by Employee #1
4 about a "hostile work environment." City Attorney Freeman specifically authorized me
5 to meet directly with Mr. Guillen to try to negotiate the claims, which included claims of
6 forced early retirement.
7 33. Later in November, I met with Mr. Guillen. Mr. Guillen verbally
8 acknowledged that he understood that I was representing Employee #1 and that the
9 Employee #1 was making serious claims against the City. He stressed the significance
10 to the City of resolving the matter, how important the matter was, how the Mayor and
11 City Council were aware of the issues, and how the Mayor in particular had formed
12 strong opinions about it. I stated that my client had strong views about the City's
13 actions toward my client, and that claims could be raised about age and discrimination.
14 Mr. Guillen indicated that he understood my client's position and that he was disputing
15 the assertions.
16 34. Over the next several weeks, we negotiated the terms of an agreement
17 that would help resolve the disputed claims, which included claims for significant
18 amounts of compensation. Mr. Guillen advised me that he would be checking with the
19 City Council on compensation issues necessary for a settlement.
20 35. On December 15, 2003, Mr. Guillen told me that we had reached
21 agreement on the proposal for Employee #1. He told me that he had reviewed my offer
22 with the City Council, who had voted 5-0 to approve it, with one Council member
23 (Gerard Rose) who was most in favor of the negotiated deal. The settlement took effect
24 thereafter and my client left City service.
25 36. At no point did Mr. Guillen or the City Attorney advise me that my
26 representation of Employee #1 was a conflict, had any material or substantial
27 relationship to any prior representation of the City, or was in any way questionable or
28
MILLER V. CITY OF CARMELBYTHESEA
CASE NO. M99513
13
DECLARATION OF MICHAEL W. STAMP IN SUPPCRT OF
0114
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1 objectionable to the City. To the contrary, Mr. Guillen stated that my contribution to the
2 resolution of Employee #1's sensitive, important, and difficult claims was valuable.
3 Senior Management Employee #2.
4 37. Also in 2003, I began to represent another top City management
5 employee ("Employee #2"), in regard to his disputes with the City. Employee #2 had
6 worked for the City for many years. The City was considering the elimination of his
7 position, which would have forced him into retirement.
8 38. By mid-2003, the position of Employee #2 was a key issue to be resolved
9 by the City in regard to a proposed project that involved the expenditure of millions of
10 dollars. The City Council held public meetings on the issues, and the press covered the
11 issues in several stories.
12 39. In 2003, Employee #2 expressed concerns to the City that the City was
13 forcing him into early retirement in violation of law. In September 2003, Employee #2
14 advised the City Attorney that he was concerned about retaliation relating to his role in
15 reporting certain issues. Also in September 2003, Employee #2 wrote to Mr. Guillen
16 about the issue of Employee #2 being forced from his position.
17 40. I met with Mr. Guillen at my office, and discussed a full range of personnel
18 issues and compensation issues involving Employee #2, including claims that the City
19 and Mr. Guillen illegally were forcing my client from his employment. We continued to
20 discuss and negotiate the situation. We discussed certain similarities with the situation
21 involving Employee #1, who was approximately the same age as Employee #2, and
22 who had raised issues similar to Employee #2's issues. After I negotiated with the City,
23 the City eventually approved the terms of a negotiated severance agreement with
24 Employee #2 involving his retirement and significant compensation.
25 41. At no point did Mr. Guillen or anyone else indicate that there was any
26 conflict in my representing Employee #2 on his personnel issues, including his claims,
27 that there was any substantial relationship to any other matter that I had been involved
28 with, or that there was any objection to my representation of this employee on this high-
MILLERV. CITY OFCARMEL-BYTHE-SEA
f':A<::t: tJn l\AQQ&;1 ~
14
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1 visibility, important personnel matter. To the contrary, Mr. Guillen expressed his
2 appreciation for the fact that I worked on behalf of Employee #2 on this matter and that
3 the matter was resolved without litigation.
5 42. In 2006, I began to represent a third City senior management employee
6 (Employee #3). Employee #3 had raised issues with the City about treatment by the
7 City, and questions had arisen about whether Mr. Guillen and others were trying to
8 force Employee #3 into early retirement I contacted Mr. Guillen, and he and I met at
9 my office to discuss the case. We specifically discussed the fact that I had represented
10 Employee #1 and Employee #2 on claims that they were being forced out. that their
11 claims were eventually settled, and that Employee #3 was making similar claims. I
12 talked about equal treatment in the workplace for women, and I specifically mentioned
13 Guillen's perceived favoritism toward Female A as a serious issue that was creating
14 problems for the City's work force.
15 43. In September 2006, Mr. Guillen made a settlement proposal regarding
16 Employee #3, in which he offered terms that he called "very comparable" to the others I
17 had negotiated with the City (Employee #1 and Employee #2). Discussions and
18 negotiations continued over a period of time. Mr. Guillen advised me that he was
19 "authorized" by the City to negotiate directly with me as Employee #3's attorney, and
20 that he was in frequent contact with the City Council and Mayor on the issues raised by
21 Employee #3.
22 44. In response to Mr. Guillen's claims about "comparable" settlements with
23 Employee #1 and Employee #2, I pointed out to Mr. Guillen in writing that the situation
24 for my client "has been very difficult," and that she has "been concerned" about certain
25 issues, "including equal treatment as a woman manager for the City .... " I discussed
26 these matters directly with Mr. Guillen when we met at my Office. The compensation
27 issues dominated the negotiations.
28
MILlER V. CITY OF CARMEL-BY-THE-SEA
CASE No. M99513
15
DECLARATION OF MICHAEl W. STAMP IN SUPPORT OF
OPPOSITION TO MOTION TO IFY Pl AINTtf:(:';'C:: (":_n; IM<::J:"I
0116
0 0
1 45. In October 2006, an agreement was reached which required City Council
2 approval. I contacted City Attorney Freeman about the form of the agreement, and he
3 eventually signed off for the City on the agreement that I had prepared on behalf of
4 Employee #3 at the end of the negotiations. The City has recently released that
5 settlement to the media under a Public Records Act request.
7 conflict in my representing Employee #3 on her personnel issues, including her claims,
8 or that there was any material or substantial relationship to any other matter that I had
9 been involved with, or that Mr. Guillen or the City had any objection to my
10 representation of this employee on this high-visibility, important personnel matter. To
11 the contrary, Mr. Guillen expressed his appreciation to me for the fact that I was
12 working on behalf of Employee #3 on her matter, because it helped Mr. Guillen resolve
13 the claims.
15 47. In February 2008, I was retained by Employee #4, a City Hall employee
16 who worked in close proximity to Mr. Guillen. I advised Mr. Guillen by email of my
17 representation of Employee #4. Mr. Guillen responded and we set up a meeting, again
18 at my Office. We discussed Employee #4's claims, which included possible allegations
19 that she was being forced into early retirement illegally by Mr. Guillen and possible
20 claims of being isolated at work by design, and that the basis for the City's actions
21 included discrimination. We discussed the fact that Employee #4 was raising serious
22 issues. Mr. Guillen invited me to make a compensation proposal on behalf of my client.
23 48. In February and March 2008, I sent Mr. Guillen an outline of a retirement
24 and compensation proposal for my client. We had several further communications and
25 eventually my client and the City more or less reached an agreement, and the final
26 steps were approved in May 2008, when the City completed its City Council review and
27 the City Attorney approved the settlement agreement. The City has released that
28 agreement to the press as a public record.
16
DECLARATION OF MICHAEL W. STAMP IN SUPPORT OF MILLER v. CiTY OF CARMEL-BY-THE-SEA
CASE No. M99513
OPPO,SinnN Tn MnTinJ\1 Tn nJ"!f'\11111 1s::v o, 1\!I'>.!Tir.:r:'c- r"" ............. .
0117
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2 perceived conflict in my representing Employee #4 on her personnel issues, including
3 her claims of being forced from employment. At no point did Mr. Guillen or anyone else
4 indicate that there was any material or substantial relationship to any other matter that I
5 had been involved with other than the three other cases where I represented
6 Employees #1, #2, and #3. At no time did the City ever assert that the City had any
7 objection to my representation of this well-known and well-regarded longtime employee
8 on this high-visibility personnel matter. To the contrary, Mr. Guillen told me that my
9 representation of Employee #4 helped him to resolve this sensitive and difficult
1 0 situation.
11 The City Never Mentioned Any Claim of a Conflict in Regard to
12
13
14
15
16
My Representation of Any of the First Four Senior Management Employees.
50. Employees #1, #2, #3, and #4 all asserted issues relating to being forced
into early retirement by the City, specifically by Mr. Guillen. All four employees asserted
claims that are similar in some respects to the ones asserted by Jane Miller in this case,
and all four employees were approximately the same age as Jane Miller and were in
the protected class for age discrimination under State and Federal law.
17
18
51. In all four of these disputed matters, Mr. Guillen identified the issue to be
negotiated as the early retirement of the employees in order to avoid further action. In
19
20
21
all four cases, Mr. Guillen repeatedly assured me that the City Council and Mayor
considered the matters to be significant, and Mr. Guillen emphasized that the claims
were significantly higher than he wanted to pay on the claims, but that he considered
22
the expenditures to be necessary under the circumstances. He frequently assured me
23
in regard to each of the four clients that he was in frequent direct communications with
24
the Mayor and City Council about the status of the negotiations.
25
26
52. The four matters from 2003 to 2008 resulted in the City agreeing to pay
negotiated payments of more than $500,000 to the four employees. There was no
27
doubt that the City considered the four cases to be significant, both financially and
28
MillER V. CiTY OF CARMEL-BY-THE-SEA
CASF No. M9951::\
17
0118
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1 organizationally. My negotiations with the City in each case were candid, assertive, and
2 specific. In all four cases, Mr. Guillen advised me that the City Council had been fully
3 briefed on all issues, that the City Attorney had approved the settlements, and that the
4 issues, claims, and amounts had been carefully considered.
5
6
Jane Miller - the Fifth Senior Management Employee Since 2003
Represented by the Same Attorney against the City.
May 2008 to June 2009 Representation.
7 53. In May 2008, I was contacted by Jane Miller, who had been subjected to
8 conduct in the workplace that was in many respects similar to those encountered with
9 senior management Employees #1, #2, #3, and #4. I agreed to look into the matters,
10 as I had done with the first four employees.
11 54. On May 20, 2008, I wrote to the City on behalf of Ms. Miller. The letter
12 made it clear to the City that I was representing Ms. Miller, and that she was raising
13 claims of retaliation, gender-based discrimination and harassment, as well as age-
14 based discrimination arising from Mr. Guillen's actions. The letter referred in two places
15 to the similar claims of the other employees I had represented, and the letter asked the
16 City to preserve documents relating to those other cases. The letter made it clear that
17 Ms. Miller would be pursuing her rights under the Fair Employment and Housing Act.
18 (Exhibit B.) There was no doubt about the nature of Ms. Miller's claims against the City,
19 and that the claims were adverse to the City. Ms. Miller complained to the Mayor and
20 City Council about conduct, language, and adverse employment actions at City Hall,
21 asserting that Guillen engaged in inappropriate behavior, and he moved to eliminate
22 Miller's job when she lost personal favor with him. She presented claims that Guillen
23 had sent scores of emails to her, in which he called Miller "hottie" and "girlfriend,
24 described himself as her "secret admirer," and made numerous comments about his
25 fantasy life with Miller after their imaginary "retirement" from the City. She also
26 presented claims that Guillen had engaged in two inappropriate relationships with
27 female subordinates, and had rewarded those two women and punished others, such
28 as Miller, who complained or resisted.
CASE No. M99513
18
OPPOSITION TO MOTION TO 01:<:;.n1 JAI P1 .AIMTlce:'e
0119
0 0
1 55. The City responded in two ways. First, on May 22, 2008, the City
2 Attorney's Office wrote to me and advised that Mr. Freeman would respond when he
3 returned from a trip on June 2. (Exhibit C.) Second, Mr. Guillen wrote directly to
4 Ms. Miller at her house, with a copy to the Mayor, City Council, and City Attorney.
5 (Exhibit D.)
6 56. On May 22 and May 29, 2008, I responded to both of those letters,
7 emphasizing the need for prompt and effective action, and objecting to Mr. Guillen's
8 letter, asking that all contact be made through me, as Ms. Miller's attorney. (Exhibit E.)
9 57. On June 3, 2008, when I did not receive a response from the City, I made
10 a Public Records Act (PRA) request to the City for certain records that needed to be
11 preserved.
12 58. On June 13, 2008, I was first contacted by the law firm of Liebert Cassidy
13 Whitmore, who responded to the PRA request Over the next eleven months, Liebert
14 Cassidy and I exchanged approximately 40 letters and had some phone conversations
15 about Jane Miller's claims. I also had phone conversations with the City Attorney about
16 Ms. Miller's claims. There was never any doubt that I was representing Ms. Miller, that
17 she was making claims against the City, and that the matter was likely to lead to
18 litigation unless it was settled. I understood that Liebert Cassidy was taking an
19 aggressive position on behalf of the City. The letters to and from Liebert Cassidy made
20 it clear that Ms. Miller was pursuing her claims assertively against the City.
21 59. Some of the letters exchanged by Liebert Cassidy and me were copied to
22 the City Attorney. The City Attorney never responded in writing to the May 20, 2008,
23 letter, despite his promise to do so. He eventually told me by telephone that he was
24 letting Liebert Cassidy speak for him, and that he had ordered Liebert Cassidy to assign
25 a senior attorney to the matter.
26 60. On July 28, 2008, Ms. Miller filed two complaints with the Department of
27 Fair Employment and Housing in regard to this case. On July 30, 2008, I sent a letter to
28 the Mayor and City Council informing them that the DFEH complaints had been filed by
CASE No. M99513
19
OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFF'S CO<INSFI
0120
0 0
1 Ms. Miller against the City and the DFEH had issued right-to-sue letters to Ms. Miller.
2 attached the DFEH filings to the letter to the City. (Exhibit F.)
3 61. On October 17, 2008, I provided Liebert Cassidy and the City Attorney
4 with a letter summarizing the problems with the City's lack of action since May 20,
5 2008. (Exhibit G.) The letter explained that Ms. Miller would be providing a further
6 letter of information. The letter also requested that the City decide whether it would
7 meet to discuss the case before further legal action was taken. The City did not
8 respond. On October 23, 2008, Ms. Miller submitted a 13-page document to the City
9 further describing her claims. (Exhibit H.)
10 62. On November 6, 2008, I had a telephone conversation with City Attorney
11 Freeman concerning City Council discussions in regard to Jane Miller, particularly about
12 Mr. Freeman's question as to whether Ms. Miller had copies of emails to support her
13 allegations. I told Mr. Freeman that the quotes and references in the October 23, 2008
14 letter from Ms. Miller to the City were taken verbatim from emails and/or Instant
15 Messages sent by Richard Guillen. Mr. Freeman made a statement about the Mayor
16 and about Mr. Guillen's conduct, which highlighted the seriousness and significance of
17 Ms. Miller's claims.
18 63. On November 7, 2008, the City acknowledged receipt of my letters of
19 October 17 and 23 and referenced the City's "investigation" of the claims.
20 64. On December 11, 2008, I wrote directly to the City Attorney because I had
21 heard from the press that the press had been told that my client had filed a Government
22 Code claim against the City. I believed that there was a high likelihood that if there had
23 been a leak of information to the press, it would have come from someone at the City.
24 The letter includes another offer to discuss liability and settlement issues. (Exhibit 1.)
25 65. One of the issues that arose in my letters and discussions with Liebert
26 Cassidy was an "investigation" that Liebert Cassidy decided to undertake in August
27 2008, three months after Ms. Miller complained to the City, without informing Ms. Miller
28 of the investigation. On August 19, 2008, the "investigator," an attorney who apparently
MILLERV. CITY OF CARMEL-BYlliE-SEA
CASE No. M99513
20
OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFF's r.nt INS<'<
0121
0 0
1 was reporting directly to Liebert Cassidy, contacted me for information. Ms. Miller had
2 several concerns about the integrity of the investigation, the relationship to the lawyers
3 for the City, prior reported instances of investigations by the same person. and other
4 matters. On my client's behalf, I asked for more information and for assurances of
5 confidentiality. Those concerns were addressed in my letters dated August 28, 2008,
6 September 10, 2008 and September 30, 2008. The letters asked the City's lawyers to
7 provide further information. The information sought is detailed in the letters. (Exhibit J.)
8 I never received most of the information requested. Liebert Cassidy simply did not
9 address the questions.
10 66. In the City's Motion to Disqualify Plaintiff's Counsel, on page 3, lines 21 to
11 23, of the memorandum of points and authorities, the City states (without citation to any
12 evidence or declaration) that "Plaintiff refused to be interviewed as part of that
13 investigation, despite repeated urgings from the City and the investigator. Nor did
14 Plaintiff ever tell the City why she refused to be interviewed."
15 67. The quoted statements by the City's attorneys are false. The reasons that
16 Ms. Miller did not provide an interview for the "investigation" were made clear in the
17 correspondence: Liebert Cassidy would not answer the inquiries made by the Plaintiff
18 about the investigation, privacy, the scope, and the lack of independence of the
19 investigator. In addition, Ms. Miller provided a 13-page document providing details of
20 her claims, and suggesting that several identified persons be interviewed. The City did
21 not interview most of the persons identified by Ms. Miller. It also appears that the City
22 never obtained any of the emails sent by Mr. Guillen to Ms. Miller, and did not interview
23 former employees (or tell the investigator about them), including the four employees
24 that the City had settled with in regard to claims of forced "retirement." Even when I
25 advised the City that we could meet and informally go over the information that was
26 available to my client, the City chose not to do so. (Exhibit K.)
27 68. After its "investigation," the City concluded that only "sporadic" "non-work
28 related comments in communications" were made from Mr. Guillen to Ms. Miller. The
CASE No. M99513
21
OPPOSITION TO MOTION TO DISQUAliFY P1 AINTII'F's r . r . 1 1 N < : ~ 1
0122
0 0
1 error is startling. Ms. Miller received more than one hundred non-work-related emails-
2 not including instant messages and telephone calls -from Mr. Guillen over a period of
3 several years. I explained this information directly to the City Attorney on November 6,
4 2008, and he acknowledged that he believed that the emails existed and had been
5 quoted accurately. I do not know if the "investigator" interviewed the City Attorney.
6 69. In the 13 months from May 2008 to June 2009 where the City and I
7 discussed Jane Miller's case, made efforts to negotiate, and exchanged some
8 information, the representation of Ms. Miller on these matters was time-consuming for
9 both sides and involved significant expenditures of time. Ms. Miller paid me thousands
1 0 of dollars, and I spent very significant numbers of attorney hours and staff time on those
11 efforts. According to City check registers published on the City's website, the City spent
12 $51,259.90 during that 13-month time period on Liebert Cassidy's representation of the
13 City. Liebert Cassidy billed $33,931 specifically on the Miller matter from June 2008 to
14 April 2009, according to a public records response made by the City to the press.
15 June 2009 to September 2009 Representation of Jane Miller in Litigation.
16 70. On June 17, 2009, Plaintiff filed suit in this action, and immediately served
17 the City.
18 71. Since that date, the City has filed its Answer, asserting 21 affirmative
19 defenses. In response to a subsequent discovery request asking to state all facts upon
20 which the City based the affirmative defenses, the City stated that, as to 15 of its 21
21 affirmative defenses, it had "none at this time."
22 72. Plaintiff has propounded Employment Form Interrogatories, Sets One and
23 Two, and Inspection Demands, Sets One and Two. The City propounded Employment
24 Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production
25 of Documents, Set One. In addition, I took the deposition of a City employee, John
26 Hanson, who has since departed for a military assignment in Afghanistan. All of this
27 activity occurred before September 1, 2009, when the City mailed the present motion.
28
CASE No. M99513
22
OPPOSITION TO MOTlON Tfi Otsnt Pl rrn IMCt:f
0123
0 0
1 73. The following discovery responses took place before the City filed its
2 disqualification motion. The City has served responses to Jane Miller's Employment
3 Form Interrogatories, Sets One and Two, and Inspection Demands, Sets One and Two.
4 In its discovery responses, the City made repeated references to the need to have "an
5 appropriate protective order'' in place as a condition precedent to the City's production
6 of the records sought in discovery. On August 20, 2009, as soon as I reviewed that
7 response, I wrote to Liebert Cassidy and asked them to submit a proposed order that
8 met their needs. There was no response. I made additional, repeated requests on
9 August 26 and August 31, 2009. There was no response.
10 74. The City's August 24, 2009, discovery responses also stated that
11 documents will be produced at a later date - for example, that "the information to be
12 summarized is located in documents the City is producing pursuant to Plaintiff's
13 documents requests 55 and 56." On August 31, 2009, I asked for those documents.
14 The City did not produce them.
15 75. Instead, on September 1, 2009, the City mailed the present motion to my
16 Office without meeting, conferring, or discussing the matter.
17 76. Plaintiff has responded to the City's Employment Interrogatories, Set One,
18 Special Interrogatories, Set One, and Inspection Demand, Set One. Plaintiff is ready to
19 produce documents to the City once the City completes its production of records that
20 were due in August.
21 77. At no time since 2002, in any of the many letters, emails, faxes,
22 correspondence, pleadings, discovery, or telephone calls to me on behalf of five senior
23 management employees, did the City, the City Attorney, Liebert Cassidy or anyone else
24 ever mention any possible claim of conflict or any prior representation issue of any kind
25 until September 1, 2009. At no point before the motion was served on me did the City
26 ever ask me about the issue, seek any information from me, or raise it directly,
27 indirectly, or otherwise.
28 Events Leading Up to the City's Motion to Disqualify Counsel.
CASE NO. M99513
23
0124
0 0
1 78. In agreeing to represent Ms. Miller in this case, I had to make staffing
2 decisions, client decisions, financial decisions, and business operational decisions that
3 would allow me to represent my client in what promised to be a lengthy, demanding and
4 time-consuming matter. I have litigated cases with Liebert Cassidy before, on behalf of
5 a County employee, on behalf of several City of Seaside employees, and on behalf of a
6 City of Monterey employee. I anticipated an aggressive and fully-funded defense.
7 79. Between May 2008 and September 2009 when the present motion was
8 filed, a period of 15 months, I worked on this matter for a total of more than 200 hours.
9 In addition, my staff worked more than 240 hours in total. I consulted with experts,
10 reviewed thousands of pages of records, researched many issues, and worked on
11 discovery. I have spent more than 15 months putting together Ms. Miller's case,
12 working directly with her on many issues. Not once have I or my Office even made any
13 effort to recall, investigate, or consider in any way any information that came directly or
14 indirectly from the City prior to my representation of the five individual City employees
15 starting in 2003, because there is no relevant, substantial or material relationship
16 between any of my past work for the City and the claims made by the five top-level City
17 management employees from 2003 to the present No information from that long-past
18 representation is material to the five senior employees' claims, or could possibly be
19 used to disadvantage the City in Ms. Miller's case, or to give any assistance or
20 advantage to Ms. Miller, or to aid in the evaluation or prosecution of Ms. Miller's case.
21 80. I have worked in the public law field since 1976. I was a deputy city
22 Attorney in Oakland, special outside counsel to a few cities, and general counsel to the
23 Housing Authority board of commissioners for five years. I represented Oakland on
24 some employment cases in the 1970's, represented the Housing Authority on some
25 limited personnel matters in the early 1990's, have represented private employers and
26 employees for many years, and have represented approximately 100 public employees,
27 most of them County of Monterey employees, over the past 20 years. I have never
28 worked on the defense of any claim or litigation on behalf of a public agency on any
CASE NO. M99513
24
OPPOSITION TO MOTION TO DISQUALIFY Po A I N T I " " ' - ~ r.no '"''"''
0125
0 0
1 claim of gender discrimination or age discrimination in employment, or in regard to any
2 claim that any employee has been forced out or illegally pressured to retire early.
3 81. Where public representation is involved, different confidentiality factors
4 apply than in private representation matters. As public agencies, cities do business
5 differently than private parties do. With cities, the law requires extensive public
6 disclosure of the City's agendas, proposed action, action, budgets, minutes, and
7 documents. Personnel policies must be in writing and made public. Changes in work
8 conditions or terms of employment must be disclosed to bargaining units (unions) and
9 the employees before they take effect. Public employee contracts are public
10 documents. The Brown Act (Open Meeting Law) and the Public Records Act mean that
11 the public is entitled to know the reasons and support for public decisions, as well as
12 essentially every financial decision and transaction. City Council meetings are open to
13 the public, publicly recorded, and broadcast orwebcast. Very little of what a City does
14 is "confidential" in the way that private business is confidentiaL The organization of the
15 City, its policies, strategies, personnel, financial actions, and decision making are
16 public, and must be disclosed to the general public. The names, backgrounds, and
17 philosophies of public officials are made public in campaigns and at public meetings.
18 Essentially every step a city takes is a matter of public record available to every one
19 who asks.
20 82. In this case, the City's policy decisions are made by the Mayor and City
21 Council in public session with full transparency, with the advice of the City Attorney.
22 83. I have never discussed Jane Miller or her case with the Mayor, any of the
23 Council members, or with Richard Guillen.
24 84. The principal issues in the Miller case relate to Jane Miller's employment
25 with the City in the period from 2004 to 2009. There is nothing confidential in any of my
26 previous work for the City that would be of any material use, or would give me or my
27 client any advantage, or that would be germane. material, or relevant to this litigation or
28 to its evaluation, prosecution, settlement, or accomplishment.
~ - - - - ~ - - ~ - - - - - - - - ~ - - - - - - - - - 2 5
MILLERV. CITY OF CARMEL-BY-THE-SEA DECLARATION OF MICHAEL W. STAMP IN SUPPORT OF
OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL CASE No. M99513
0126
0 0
1
Preiudice to Jane Miller.
2 85. Jane Miller has paid me several thousands of dollars to date, and has
3 worked directly with me for many hours on this case. We have discussed strategy and
4 the law in considerable detail. She has confided very personal information. The issues
5 are important and personal for Ms. Miller. They affect the rest of her life- her health,
6 her retirement payments, her financial abilities, and her retirement itself.
7 86. I am not aware of any other Monterey County attorney who is available
8 and qualified to take over this case, due to its complexity, specialized subject matter,
9 and depth of legal issues. I consulted with Michelle Welsh, an employment lawyer in
10 Pacific Grove, because she is knowledgeable and experienced, and has handled more
11 employment cases over the years than anyone in the County. Her opinions about
12 obtaining qualified substitute counsel are as stated in her Declaration filed concurrently
13 with this Declaration.
14 87. In my opinion, based upon my education, training, and experience,
15 obtaining counsel from outside the Monterey area is highly improbable or even
16 impossible due to the steep and expensive learning curve, the travel costs, the need for
17 numerous depositions in Monterey County, the cost of getting up to speed and in
18 gaining the local knowledge necessary, and what would amount to a need to redo years
19 of legal work and effort. Similarly, I know of no qualified attorney in Monterey County
20 who would be able to take this case at this time.
21 88. The disqualification motion and its timing have prejudiced Jane Miller
22 materially and substantially. It has derailed the case for essentially two months, has
23 increased the expense significantly, and has delayed the proper and orderly preparation
24 of the claims raised by the Complaint.
25 89. The Declaration of Jane Miller dated October 7, 2009 further outlines the
26 harm and hardship that disqualification would cause to Ms. Miller.
27 90. Allowing me to continue representing Jane Miller would not result in the
28 use or disclosure of any confidential information of the City. The only benefit to the City
MILLER V. CITY OF CARMEL -BY-THE-SEA
CASE NO. M99513
26
OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFF'S
0127
l
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'
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0
0
1 that would come from a disqualification would be to stop the prosecution of potentially
2 valid discrimination claims and prevent any investigation of City administrators for
3 alleged abuses of employment policies and violations of discrimination statutes. That
4 result would be contrary to the strong public policy that claims involving public entities
5 and these types of issues should be resolved on their merits, instead of being avoided
6 through technicalities or tactical maneuvers.
7 91. l declare under penalty of perjury that the foregoing is true and correct
8 and that this Declaration is executed under penalty of perjury under the laws of the
9 State of California this 8th day of October, 2009 in Monterey, California.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MILLER V. CiTY OF CARMEL-BY-THE-SEA
CASE No. M99513
ewe
' = - ~
Michael W. Stamp
27
0ECLARA TION OF MICHAEL W. STAMP IN SUPPORT OF
OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFFS COUNSEL
0128
0 0
INDEX .
0129
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
0 0
INOEX OF EXHIBITS
EXHIBIT DESCRIPTION
A
B
c
D
E
F
G
H
J
K
September 16, 20091etter from Suzanne Solomon to Michael W. Stamp.
May 20, 20081etter from Michael W. Stamp to the Mayor and City
Council, City of Carmel-by-the-Sea.
May 22, 2008 letter from Leanne Graham, Assistant to Donald G.
Freeman to Michael W. Stamp.
May 23, 20081etter from Richard Guillen to Jane Miller.
May 22, 2008 letter from Michael W. Stamp to Leanne Graham, Assistant
to Donald G. Freeman, and May 29, 2008 letter from Michael W. Stamp
to Richard Guillen.
July 30, 3008 letter from Michael W. Stamp to Sue McCloud, Mayor of
City of Carmel-by-the-Sea with attachments: two July 28, 2008 DFEH
complaints and right-to-sue letters.
October 17, 2008 letter from Michael W. Stamp to Mayor Sue McCloud
and Members of the City Council, City of Carmel-by-the-Sea.
October 23, 2008 letter from Michael W. Stamp to Donald G. Freeman,
and October 23, 2008 letter from Jane Miller to Mayor and the City
CounciL
December 11, 2008 letter from Michael W. Stamp to Richard C. Bolanos.
August 28, 2008, September 10, 1008, and September 30, 2008 letters
from Michael W. Stamp to Michael J. DePaul.
January 12, 2009 letter from Michael W. Stamp to Richard C. Bolanos.
MILLER V CrrY OF CARMEL -BY-THE-SEA INDEX OF EVIDENCE IN SUPPORT OF
nFr.J ARATI()N ()t= W
0130
0 0
EXHIBIT A
0131
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VIA U.S. REGULAR MAIL
Michael W. Stamp, Esq.
Law Offices ofMichae! W. Sta.:np
479 Pacific Street, Suite I
Monterey, California 93940
September 16,2009
Re: Jane Kingsley Miller v. City of Carmel-by-the-Sea
Client-Matter: CA200-014
Dear Mr. Stamp:
l53TO'>'niSENDS'!"RfET. Sum 520
SAN Flf.oW:CISOO. CIJ.froiNlA 94107
Td41Sl 5123000 fd41Sl 856.0306
SSOI..OMON@LCWUGAL.COM
(41515123000
The docwnents referenced by Heidi Burch in her declaration supporting the motion to
disqualify are protected by the attorney-client privilege and therefore the City will not be
providing you with copies of them.
Sincerely,
SS!ab
I%239.1 CA200.014
www.kwlegai.com
0132
0 0

EXHIBIT B
0133
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Faosimile
(831) 373-0242
Confidential
0
Mayor and City Council
City Hall
Carmel-by-the-Sea, CA 93921
LAW OFFICES OF
MICHAEL W. STAMP
479 Pacific Street, Suite 1
May 20,2008
Re: Confidential Personnel Matter- Jane Miller
Dear Mayor and City Council:
0
Telephone
(831) 373-1214
I represent Jane Miller in regard to her employment with the City of Carmel-by-
the-Sea. Ms. Miller is the City's Human Resources Manager. She has nearly 24 years
of service to the public. She has worked for the City since 1999, when she was
appointed by City Administrator Jere Kersnar as the City's Personnel Specialist. Her
performance evaluations have been extremely positive over the years, and her devotion
to public service has been exemplary. There can be no doubt about Ms. Miller's
qualifications, skill, and expertise.
After years of compliments and praise, City Administrator Richard Guillen has
turned on Ms. Miller, and seeks to drive her from her career. Mr. Guillen's behavior and
comments towards Ms. Miller have isolated, embarrassed, and stigmatized Ms. Miller in
the workplace. After a sustained period of increasingly offensive conduct and
statements, Mr. Guillen now proposes to eliminate Ms. Miller's position with the City.
The actions by Mr. Guillen constitute retaliation, gender-based discrimination and
harassment, as well as age-based discrimination. In light of Mr. Guillen's history with
other employees and with Ms. Miller, along with his willingness to go outside the law
and City policies to get what he wants, Ms. Miller has no option except to advise you
directly of the illegal nature of this action and to institute enforcement procedures with
the California Department of Fair Employment and Housing. Although Ms. Miller and
other employees have been directed by Mr. Guillen that employees are not allowed to
contact the Mayor and City Council about City business, we are disregarding that
instruction as an illegal employment practice.
For the past several years, the Mayor and City Council have supported Mr.
Guillen without meaningful inquiry into his practices and without effective oversight. His
inappropriate relationships with female subordinates, his actions in classifying and
rewarding favored employees, his extravagance with public funds, his favoritism within
the work place, his inappropriate actions and statements, and his unchecked power
over the lives, salaries, and personal lives of City employees have been overlooked or
0134
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0
Confidential
May 20,2008
Page Two
0
unexamined by the Mayor and Council. Those actions have resulted in a hostile work
place and adverse and illegal employment actions that have directly and permanently
injured Ms. Miller.
We ask that the City take the following steps. First, Ms. Miller immediately
should be placed on non-disciplinary, paid administrative leave with full benefits.
Second, Mr. Guillen immediately should be removed from his role as supervisor of City
employees. Third, the City immediately should take action to preserve any emails and
instant messenger records of Mr. Guillen for the period since January 1, 2004 to the
present, including his emails to, from or about Ms. Miller and the other women under his
supervision or control during that time period, including those who have left City service
and those who are planning on leaving City service. He should be directed to preserve
emails from his personal accounts as well, including those relating to Ms. Miller.
Fourth, the Mayor and City Council immediately should unequivocally reject the
proposed elimination of the Human Resources Manager position.
In addition. the City should take immediate steps to preserve all records,
electronic and paper, regarding salary increases, salary adjustments, retroactive salary
adjustments, qualifications of employees (including Directors), hiring, classifications,
and other personnel actions relating to favorable treatment for any employees. This
includes the job descriptions, salary calculations, and retroactive pay authorized by the
City Administrator, and the documents relating to the employees who have left City
service over the past few years.
In addition, we ask that the City take immediate steps to preserve the calendars
and appointment records for Mr. Guillen, and for all female employees supervised by
Mr. Guillen at any time. We also ask that the City retrieve from Mr. Guillen all phone
records for his City-paid cellular phone, including the records that he arranged to have
sent directly to his home instead of to the City. If Mr. Guillen has destroyed those
records (which are public records), the City should immediately retrieve them from
Nextel, Verizon, or any other telephone carrier that holds records showing those
expenditures and calls. Separately, the hard drive for any computer used by Mr.
Guillen for City business should be secured by the City.
We also ask that the Mayor and City Council carefully and critically analyze the
financial impact to the City of eliminating the Human Resources Manager position held
by Ms. Miller. This includes collecting and assessing specific back-up details about the
costs, the exact specification of all assumptions about how the vital human resources
and risk management services would be provided, and the analysis by the City Attorney
and/or by the City's outside personnel attorneys about the wisdom and feasibility of
eliminating this vital position, particularly in light of the actual circumstances with the
0135
Confidential
May20, 2008
Page Three
0
0
City's personnel actions. Other remedial steps will be necessary; the list of actions
described in this letter is only a partial list of the actions which need to be taken.
me.
If you have any questions about this letter or about this matter, please contact

Michael W. Stamp
0136

0
0
EXHIBIT C
0137
THOMAS K" PERRY U904-!971)
DONALD G. FREEMAN
Michael W. SLamp
Attorney at Law
0
LAW OFFICES
Perry .mel freeman
SAN CARLOS BETWEEN 7.., ANO 8'"
POST OFFICE 60X 605
Carmel-by-the-Sea. California 93921
May 22, 2008
Monterey, CA 93940
Re: Confidential Personnel Matter
Dear Mike:
0
TLEPHONE
AREA COO 831
6Z4-5339
FAX i831l6245839
As you are probably aware Don is out of the country and will
not return until June 2 at which time he will prepare a response
LO your May 20, 2008, letter which was addressed to Mayor McCloud
and members of the City Council.
very truly,
I.eanne Graham
Assistant to Oonald G. Freeman
klg/
0138
0 0
EXHIBIT D
0139
0
May 23, 2008
1vLs. Jane Miller
910 19u' Street
Paoliic Grove, CA 93950
Door Ms. Miller:
CIT\' IIALL
1mx cr.
II.Wll
0
Bylett!!'rdatoo May 20; l!'lg!ll MiQI!l\<ll
dtlmands ooncM.ling youretnplo)'ihent.lviflt tnn'City. Mr. has been
rcft!ln:cd tp the City's legal co\msel for response.
M.r. Stamp's rquest that you be plpced on paid adtninlstralive
ilnnltld!ately, 1 see no reason to tak.e actiqu. lW.s time. Yo.ur employment sratus
romains and, ubsent a valid reason for taking lea'ole:titllc, you are. expected to
repor.t for a,od fully perfonn yl'ur duticsand. [o; llJe Cit).
NeMe feel li:ec to comacr me directly should ;you have any questicrns in llrls regard.
Si!.wel"llly,

Richard.duilleo
Oity AdmlniS!talor
Co.: MayoNmd Ci!y
City Attomey
0140
0 0
EXHIBIT E
0141
Facsimile
(831) 373-0242
By Fax Only
Leanne Graham
0
LAW OFFICES OF
MICHAEL W. STAMP
4 79 Pacific Street Suite 1
May 22,2008
Assistant to Donald G. Freeman
City Attorney, City of Carmel-by-the-Sea
Post Office Box 805
Carmel-by-the-Sea. CA 93921
Dear Leanne:
0
Telephone
(831) 373-1214
Thank you for your letter of today, advising me that Don Freeman is out of the
country, and that he "will prepare a response to my letter to the Mayor and City Council
after he returns in early June.
The letter delivered to the Mayor and City Council yesterday requested action,
including action that should be taken immediately. I wish to emphasize that Ms. Miller
does not consent to any delay.
Thank you for your continuing courtesy.
Michael W. Starn
0142
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Facsimile
(831) 373-0242
Richard Guillen
City Administrator
0
BoxCC
LAW OFFICES OF
MICHAEL W. STAMP
479 Pacinc Street. Suite 1
May29, 2008
Dear Mr. Guillen:
0
Telephone
(831) 3731214
Jane Miller has forwarded to me your letter of May 23, sent by you to her home.
Ms. Miller is represented by legal counsel, as you know, and you should respect that.
Any further contact by. you in regard to Ms. Miller should come directly to her legal
counsel, and not to her house. If you have any doubts about that, I urge you to contact
the City Attorney.
It is not just a matter of your trying to circumvent Ms. Miller's counsel. Ms. Miller
stated her concerns about your behavior. yet you ignored those concerns and directly
contacted her. There is no legitimate business reason for your contacting her
personally and directly at this time, in light of the complaint filed against you and the
City. Your conduct deviates from proper workplace procedures for the City.
Your letter also constitutes further harassment that does not belong in the
workplace. When you wrote, Ms. Miller was away from work for medical reasons. You
knew that, yet you insisted on writing to her at her home and ordering her to report to
work. You sent copies to the Mayor and City Council, showing that those elected
officials stood behind your behavior and tactics. Such conduct is illegal, retaliatory, and
designed to inflict further harm.
If you have any questions, please contact me directly.
cc: Mayor and City Council
City Attorney
0143
0 0
EXHIBIT F
0144
Facsimile
(831) 373-0242
Sue McCloud, Mayor
0
Post Office Box CC
LAW OFFICES OF
MICHAEL W. STAMP
July 30, 2008
0
Re: Department of Fair Employment and Housing
Jane Miller
Dear Mayor McCloud:
Telephone
(831) 373-1214
Enclosed are two complaints of discrimination and the corresponding notices of
case closure (right-to-sue letters) under the provisions of the California Fair
Employment and Housing Act. One complaint identifies the City of Catmel-by-the-Sea
as respondent; the second names Richard Guillen as such. They are being provided to
you in your capacity as Mayor of the City.
If you have any questions, please feel free to contact me. I am providing City
Attorney Donald G. Freeman with copies of this letter and its enclosures.
cc: Donald G. Freeman, City Attorney
0145
DEPARTMENT OF FAIR & HOUSING
2570 North First Street, Suite 480
(408) 325..0344
www.dfeh.ca.gov
,luly 28, 2008
RE: E200809G5010-00
MILLER/GUILLEN. RICHARD, AS AN INDIVIDUAL
NOTICE TO COMPLAINANT'S ATTORNEY
Enclosed is a copy of your client's complaint of discrimination filed with the Department of
Fair Employment and Housing (DFEH) pursuant to the California Fair Employment and
Housing Act. Government Code section 12900 et seq. Also enclosed is a copy of your
client's Notice of Case Closure, which constitutes your client's right-to-sue notice. Pursuant
to Government Code section 12962, DFEH will not serve these documents on the
employer.
Please refer to the enclosed Notice of Case Closure for information regarding filling a
private lawsuit in the State of California.
Sincerely,
Marlene Masseli
District Administrator
Enclosure: Complaint of Discrimination
Notice of Case Closure
(01108)
0146
()
COMPLAINT OF DISCRIMINATION UNDER
THE PROVlSIONS OF THE CALIFORNIA
FAIR EMPLOYMENT AND HOUSING ACT
DFEH#
E200809G5010-00

DFEH USE ONLY
CALIFORNIA DEPARTM!;NT OF FAIR EMPLOYMENT AND HOUSING
YOUR NAME undic"" Mr "'Ms.) TELEPHONE NUMBER {INCLUDE AREA COOE)
____ (831)809-2_43_7 __ . __ _
ADDRESS
910 19TH STREET
C!TYISTATEiliP COUNTY COUNTY CODE
PACIFIC GROV_E.:._,C_A,.:._9_3_95.:_0 ______________ _:.:;M..:::O.:..:N:.;.TER:.:..:.;E;.;Y _____________ 0_5-:-3 __ _
NAMEO IS THE EMPLOYER, PERSCX>i, LABOR ORGANIZATION, EMPlOYMENT AGENCY, APPRENTICESHIP COMMITTEE, OR STATE OR lOCAl GOVERNMENT AGENCY WHO
DISCRIMINATED AGAINST ME:
NAME
GUILLEN, RICHARD
ADDRESS
POBOXCC
CHYISTATEIZIP COUNTY
CARMEL BY THE SEA, CA 93921
NO OF EMPLOYEESMEMBERS fri known}
66
THE PARTICUlARS ARE
I allege that on Q7128/2008 ,
the following conduct occurred:
DATE MOST RECENT OR CONTINUING PIS CRIMINATION
TOOK PlACE (<11<l1Nh,day, and year}
07/28/2008
RESPCNDENT CODE
_ !oorlnation _ of
.. L lai.t off _ denial or fi(OfllOilofl
_demotion derua(oftransfer
-L harassment _ tJenial of acconmx1aCi:ln
TELEPHONE NUMBER (ln<:ludo- Code)
(831)620-2000
DFEH US ONLY
COONTYCOOE
_d-oflamijO<-Ieave
_denial of pregnarq fe.we
denie3i o( equal pay
_ ger.ek _L failure to preveatd'!SCr'rniaatioo telaiiatl.m
_ denial of right to we..-
oC pregl'llll'ltj acc()ll'lmQdaOOn
_ coostructire dis-charge (fQt'C.e\1 lo qutt; ,L tetaliaOOo
_ .,.,.,llis,ibo ioq"'r -olhor (soe<ifrl
__________ _ CITY ADMINISTRATOR
because of:
Name: or Person
..,.Lsex

_re{igioll
-
_ natkloai
-'"""'"""'
sexual OOO!llatoo
_ asoodation
_ dis>biity (phj$al or menial)
- ,.,...,.. -(""""or
gefflfi: ettraderisi:
_1_ retaftaOOn in proEcted

actOIM1Qdalioo
L Wter !specitt) SU-OiJCf!ni!uf.iow. Hotti!e WO!'k Pbq
State of Ytttat you
befieve to be tile
reason(s)lor
discrimination
SEX DISCRIMINATION AND HARASSMENT: PREFERENTIAL TREAIMEHT. LANGUAGE AND TOUCHING CREATING HOSTilE WORK ENVIRONMENT:
RET At lA OON; AGE OISCRIMINA TION
t wish to plSSlle llis matter fl OOUJt l hefeby request that the Department etf fair and Housing pfl:Mde a rigtlt-to:e.l undem.aod that if! want a fedefat notice of r@ht-ID-soe, ma: II
U.S. Equal Employmeol Commissioo (EEOC) ID file a """""'"' wim 30 days of reoool ollhe OFEH "N- of Case Clos .... : or wiM 3()() d3'fl; of lhe alleged discdmina!D<y act, wh<:he
is earlier"
I have niX been coerced Ktlo making llis request, nor do I make if based on fear of retallatiQn if I 00 nt:A do so" 1 undmtand it is the [)epa $lent c;f FaD' En'lpJoymeot and Housing's policy !0 not process
rwpeo a o.xnp!atrll once the CQmplaint has been cklsed on the basis orcomp!ainant Elected Court A'tion.
By s:vbmitting' ttliJ complaint ram declaring under penalty of perjury under the &awJ of tile State of Califomi.a lhat the foreg<Qing is true and cof"TeCt of mr own except as to mat
stated on myinfonnWon and beicf, and as to those matters I bcl:ieve it l.O be ttue.
Dated 07/28/ZQOS
A! Monterey
OAT FILED 07128/2008
OfH-300-03o (02iU8)
DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING Sf AlE OF CAUIO!<NIA
0147
0 STATEOFCALlfO.,..A-STATEA!IDCONSUMERSER _ 0 'CY
= = = = = = = = ~ = = = = = = = = = = =
DEPARTMENT OF FAIR EMPLOYMENT & HOUSING
(408) 325-0344
www.dfeh.ca.gov
July 28, 2008
MILLER, JANE
910 19TH STREET
PACIFIC GROVE,CA,93950
RE: E200809G501 0-00
MILLER/GUILLEN. RIG_H/1HI1___6S AN INOIVIDUAL
Dear MILLER, JANE:
NOTICE OF CASE CLOSURE
This letter informs that the above-referenced complaint that was filed with the Department
of Fair Employment and Housing (DFEH) has been closed effective July 28, 2008 because
an immediate right-to-sue notice was requested. DFEH will take no further action on the
complaint
This letter is also the Right-To-Sue Notice. According to Government Code section 12965,
subdivision (b), a civil action may be brought under the provisions of the Fair Employment
and Housing Act against the person, employer, labor organization or employment agency
named in the above-referenced complaint The civil action must be filed within one year
from the date of this letter.
If a federal notice of Right-To-Sue is wanted, the U.S. Equal Employment Opportunity
Commission (EEOC) must be visited to file a complaint within 30 days of receipt of this
DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act,
whichever is earlier.
0148
I'IUUt;e Ul VO:)t::: VIU'SUI t'
Page Two 0
0
DFEH does not retain case files beyond three years after a complaint is filed, unless the case
is still open at the end of the three-year period.
Sincerely,
Marlene Masseti
cc: Case File
SUE MCCLOUD
MAYOR
CITY OF CARMEL BY THE SEA
BOXCC
OFEH20043 (00/06)
0149
.STATEOFCALJFORN1AS1ATFANDCONSUMERS ..
DEPARTMENT OF FAIR EMi-'LOYMENT & HOUSING
2570 North First Street. Suite 480
( 408) 325-0344
www.dfeh.ca.gov
July 28, 2008
RE: E200809G5010-00
MILLER/CITY QF CARMEL-BY-THE-SEA
NOTICE TO COMPLAINANT'S ATTORNEY
Enclosed is a copy of your client's complaint of discrimination filed with the Department of
Fair Employment and Housing (DFEH) pursuant to the California Fair Employment and
Housing Act, Government Code section 12900 et seq. Also enclosed is a copy of your
clienrs Notice of Case Closure, which constitutes your client's right-to-sue notice. Pursuant
to Government Code section 12962, DFEH will not serve these documents on the
employer.
Please refer to the enclosed Notice of Case Closure for information regarding filling a
private lawsuit in the State of California.
Sincerely,
Marlene Masseti
Enclosure: Complaint of Discrimination
Notice of Case Closure
(01f08)
0150
0
* * * EMPLOYMENT
COMPLAINT OF DISCRIMINATION UNDER
THE PROVISIONS OF THE CALIFORNIA
FAIR EMPLOYMENT AND HOUSING ACT
DFEH#
E200809G5010-00
DFEH USE ONLY
CALIFORNIA Dl;PI\RJMENT OF FAIR EMPLOYMENT AND HOUSING
YOUR NAME Mr. or Ms}
MILLER, JANE
ADDRESS
910 19TH STREET
CITY/STATE/ZIP
PACIFIC GROVE, CA 93950
COUNTY
MONTEREY
TElEPHONE NUMBER (INCLUDE AREA COOE)
(831)809-2437
COUNTY CODE
053
NAMED IS THE EMPLOYER, PERSON, lABOR ORGANIZATION, EMPLOYMENT AGENCY, APPRENTICESHIP COMMiffiE, OR STATE OR LOCAL GOVERNMENT AGENCY WHO
DISCRIMINATED AGAINST ME:
NAME

TEI.EPHONE NUMBER (lndude Atea Code)
ADORESS
CITY HALL, POST OFFICE BOX CC

ClTY/STATEIZIP
(831)620-2000

OfEH USE ONLY
COUNTY COUNTY COOE
CARMEL BY 'fl:IE.SEA, 93:.:9:.=2-=.1
1 RESPONDENT COOE
NO. OF EMPlOYEE&MEMBERS (ilkooon) DATE MOST RECENT OR CONTINUING DISCRIMINATION
TOOl< PLACE (mooll>,day, andY"")
66
07/2812008
----------------------
THE PARTICULARS AAE:
I allege that on ,
the following conduct occurred:
--
.. Llaidoff
--O'emJiioo
_L haras$lll$nl
_ geoefJc cflaractenstie$ tes!iog
_ coo'"""'" dO<h"'Je (fo<t<d qWQ
lnpecmis.sible non.pb<elated ilquity
_ Oenfal of
-denial ol promolioo
derlial of transfer
00
deoial of
_x_ faitoJre til prevent discflmtnaUon or retafiatilil
-A_tetaliaOOn
_ olhet (Sj>iiy) _.
_ Qe(lial oftan'iy or
_ denial of p!e911aocy leaYe
- denie<i of equal pay
_denial o! .;jlt to wa-
_denial of pregnancy aa:oovnodaOOn
Job Tille di'edolfelc.)
because of:
State of w11at you
believe to be the
reason(s) fQr
discrimination
_!_sex
___X_ age

,_
--origin!-
- marilalslatus
sexual orientaOOn
""""-
_ disOOiit)' m men !<d)
_n":ldicalcoodibl
t;eneli; chrocleristic
L re!aiiaOOn br eng<gmg in protected
adM!yO< ""l""""<J
leave or aco:mnodatioo
_L other {specily) HIK'file WM Place
SEX DISCRIMINATION /\NO HARASSMENT; PREfERENTIAL TREATMENT, lANGUAGE /\NO TOUCHING CREATING HOSnE WORK EN'IIROMENT;
RETALIATION; AGE OISCRIMINATION .
I pursue this matter in court l hereby request that the Oepattment of fait Ernpioymenl aod Housing provide a righHo--soo r undefstaod that if I W<fil a lederal OO(ll;e of right41Mue, I must \isil!
U.S. Equal Employment OppQrtunity Commissioo 1o file a iX!FnJllaint wiUOO 30 days tif rereipt of the DFEH Case CXISUfe: within 300 days of the disatninat!X)'
is earlier.
I have not been lruo making ltlis request. OQr do ! it bawd on reac of i{ 1 do not do
00
. 1 ullderstand tl is Ule of Fair Employment and Hoosmg's policy lo not proces!
roopeo a complaint ttlce lheOJfllt!lainl has been dQS(:d oo the ba<>is of Complainant Elected Court Action.
By submitting this complaint I am d;:claring \lnder penalty of petjucy under the law$ of tM state of California that the foregoing i's true and correct of my own knowledge except n to ma
st.atc<i on my lnfoOMtion and belief, and a:s to those mattm I believe it l.rJ be true.
Oaled 0712812008
At Monterey
DATE FILED 071281200B
OfE!-t.J00--03o (02108)
FAIR EMPlOYMENT AND H(
0151
STA1 OFCAUFOR>ItA 0

DEPARTMENT OF FAIR EMPLOYMENT & HOUSING
(408) 325-0344
www.dfeh.ca.gov
July 28, 2008
MILLER. JANE
910 19TH STREET
PACIFIC GROVE, CA 93950
RE: E200809G5010-00
MILLER/CITY OF
Dear MILLER. JANE:
NOTICE OF CASE CLOSURE
This letter informs that the above-referenced com plaint that was filed with the Department
of Fair Employment and Housing (DFEH) has been closed effective July 28, 2008 because
an immediate right-to-sue notice was requested. DFEH will take no further action on the
complaint.
This letter is also the Right-To-Sue Notice. According to Government Code section 12965,
subdivision (b), a civil action may be brought under the provisions of the Fair Employment
and Housing Act against the person, employer, labor organization or employment agency
named in the abovecreferenced complaint. The civil action must be filed within one year
from the date of this letter.
If a federal notice of Right-To-Sue is wanted, the U.S. Equal Employment Opportunity
Commission (EEOC) must be visited to file a complaint within 30 days of receipt of this
DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act,
whichever is earlier.
0152
t'IUUt;t::: u1 va:>e v t u ~ u r t .
Page Two
0
0
DFEH does not retain case files beyond three years after a complaint is filed, unless the case
is still open at the end of the three-year period.
Sincerely,
Marlene Masseti
cc: Case File
SUE MCCLOUD
MAYOR
CITY OF CARMEL BY THE SEA
POST OFFICE BOX CC
OFEH-2{.10-43 \06106)
0153
------
0 0
EXHIBIT G
0154
Facsimile
(831) 3 7 3 ~ 2 4 2
Confidential
0
LAW OFFICES OF.
MICHAEL W. STAMP
October 17, 2008
Mayor Sue McCloud and Members of the City Council
c/o Liebert Cassidy Whitmore
Re: Jane Miller/City of Carmel-by-the-Sea
Dear Mayor and Members of the City Council:
0
Telephone
(831) 373-1214
We represent Jane Miller_ This is a confidential letter to the Mayor and City
Council in regard to Ms. Miller's employment.
The Complaint
Nearly five months ago, Jane Miller, the Human Resources Manager for the City
of Carmel-by-the-Sea, informed the Mayor and City Council in writing of her claims of
retaliation, gender-based discrimination and harassment, and age discrimination against
the City and City Administrator Richard Guillen. Ms. Miller also filed a complaint with
the California Department of Fair Employment and Housing.
Although the City has a policy prohibiting harassment which mandates prompt
and effective action, the City did not take either prompt or effective action. In fact, the
City has taken no meaningful action.
City's Lack of Response to Ms. Miller's Complaint
In a letter of May 20, 2008, on behalf of Ms. Miller, we provided notice to the
Mayor of Ms. Miller's claims in regard to Richard Guillen. The Mayor never responded.
On May 21, 2008, Ms. Miller was placed on sick leave after she saw a doctor for
work-related stress and depression.
On May 22, 2008, the City Attorney's office referenced our letter to the Mayor,
and stated that the City Attorney was not available and would "prepare a response"
when he returned from vacation. We have received no further response from the City
Attorney.
On May 23, 2008, City Administrator Richard Guillen sent a letter to Ms. Miller at
her home. He started the letter by acknowledging that Ms. Miller's counsel had written
to the Mayor about Mr. Guillen. Mr. Guillen informed Ms. Miller that he saw no reason
0155
0
Confidential
October 17, 2008
Page2
0
for her to be placed on paid administrative leave and told her that "absent a valid reason
for taking leave time, you are expected to report for and fully perform your duties and
responsibilities for the City." It was apparent that Mr. Guillen was in charge of the City's
response to the complaint.
On August 19, 2008, our office was contacted by a lawyer who said she had
been hired to investigate Ms. Miller's complaint.
OnAugust 26, 2008, in an informal email, Mr. Michael J. DePaul of Liebert
Cassidy for the first time acknowledged to us that Liebert Cassidy was representing the
City on Ms. Miller's claims. He advised us that his firm had retained an investigator to
investigate Ms. Miller's "various harassment claims." We then began a largely
unsuccessful effort to find out the basic information about the City's "investigation"-
who was hired by whom, what City policies guided the investigation, how privacy would
be protected, the role of Mr. Guillen in investigating himself, and other crucial
information. Liebert Cassidy provided only general responses and refused to answer
the specific questions asked on behalf of Ms. Miller.
On September 10, 2008, we wrote a follow-up letter to Liebert Cassidy which
repeated our unanswered questions about the investigation and requested that the City
respond and provide information. On September 23, 2008, as a partial response to Ms.
Miller's concerns regarding privacy, Liebert Cassidy indicated that all communications
between the investigator and the firm, and also between the firm and the City, would be
"privileged." However, rather than safeguard Ms. Miller's privacy, such a claim of
privilege is intended to deny her access to information that the investigation will
produce, and was designed to protect the City and Mr. Guillen. The City again refused
to provide the essential information that we requested.
On September 30, 2008, we again wrote to Liebert Cassidy. We expressed our
disappointment in the City's refusal to provide basic, material information. We have
received no further response from the City.
During her employment with the City, Ms. Miller has had no adequate or
appropriate recourse to remedy her concerns. According to the City discrimination
policy, provided by the City four months after Ms. Miller notified the City of her claim, the
employee's recourse is to inform the personnel committee, which did not exist at the
City. Ms. Miller's only other possible option was to contact the Mayor, which she did
with the letter of May 20. It is clear that the Mayor then allowed Mr. Guillen to act
against Ms. Miller by ordering her to return to work, and that it was futile for Ms. Miller to
disclose anything to the City in confidence and without fear of retaliation. The Mayor
haJS never responded to Ms. Miller's May 20 complaint, nor has she responded to Ms.
Miller's DFEH complaint.
0156
0
Confidential
October 17, 2008
Page 3
0
Had the City responded appropriately when the complaint was made in May, or
followed up in a timely and efficient manner with a promise of an independent
investigation and full disclosure, Ms. Miller would have been in a position to decide
whether she voluntarily wanted to provide an interview to the City. The City's failures
have increased the injury and damages.
Under the circumstances, Ms. Miller has chosen to provide a written statement
which broadly outlines the workplace situation, Mr. Guillen's actions, the actions
directed at Ms. Miller and the favoritism displayed to others, all of which support her
May 20, 2008 letter. Ms. Miller will submit that letter next week as a confidential letter to
the Mayor and City Council. Ms. Miller urges the Mayor and City Council not to delay
further in remedying the problem that has existed for a long time at the City.
Ms. Miller's physical and emotional health has suffered as a result of the
treatment she has received after nine years of the highest quality of service to the City.
On May 21, 2008, Ms. Miller took sick leave after seeing a doctor for stress and
depression due to work. She cannot return to the hostile work place where Mr. Guillen
continues as City Administrator. Her career has been destroyed and her damages
continue to accrue each day.
Next Steps
The Mayor and City Council have failed to take the steps necessary to
investigate the claims and provide a prompt and effective remedy. The City Attorney's
silence and the City's decision to empower Mr. Guillen to control the City's response to
Ms. Miller's claims are inexcusable. The City has ratified Mr. Guillen's conduct
Conclusion
Please advise me no later than October 29, 2008, as to whether the City is willing
to meet in good faith and discuss this case. If we do not get a satisfactory response by
that date, Ms. Miller will proceed with her legal options.
ry truly yours,
i ~ a e i W ~
cc: City Attorney Donald Freeman
0157
0 0
EXHIBIT H
0158
Facsimile
(831) 373-0242
Confidential
Donald G. Freeman
Perry & Freeman
0
P.O. Box805
Re: Jane Miller
Dear Mr. Freeman:
LAW OFFICES OF
MICHAEL W. STAMP
4 79 Pacific Street, Suite 1
October 23, 2008
0
Telephone
(831) 373-1214
Per our letter of October 17, 2008, enclosed please find an original and five
copies of a statement by Jane Miller. Please forward the copies to the Mayor and City
Council.
We appreciate your courtesy and cooperation in this matter.
Michael W. Stamp
cc: Liebert Cassidy Whitmore
0159
0
Confidential
City Hall
0
Jane Miller
October 23,2008
Re: My Employment with the City of Carmel-by-the-Sea
Dear Mayor and City Council:
For years, I watched City Administrator Richard Guillen make professional
decisions based upon favoritism, gender, age and inappropriate relationships. Guillen is a
manipulative boss who needs attention from and cultivates relationships with women at
work into something which can turn them into "work spouses." When those women
respond to his behavior, Guillen rewards them financially and professionally. On the
other hand, Guillen gets rid of women employees if they don't respond to his needs. Over
the years, I've tried to maintain a friendly, professional working relationship with Guillen,
respected him as the "boss" and have not challenged him for his inappropriate actions. I
now believe that was a mistake.
. In Apri12008, Guillen told me that he wanted to eliminate my position of Human
Resources Manager. He gave me no legitimate justifiable budgetary or organizational
reason. Guillen said that he wanted to fund three additional firefighters, and that he had
to find the money "somewhere," (Guillen ended up not including the additional
frrefighters as a cost in the budget submitted to the Council on May 201h, but did include
the elimination of my position, among others.) I was shocked by his decision to get rid of
me. Although he had made comments in the past about my age and his views of
retirement, I knew that there was no legitimate basis for eliminating my position. I
started to seriously reflect on his history of favoritism-based management and question
his motives even more than I had before.
I provide the following information to illustrate my complaints against Guillen. I
have personal notes, personal emails, copies of instant messages ar1d other infonnation to
support the allegations in this document. A City employee told me that City staffers
1
0160
0
0
know a lot about Guillen's behavior, but are afraid that if they say anything they will lose
their jobs.
I have always been professional with Guillen. I have had no personal or inappropriate
relationships with him, and have not been involved with him in any capacity except work.
I wish to be very clear about that. Over the years, throughout numerous personal emails and
Instant Messages, Guillen peppered me with inappropriate comments of affection,
appropriate for a girlfriend, but not a subordinate. He did so while maintaining his position
as my "boss," a position that he explicitly reminded me of- that he was my "boss." In a very
poisonous way, Guillen combined work and his version of sexual attraction - frequently
calling himself"the boss" as he referred to me as a "hottie" or his "blonde worker bee" and
repeatedly saying things like, "I completely adore you." He would announce that he knew
that I didn't like his compliments about my looks, and then say something like "I know it
embarasses [sic] you to know this, but I liked you from the day I met you, always have and
always will."
He told me to get used to his compliments and affectionate comments "because you
will always get them from rne whether I'm your boss or your pal (especially your pal after
we retire)." He would talk about his retirement, envisioning some shared future where he
would be my friend, talk about how I had become "that age," and tell me "I want to enjoy
your company for many years to come." He liked to repcathisidea1haL''lve.:Uhe.palsway. __ _
past our experiences in CBTS." He described himselfas "your boss and fi:iendforlife,"
projected simultaneous retirements for the tw(}.{)f...us,..aad commooted-about..flow I do not
look like a grandmother. He frequently referred to me as "grandma." He said that his talking
to me all the time is a burden I will carry for the rest of my life.
It became common for Guillen to try to give me "hugs" when I was on the phone at
work or when I was leaving the work place, but oii.ly if others weren't around. He once tried
to give me what he called a "virtual hug" because he said he had wanted to give me a hug at
work, but another co-worker was present. Once, in the parking lot after work, when no one
else was around, he gave me a hug and a kiss on the cheek. I did not know what to say and
decided to ignore it. I tried to think of the "hugging" behavior as just a "thanks for being a
friend" thing, although it made me very uncomfortable. Guillen would often come into the
copy room when I was trying to work and mess up my hair, in a flirtatious manner.
Guillen had a habit of coming into my office when I was on the phone in a serious
work -related conversation, and he tried to distract me by putting his arm around me,
indicating that he wanted me to end my phone call and talk to him instead. I ignored his
2
0161
0
0
behavior and rationalized it as best I could. I regret not directly confronting him about
his inappropriate behavior, but I did not because I was intimidated, afraid to Jose my job,
and well aware of his absolute power in the work place and in City government.
In addition to touching me, he would frequently compliment me, at work, on my
hairstyle, or what I was wearing. He told me that "I always think you look beautifuL"
He even called himself"your secret admirer," as if we were in grade school and he had a
crush on me. He knew it made me uncomfortable, he acknowledged that I did not want
his attention, but he said he was going to do it anyway.
In electronic messages and in person, Guillen used words that no professional
manager should use with a co-worker. He often addressed me as "Hottie," "Beautiful,"
"Beauty," "Good Looking," "Missy," "Girlfriend," "Sweetie," "Attractive," or "Pretty."
Guillen also exhibited inappropriate behavior towards other women in the office, such as
giving his favorite women nicknames. Christie Miller was "Queenie," Karen Crouch was
"Czarina," and Heidi Burch is affectionately known as "H." For a period of time, he
called me "Bam-Bam."
In addition to his activity during work hours, Guillen sent me instant messages and
personal e m a i l ~ at all hours of the day and night. The emails started early (such as 5:46
a.m.) and picked up again at night, going late into the night (including as late as 2:30
a.m.). The emails were sent to me from Guillen's personal email account. They were
sent on weekends, holidays, during my personal vacations, and late at night on work
nights. The vast majority of his communications were not about work-related matters.
When he did allude to work-related matters in emails, it was sometimes in an offhand,
frequently gossipy tone, instead of a professional discussion. The work issues he brought
up were not urgent, and did not merit off-hours, off-line communications. I received his
emails, and sent my own, usually'in response to his. It was a fonn of conversation where
he continually solicited infonnation about my personal life.
The after-hours messages and emails include:
Disrespectful comments about the Mayor and City Council ("I have stupid agenda
packet review/with sue and ken oh brother/have pity on me" (sent Wednesday, 10:15
p.m.); 'This Council like many others that I have worked for usually have no concept
what it takes to run city hall" (sent Sunday, 8:04 a.m.); " ... unethical behavior (like
the Mayor wanting us to hire her stupid acquiantance [sic] as a Librarian)" (sent
Thursday, 6:58a.m.)).
3
0162
0
0
Demonstrations of the complete security Guillen felt in his City position, and his
power over me (repeatedly acknowledging that he was making me uncomfortable, but
insisting that he, as "boss," would continue to do as he wished; making certain H.R.
decisions without my input; trying to blame me for his own lack of attention to his
duties).
Incessant personal comments about me, in addition to the inappropriate terms of
endearment and attraction, and the suggestive comments such as "You know I
completely adore you and nothing and I mean nothing will ever interfere with that..."
(sent Saturday, 8:59 a.m.); "What's up with work interferring [sic) with our
friendship?!" (sent Saturday, 7:23 a.m.); "it's back to work ... bummer! Well, with the
exception of getting to see you" (sent Monday, 7:48a.m.). He told me how he liked
my hair ("up"), and he remarked upon the way I dressed.
He acted like my buddy, and claimed that "we've grown to be good buddies" even
though he was my "boss"; he solicited and enjoyed hearing details of my personal life
and would share details with me about how he spent his personal time.
Some of the instant messages were sent during the workday when Guillen was on
the phone on official City business. He even sent me messages when he was talking on
the phone with the Mayor (e.g., "on the phone with sue/but almost done/would love to
see you! ... /rather be talking to jane" (sent Friday, II :41 a.m.)).
Off and on over the past several years, Guillen had a habit of calling me from his
cell phone to "chit chat" while he was driving to work in the morning although he could
have talked to me at work only a few minutes later. He also would call me on my
personal cell phone when I was on vacation or on my way home from work, again
primarily to chit chat, without any serious work related issues to discuss. He told me I
could call or email him during his vacation, telling me "you know I love talking to you."
Guillen has told me that if anything ever happened to my husband, Guillen would
be there for me. Once, knowing that my husband had returned from our family vacation
early and that I was in Tahoe on vacation alone, Guillen told me that he wanted to be
with me there. He said that if he were my husband, he would never have left me alone in
Tahoe. ("What?! Scott left for a PG Council meeting! Wide [sic] horses wouldn't drag
me away from being in Tahoe with you!!! No siree, I wouldn't leave you under any
circumstances.") I did not solicit or appreciate these comments, and I resented his
intrusions into my personal time, but I felt that I needed to get along with him in order to
keep my position.
4
0163
0
0
Guillen repeatedly tried to insinuate himself into my personal life by proposing
ways to involve himself with my life away from work. In a particularly difficult series of
communications, Guillen has even told me that he'd like to be one of my grandkids. One
weekend when he knew I was taking care of my grandkids, he asked me if he could come
over and join my family for pancakes. Another time he wrote that he had the house to
himself all day and would have called and invited himself to dinner with me and my dad.
When I told Guillen that my oldest grandson had taken up golf, Guillen volunteered to
give him golf lessons. There are many other examples. Looking back on his behavior, I
reali7..e he received some voyeuristic type of pleasure from engaging me in conversations
about my personal life. He relished talking about personal issues, more than work-related
issues. One of his favorite phrases at work was "Jane, you're boring me" if I were
engaging him in a complex analysis of a persOimel matter.
Over the years, Guillen's behavior towards me has ranged from being very
friendly to cold, indifferent and non-communicative. He's either been overly affectionate,
inappropriate, fawning or totally oblivious to me, depending on which approach works
for him. His subtle and sometimes not so subtle invitations to me to take our professional
relationship to another level were inappropriate and frequent. He placed me in a position
where I felt I had to tolerate his behavior. I found it unprofessional and sad. There have
. been many times when I have reflected upon whether or not it was better for me to be in
his "favor" or ignored, where at least he didn't constantly pester me with his attention.
For the past few years, Guillen has had many long meetings with Christie Miller
behind closed doors. Many City employees believe that Guillen has been having an
affair with Christie Miller for years. I believe that the Mayor knew about the affair, as
did other top officials of the City. The affair was a frequent topic of discussion among
City staff. An employee witnessed Guillen and Christie embracing and kissing when he
opened the door to Guillen's office and walked in. Others saw them together in non-
work-related settings and compromising positions. Employees saw Christie Miller's
influence over Guillen, and watched with anxiety as Guillen gave her special favors,
power, and money.
Prior to her service with Cam1el, Christie Miller had only limited job experience
working as a clerk in a medical office and minimal college education. In March 1998,
Christie was hired by the City as a part time Office Assistant for Sunset Center. When
Guillen started working for the City in late 2000, Christie was a Program Supervisor and
her salary was approximately $17.00 per hour. Within less than two years after Guillen
was hired, Christie began to tell Guillen that it was terrible to work for Brian Donoghue.
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Consequently, about five or six years ago, Guillen transferred Christie from Sunset
Center under Donoghue's supervision to Vista Lobos, without following standard City
procedures. After her transfer; Christie reported directly to Guillen. This reporting
arrangement was unusual. It was not in the City organizational chart, and was
inconsistent with City policy, and no other staffer with a job title equivalent to Program
Supervisor reported directly to Guillen. Under the City organizational chart, the direct-
reports to the City Administrator are directors or department or managerial heads. ln July
2003, Guillen reclassified Christie from Program Supervisor to Community Services
Manager. TI1is position was an at-will, new classification approved by Council
Resolution which provided that Guillen could "establish the salary and benefits" for
Christie, with Christie receiving a 12.32% salary increase. The salary was generous for
the job duties.
Soon thereafter, several female employees including myself expressed concern
that Guillen was obsessing over Christie Miller and spending a lot of time witll her.
There were rumors tllat Christie and Guillen were having an affair. Guillen was treating
some staffers poorly or was ignoring tllem, and the workplace was affected. We didn't
Jr.now who to talk to and we went to see our EAP counselor, because tile City had no
effective way for us to dal witll Guillen's actions and their impact on the workplace.
The EAP session did not resolve tile issue.
Another employee overheard phone conversations between Christie and Guillen,
where Christie encouraged Guillen to get rid of Assistant City Administrator Greg
D'Ambrosio and Sunset Center Director Brian Donoghue, because they were "losers."
The employee has said that Christie was the driving force behind Guillen's actions in
getting rid of Donoghue and D'Ambrosio. An employee also told me that Christie was
the driving force behind Guillen's eventual decision to eliminate my position.
[n early 2006, after lengthy private meetings behind closed doors with Christie,
Guillen wanted to give Christie a retroactive salary increase. [ analyzed the proposed
increase in accord with City policies and rules, and determined that a retroactive salary
bonus was unusual and unnecessary under City policy. Guillen gave Christie a 10%
salary increase, retroactive to July 16, 2003 (almost 2 Yz years worth - which was
unprecedented, to my knowledge- equaling approximately $9,000 in unbudgeted funds}.
It was, in effect, a retroactive renegotiation of the 2003 agreement. There was no
business reason or legitimate municipal government reason for the City to take this
action. [n face to face meetings with Guillen, [ objected to the retroactive payment. In a
subsequent personal email to me, Guillen explained that I should not "concern" myself
"about Christie's salary issue . . . because it was an honest mistake and Christie
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understands that." I had not made a mistake; Guillen was the one responsible for directly
supervising Christie and for her salary. Guillen then immediately said to me in the same
email: "You know that I completely adore you and nothing I mean nothing will ever
interfere with that." The message was clear- Guillen's relationship with Christie had a
direct financial impact on the City, and Christie's pay raise was more important than City
policies or the City's legal obligations to its employees, or the professional judgment of
the City's Human Resources Manager. I feel that he tried to get me to buy-in to his
decision by reverting to personal, affectionate and inappropriate comments to me, with a
clear message to me to get out of the way.
In the summer of2006, Christie was reclassified to Community Services Director
based on a job description that she prepared and negotiated directly with Guillen. Guillen
gave me the description, which was not consistent with standard City job descriptions.
Guillen told me to modifY the job description to represent what should actually be
relevant in a Director level position. In the job description, among other changes, I
included education of at least a Bachelor's degree plus 5 years of supervisory experience.
I told Guillen he should encourage Christie to get a Bachelor's degree because she
couldn't compete for this position in the world outside of Carmel. So, he placed her on
. the I st step level of a range that I had developed which would fit in alignment with our
other classifications, and proceeded with her reclassification.
By October 2007, Christie's husband John Miller had been put on notice that his
job with the City of Pacific Grove was being proposed for elimination for budgetary
reasons. My husband sits on the Pacific Grove City Council. That month Guillen gave
Christie a raise from Step 1 to S ~ e p 5, retroactive to July 1, 2007, along with a 3% COLA.
Guillen did not discuss his decision regarding the business necessity of this pay increase
with me. I was personally appalled, but Guillen had not sought my input; the increase
was directed and processed by Guillen because that's what he wanted. Any outsider
would construe this as a gift of public dollars, because there was no legitimate business
reason given by Guillen for the move. I felt it was an effort by him to "bump up" her last
fmal year of compensation as a factor in her impending retirement in June 2008. But,
from that point forward, Guillen also appeared to continue to include Christie (although
she soon would be leaving the organization and had no recognized City role in such
matters) in many of his business decisions, including finding a contract IT person to
replace an existing employee and a contract HR person to replace me. The situation
made me feel powerless because Guillen precluded me, the Human Resources Manager,
from perfonning my job duties, deciding personnel matters by himself for reasons that
were not consistent with a professional City government.
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In June 2008, Christie Miller retired from the City. She was permitted to stay on
the City payroll beyond her announced retirement date of June 30th by using her vacation
and management leave. In doing so, she received what probably is at least an additional
two months of salary and benefits paid by the City, although this expenditure was
unbudgeted in the budget adopted by Council for 08/09. When Christie left the City she
was making about $50 per hour plus full benefits as Community Services Director.
Recently, ostensibly to replace her, the City posted a job announcement for a part time
Community Events Coordinator, at a salary of $15-$19 per hour. The entire financial
arrangement with Christie was irregular and extremely generous. I don't believe there
was sufficient transparency to the Council or the public regarding the lucrative benefits
provided to Christie compared to the actual value of her position to the City. Her value to
the City was based upon her value to Guillen.
Guillen and Heidi Burch are now involved in a relationship that is inappropriate
for the work place. For more than a year before Guillen told me that he was eliminating
. my position for budgetary reasons, Guillen and Heidi Burch had almost daily meetings
behind closed doors and went to lunch together on a daily basis. It's been observed by
me and several other staff members that Guillen and Heidi often try to be secretive about
their time together by coming a.nd going out of separate doors at City Hall, but then
joining up in the parking lot. They have gone together to functions outside the City,
sometimes in circumstances that bring into question their professionalism and
relationship.
Guillen hired Heidi on August I, 2005. Heidi had a good education, but no public
sector or City Clerk experience. Her starting salary was $5,379/rnonth. In February
2006, after six months on the job, Heidi received a step increase from step 2 to 3 which
was equal to 5% increase in salary.
By March 2007, Heidi was unofficially "reclassified" by Guillen to City
Clerk/Deputy City Administrator for taking on more of Guillen's responsibilities.
However, Guillen and Heidi continued to participate in most City Administrator
functions jointly, rather than independently. In July 2007, Heidi was officially
reclassified via the iiudget documents as City Clerk/Deputy City Administrator at a salary
that was 19% higher. Later and prior to the new budget of 2008/09, without Council
action, Guillen and Heidi decided that her title should be Assistant City
Administrator/City Clerk. When I left in May 2008, Heidi had not been given a recent
perfom1ance evaluation on the new job duties she had been assigned and no new job
description had been created to categorize her duties. Her monthly salary in March 2008
was $9, 125/month.
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Heidi Burch and Christie Miller were issued City-provided cell phones. Neither
Joyce Giuffre, Administrative Services Director, nor I have had a City-provided cell
phone. Guillen called Christie and Heidi very often throughout the work day on his work
cell phone. In comparison, he didn't communicate as much on his cell phone with other
City employees and elected officials (like the Public Safety Director or even the Mayor).
The discussion within City Hall about Guillen's relationships was open and
frequent. At one point in May 2007, Guillen even sent an email to several City Hall
employees, including myself, with a link to an article about four employees in Hooksett,
New Hampshire who had been fired for gossiping about an improper relationship
between the town administrator and another employee. In the email Guillen stated that
there is "reason to be careful what we say in the workplace!" Guillen instructed me to
inquire with legal counsel as to whether employees could be disciplined or fired for
talking too much at work about rumors. He stated that it was time "to put a stop to" the
unfounded" rumors in the City. He made his threat clear to the women in the office who
might be questioning his "work relationships."
Guillen has made bad decisions regarding salaries and work responsibility based
on favoritism that has not only created a discriminatory working environment but also
has drained away City funds. The unprecedented raises, benefits and higher "Job Titles"
he gave to Christie and Heidi were decisions that were not supported in the budget or by
their qualifications. Other than with Guillen's favorite female employees, Carmel-by-the
Sea has been trying to be fiscally conservative with employees based upon the economy
of the past several years. (This fact is significantly obvious in the City's fiscal policy
used in labor negotiations with LIUNA, Police and Fire Associations.) Guillen did not
give George Rawson, Public Safety Director, a comparable increase since George's hire
date, in spite of the fact that George took on significant additional responsibilities for the
oversight of the Fire Department for Carmel several years ago. (When George's salary
was finally increased to reflect his additional responsibilities, it was not made retroactive
to the date he took over the Fire Department several years earlier.) The numbers are
clear:
Since 2003, Guillen increased Christie Miller's salary by about 83%.
Since 2005, Guillen increased Heidi Burch's salary by about 70%.
Since 2001, Guillen increased George Rawson's salary by about 25-30%.
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Since 2004, Guillen increased my salary by about 9% (5% of which was for a step
increase from 4th to 5th.)
After years of suggestive and inappropriate comments, knowing my husband was
away from home, Guillen got more specific. He proposed that he bring over a pizza and
watch football at my house. I rrjected that proposaL This exchange took place in front
of Executive Assistant Sandy Farrell. Shortly afterward, Guillen told me that he was
thinking of eliminating my position because I was getting to be "that age" and that he
thought I would probably like to spend more time with my grandchildren.
Several other incidents made it apparent that I had lost favor with Guillen. Guillen
started checking up on me in odd ways, such as having another staff person call our labor
attorneys Liebert Cassidy to a ~ k if it was appropriate for me to take FMLA time to take
care of my ailing father. Guillen never questioned me directly about it. I thought it was
weird that he would ask another employee this question about me, but not even bring it
up to me. It appears that Guillen took this action after Heidi had tried to field some
question that came in for me when I was gone for the last hour of the day (to leave work
and visit my father in Salinas) and she didn't have the answers. In the final analysis, I
. didn't use more than approximately 40 hours of sick leave (FMLA) in order to attend to
my ailing father. He died on December 16, 2007.
Another situation where I felt I was being singled out for some weird reason was
when I put in for a reimbursement for my annual physical exam costs not otherwise
covered by insurance. This is a benefit of management. Heidi went to another employee
and stated that Guillen wasn't sure that I was eligible for this benefit, in spite of the fact
that it had always been in our Confidential MOU and was an ongoing practice.
Longtime Executive Assistant Sandy Farrell, recently forced from her job by
Guillen, has observed Guillen's actions, including his obvious favoritism toward Christie
and Heidi. Earlier this year, Guillen hired a new administrative staff person named Molly
Laughlin. Molly Laughlin, an assistant to John Miller, Recreation Director for the City
of Pacific Grove (and Christie Miller's husband), had recently been laid off from the City
of Pacific Grove. Although I was the City's Human Resources Manager, Guillen did not
involve me in Molly's hiring process, except to do the usual pre-employment
requirements of a fingerprint background and pre-employment exam, after he and Heidi
had interviewed her and made the decision to hire her. There were no specific funds in
the 2007-08 budget to support the expense of hiring Molly.
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Although her experience did not merit it, Guillen directed that Molly's salary be at
the 4th step level of the Executive Assistant salary (the same range as Sandy Farrell).
Shortly after Molly started work, Guillen stated to me and Joyce Giuffre: "Well, not to
leave this room, but Molly is here to replace Sandy." Shortly after that, Sandy Farrell left
City employment, feeling totally stressed at the office, no longer willing to tolerate
Guillen's inappropriate behavior, and feeling that Guillen was trying to force her out
anyway, based upon his hiring of Molly to pretty much take over her job. Guillen then
negotiated a buy-out with Sandy, promising benefits to her that he had no authority to
give without council authorization. I don't recall that he ever discussed this potential
''buy-out settlement agreement" with Council in a closed session. He also never
discussed with me his intent to enter into his agreement with Sandy, and the actions
necessary to implement it. It just happened. Subsequently, I had to write a Resolution
authorizing an additional "2 Years Service Agreement" with CalPERS (a golden
parachute) for Sandy, after S a ~ d y left. Contrary to one of the legal requirements of
Ca!PERS for the golden parachute, Guillen didn't intend to leave Sandy's position vacant
as he had already lined up Molly to take over Sandy's responsibilities with a new title in
the 08/09 budget: "Administrative Manager/Deputy City Clerk." To my knowledge, no
official job description was created for this position, which ostensibly replaced the
Executive Assistant.
. On April 16, 2008, the day after Sandy's last day, Guillen called me to his office
about 10 a.m. and said he was outsourcing Human Resources as part of a re-organization
for the new budget. Mine wasn't the only position, he said, and that he wanted me to hear
it from him before it came from anyone else. I told him that he caught me off guard and
that on a personal and financial level I wanted to work longer. I was too stunned to
discuss his decision further that day.
Guillen's behavior towards me changed drastically. He avoided me, did not
acknowledge my emails at work' and went through Joyce Giuffre to get information to me
or from me, and generally made me feel ostracized from the organization. TI1is was in
stark contrast to his previous behavior of frequently conversing with me via email, instant
messages and phone, and his frequent praise that I was a good worker.
I can't think of anyone in the organization of Carmel-by-the-Sea or outside of the
. organization who wouldn't give me the highest praise for being fuir, ethical, professional,
efficient, and dedicated. I have been professional and up front and have not entered into
an intimate relationship with Guillen. Guillen himself has told me, in emails and in
person, that I'm the "best," that he wanted to take me with him when he leaves the City,
and that I'm "painfully honest" while other managers are not.
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From the information available to me now, I ean see that Guillen's decision to
eliminate my position is the result of a number of factors relating to gender and age.
They include my not having acquiesced to his implicit suggestions to get together; my
age itself; Guillen's own reaction to his years of favoritism and his relationships at work;
and Guillen's unease with my professionally questioning his efforts to reward
Christie/Heidi in ways that showed loyalty to these two women and not to the taxpayers,
the public, or the City. I observed how Guillen pushed other women out of the
organization who were getting older and were not on Guillen's "favorites" list. I also
have reason to believe that Christie Miller may have used her relationship with and
influence on Guillen to wreak her personal vengeance against me, because Christie's
husband was re-organized out of the City of Pacific Grove where my husband was on the
City Council.
Guillen's conduct towards City employees over the years made it clear that he
would force out of the organization anyone who complained about his behavior. I and
others have endured Guillen's conduct in silence for years out of fear of losing our jobs,
while witnessing older female employees not favored by Guillen forced into early
retirement. Guillen bestowed job benefits, unprecedented promotions, and raises on
certain younger female employees who did not refuse his inappropriate friendships. In
addition to being subjected to inappropriate comments, touching, emails and instant
messages, I was frequently mady to feel that I too had to acquiesce to Guillen's advances
in order to receive favorable treatment or at least to keep my job. A demeaning message
was conveyed to women in the workplace that the only way for them to advance was
through engaging in a relationship with the City Administrator on his terms. I did not
receive the same increases in pay and benefits as "participating" female employees.
Guillen has acted inappropriately in many other aspects of his employment. His
behavior toward female employees demonstrates his disregard for and flaunting of City
policies. Guillen disregards and demonstrates indifference to the procedures laid down in
the City ordinances, including the personnel policy. He gets rid of City employees for
personal reasons. Guillen exercises unchecked control over the City budget, by
unjustifiably increasing the salaries of and giving lavish benefits to favorite younger
female employees, and by negotiating generous severance packages. As records show,
Guillen spends an inordinate amount of time during the workday engaged in non-work
related activities, such as chatting on the phone or instant messaging on the computer
with his female favorites. Guillen flaunts his omnipotence and independence from the
City Council's authority. Guillen's own disregard of the City harassment policy is just
one example of a pattern of inappropriate behavior he has established in the workplace.
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Ironically, as of May of 2008, Guillen was one of only two out of 40-plus City
supervisors who had not completed the mandatory harassment training, which was easily
accessible on-line and established by the City in November 2007.
In retrospect, there were many warning signs that I wish l would have heeded
regarding Guillen: his childish office antics, his fawning over me personally, his
disrespectful attitude toward his own "bosses" (the Council), his unending need for
attention from subordinates (especially women), his frequent focus upon my retirement
and his flawed managerial skills. Frequent phrases which Guillen used in front of me
were statements like: "I'll just 'Skelly' him!her out of here" (when he didn't like an
employee); or 'this is my super-secret plan"; or, "if you ever say I said this, 'I'll deny it,'"
or "pinky-swear," regarding not disclosing the contents of a conversation with me. He
has cost the City a lot of money with severance packages which weren't necessary, if he
had only proceeded judiciously, rationally, and respectably regarding the needs of the
organization. His managerial style has been troubling, discriminating and disruptive. If
nothing is done, he will eventua.lly bring extreme discredit to the City of Carmel-by-the-
Sea.
I suggest the City start by interviewing the following persons regarding
information about Guillen and the work place, and ask them direct questions about
Guillen's actions, what they were told, what they knew, and when:
Richard Guillen
Heidi Burch
Mayor, City Attorney, and City Council members
In addition, you can search Guillen's email and phone records, and check the hard
drive on Iris computer. You can review the records of the women who have left City
service in the past few years under Guillen, and you can interview those women. You
can contact Christie Miller if you choose to do so. What you cannot do is ignore the
conditions that allowed Guillen to do what he has been doing. My career, my health, and
the City's well-being are at stake.
Miller
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EXHIBIT I
0173
Facsimile
(831) 373-0242
0
Richard C. Bolanos
Liebert Cassidy Whitmore
LAW OFFICES OF
MICHAEL W. STAMP
December 11, 2008
0
Re: Jane Miller and City of Carmel-by-the-Sea
Dear Mr. Bolanos:
Telephone
(831) 373-1214
I have been contacted again by your investigator, Karen Kramer. I asked what
information Ms. Kramer had received in regard to this case. I was disappointed to see
that she had not received all of the correspondence relative to Ms. Miller's claims, and
that your Office had withheld the correspondence that directly discussed the interview
process and my client's legitimate concerns about the process, including confidentiality.
Today, I was contacted by the media. The media was seeking additional details
to add to a story in regard to a so-called "claim" filed by my client against the City about
Mr. Guillen's conduct at work. It is clear that someone (not Ms. Miller, and not my
Office) leaked details to the media about Ms. Miller's confidential personnel matter. It is
not inconceivable to think that the leak was related to the interviews by the City, or from
the City staff or governing board members. I've addressed this issue briefly in a letter
directly to the City Attorney today.
These developments highlight Ms. Miller's concerns about the Kramer
investigation and the City's handling of this matter. Once again, I ask that the City's
attorneys respond to the questions and concerns previously raised in my
correspondence with your Office. Once that information is fully and fairly provided by
the City or by your Office, Ms. Miller will be able to make an informed decision about the
next steps, including those relating to the Kramer investigation.
I will advise Ms. Kramer that I have written to you.
cc: Donald G. Freeman, City Attorney
0174
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EXHIBIT J
0175
facsimile
(831) 3 7 3 ~ 2 4 2
Michael J. DePaul
0
Liebert Cassidy Wihitmore
LAW OFFICES OF
MICHAEL W. STAMP
Monterey, Catifomla 93940
August 28, 2008
Dear Mr. DePaul:
0
Telephone
(831) 373-1214
This letter is in response to the inquiry that I have received from Karen Kramer.
Ms. Kramer called me on August 19, 2008. She introduced herself and informed
me that she had been retained to perform an investigation relating to my client, Jane
Miller. and her claims involving the City of Carmel-by-the-Sea. She told me that she
would like to interview Ms. Miller. Before that call, no one with the City had contacted
me in regard to Ms. Miller's claims.
I asked Ms. Kramer who had retained her. She told me that Liebert Cassidy had
retained her, and that you were the attorney who specifically contacted her. We did not
have much more of a discussion than that, except that she asked a question about
interviewing Ms. Miller before September 30.
I now have received your email of August 26, in which you advise me that "the
City has retained an investigator to investigate Jane Milter's various harassment
claims." That is the first notice from you or from your firm that you are representing the
City on any of Jane Miller's employment claims.
In order to allow Ms. Miller to review the situation more thoroughly, including Ms.
Kramer's request for an interview, we would appreciate some additional information
from the City. Please provide the City's responses in writing so that we wilt not have
any misunderstandings.
For your convenience in responding, we.have grouped and numbered the
questions in this letter sequentially.
1. Whom do you represent? The City and Richard Guillen? The City
but not Mr. Guillen individually?
2. Who has retained Ms. Kramer? You, Liebert Cassidy, the City
Council, the City Attorney, the City, or someone else?
0176
Michael J. DePaul
August 28, 2008
Page 2
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3. What are the terms under which Ms. Kramer has been retained?
4. To whom is Ms. Kramer to report, and how and when? Who, if
anyone, at the City is coordinating the work of the investigator?
5. What directions/instructions have been provided to Ms. Kramer by
the City, City Attorney, City Council, you and/or Liebert Cassidy?
6. What role(s), if any, do you and/or your firm and/or the City
Attorney play in regard to defining or determining the scope of the
investigation, conducting or monitoring it, or reviewing it?
7. What assurances. if any, of confidentiality are being provided to
persons interviewed? What assurances, if any, of protection from
retaliation are being provided to persons interviewed? What
instructions and information are given to interviewees about the
investigation? What steps are to be taken to ensure the privacy of
Ms. Miller?
8. Will elected officials be interviewed? Will the elected officials, or
any of them, have the right or opportunity to assert any claim of
privilege or confidentiality as to what they knew and when, or what
they discussed with the City Attorney, staff, or others?
9. What precisely is being investigated? (Your statement that
Ms. Kramer is to investigate "various harassment claims" is
imprecise and dismissive.)
10. When the investigation is concluded, what happens to the report,
findings, notes, and investigation materials, including recordings
and memos of questions and answers?
11. Is this investigation initiated under, or being carried out pursuant to,
any specific City policy, DFEH or EEOC guideline, statute or case
law?
12. Is Ms. Miller or any other person required by the City to participate
in the investigation? If so, please fully explain.
13. What rules, guidelines, standards, and procedures are being
utilized in the investigation?
14. What access does the City Administrator have to the investigation
before it is presented in its final form? For example, does the City
0177
Michael J. DePaul
August 28, 2008
Page 3
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Administrator receive any interim reports or updates, or is he
allowed to know which witnesses have been interviewed at any
point during the process? Is there a prohibition on employees or
others sharing information with the City Administrator, or with the
City Administrator receiving such information?
15. In a similar vein, are there restrictions on sharing information about
the investigation with the elected officials and with the City Cieri<,
Christie Miller, or any other former employees? Do you plan to
ensure that Christie Miller and Heidi Burch are not given
confidential information? If so, how?
16. Why did the City not initiate an investigation earlier? I sent the first
letter on Ms. Miller's behalf to the City on May 20, 2008. Why did
the City not initiate an investigation at the end of May?
17. What is the time span for the investigation?
18. Does the investigation include former employees, officers and
officials and issues involving their departure from City service? If
not, why not? If so, or if it is possible that the former officers,
officials, and employees will be included, how will the City ensure
confidentiality of former officers, officials, and employees?
19. Who, if anyone, represents Richard Guillen on the matters
asserted by Ms. Miller?
20. Would you please provide us with the resume and list of references
for Ms. Kramer, along with information detailing her assignments in
the past, her links(if any) to the City and/or to Liebert Cassidy, and
the terms of her contract?
We would appreciate hearing from you with as much information as you can
reasonably provide on this matter. Please consider the questions above to be broadly
stated questions and not narrow ones, and recognize Ms. Miller's request for full and
fair disclosure of these matters.
0178
Facsimile
(831) 373,0242
Michael J. DePaul
0
LAW OFFICES OF
MICHAEL W. STAMP
479 Pacific Street: Suite 1
Monterey. California 93940
September 10, 2008
0
Dear Mr. DePaul:
Telephone
(831) 373-1214
This letter is a summary of your responses to our inquiry of August 28, 2008,
concerning the investigation of Jane Miller's employment complaint.
Although your letter of September 4, 2008 discussed the investigation in general
terms, many questions remain unanswered. We would appreciate complete responses
from the City in the interests of full disclosure. Considering the sensitive nature of the
complaint, Ms. Miller's concerns need to be addressed and the questions answered.
Below is a list of-the questions asked in our letter of August 28, 2008, and the
responses received from your office. You did not answer the specific questions in the
order presented and did not match any specific answer to any specific question. We
have tried to match up your responses below, and request further follow up on them.
1. Whom do you represent? The City and Richard Guillen? The City but
not Mr. Guillen individually?
Your response was:
on behalf of City of Carmel-by-the-Sea, I am writing in response to your letter of
August 28, 2008 .... "
Follow up: Do you only represent the City?
2. Who has retained Ms. Kramer? You, Liebert Cassidy, the City
Council, the City Attorney, the City, or someone else?
Your response was:
... (T]he City has hired an investigator to conduct an independent investigation
into all of the issues raised in Ms. Miller's complaint."
0179
Michael J. DePaul
September 10, 2008
Page 2
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Follow up: Is it only the City that has retained Ms. Kramer? Ms. Kramer
indicated that you retained her. Please clarify.
3. What are the terms under which Ms. Kramer has been retained?
Your response was:
"[Tlhe investigator's role is to discover and interview relevant witnesses, review
documents, and prepare a written report of factual findings to be presented to the City.
The City will evaluate those factual findings to determine if any remedial action is
necessary and will notify Ms. Miller of the outcome of the investigation."
Your response is broad, but describes only some tasks assigned to Ms. Kramer,
not the actual terms under which she has been retained.
Follow up: Please provide a response to the question.
4. To whom is Ms. Kramer to report, and how and when? Who, if
anyone, at the City is coordinating the work of the investigator?
Your response was:
"[Tlhe investigator's role is to ... prepare a written report of factual findings to be
presented to the City. The City will evaluate those factual findings to determine if any
remedial action is necessary and will notify Ms. Miller of the outcome of the
investigation."
Your response only indicates that Ms. Kramer is to report to the City as an entity.
The chief administrative officer of the city is Mr. Guillen. Is the report to be sent to him?
You response is also silent on who, if anyone, at the City is coordinating Ms. Kramer's
investigation.
Follow up: Please answer the question fully. Please identify the entity(ies) or
person(s) to whom Ms. Kramer is to report. Please describe the scope of the
investigation, its time line, the procedures Ms. Kramer will use to arrive at the "factual
findings,' and what wil.l be the format of her written report.
0180
Michael J. DePaul
September 10, 2008
Page 3
0 0
5. What directions/instructions have been provided to Ms. Kramer by
the City, City Attorney, City Council, you and/or Liebert Cassidy?
Your response was:
"(T] the investigator's role is to discover and interview relevant witnesses, review
documents, and prepare a written report of factual findings to be presented to the
City .... Ms. Miller is requested to meet with the investigator ... ."
Your response provides general information. It does not answer the question of
Whether any specific directions or instructions were given to Ms. Kramer.
Follow up: Please provide a specific and detailed response.
6. What role(s), if any, do you and/or your firm and/or the City Attorney
play in regard to defining or determining the scope of the
investigation, conducting or monitoring it, or reviewing it?
Your response does not answer the question. Your response only stated that
the City takes complaints of this nature very seriously and is committed to preventing
discrimination, harassment and retaliation in the workplace and that "to that end, the
City has hired an outside investigator.
Follow up: Please provide a detailed and thorough response.
7. What assurances, if any, of confidentiality are being provided to
persons interviewed? What assurances, if any, of protection from
retaliation are being provided to persons interviewed? What
instructions and information are given to interviewees about the
investigation? What steps are to be taken to ensure the privacy of
Ms. Miller?
Your response was:
"In order to maintain confidentiality to the greatest extent possible, Ms. Miller ...
is requested not to discuss the content of her interview - in particular, the questions
asked, or the answers given -with any City employee or person who may have
information relevant to the subject of the investigation or the topics discussed in her
interview. Additionally, Ms. Miller, of course, has the right to appear with a
representative of her choice at her interview ....
You also responded by advising me to contact City Clerk Heidi Burch if I "believe
any retaliation or other improper actions have been taken towards [me]."
0181
Michael J. DePaul
September 10, 2008
Page 4
0 0
Follow up: As Ms. Miller is the complaining witness, she has understandable
concerns about confidentiality. You can be assured that she will act to protect her
confidentiality.
However, the question asks about the mf!asures taken by the City and
investigator to protect Ms. Miller's privacy and the privacy of other persons interviewed.
Allowing Ms. Miller to appear at the interview with a "representative" is the only measure
you discuss, and it is doubtful whether this measure is adequate to protect privacy.
You have not addressed the steps that the City and investigator will take to
protect the confidentiality of Ms. Miller and others. Your letter does not mention what
assurances will be provided to persons interviewed, or what measures will be taken to
protect interviewees from retaliation.
Please describe specific measures that will be taken to protect confidentiality and
to protect against retaliation. I should emphasize that I am not concerned about "any
retaliation or other improper actions being taken towards me, so I don't understand that
part of your letter.
8. Will elected officials be interviewed? Will the elected officials, or any
of them, have the right or opportunity to assert any claim of privilege
or confidentiality as to what they knew and when, or what they
discussed with the City Attorney, staff, or others?
Your did not provide a response.
Follow-up: Please provide a response.
9. What precisely is being investigated? (Your statement that
Ms. Kramer is to investigate "various harassment claims" is
imprecise and dismissive.)
Your response was:
"The City understands that Ms. Miller has made a series of allegations against
the City that include claims of harassment. retaliation, and age and gender
discrimination .... To that end the City has hired an outside investigator to conduct an
independent investigation into all of the issues raised in Ms. Miller's complaint."
Follow up: Please advise us as to what precisely is being investigated.
0182
Michael J. DePaul
September 10, 2008
Page 5
0
0
10. When the investigation is concluded, what happens to the report,
findings, notes, and investigation materials, including recordings
and memos of questions and answers?
Your response was:
"fllhe investigator's role is to ... prepare a written report of factual findings to be
presented to the City. The City will evaluate those factual findings to determine if any
remedial action is necessary and will notify Ms. Miller of the outcome of the
investigation."
Other than providing a general overview of the investigative process, your
response does not answer the question.
Follow up: Please be specific in providing a response.
11. Is this investigation initiated under, or being carried out pursuant to,
any specific City policy, DFEH or EEOC guideline, statute or case
law?
Your response was:
"The City takes complaints of this. nature very seriously and is committed to
preventing discrimination, harassment, and retaliation in the workplace. To that end, the
City has hired an outside investigator ... ."
Your response is general and does not answer the question.
Follow up: Please provide a response.
12. Is Ms. Miller or any other person required by the City to participate in
the investigation? If so, please fully explain.
Your response was:
" ... Ms. Miller is requested to meet with the investigator and respond candidly
and truthfully to the investigator's questions, provide all relevant documentation and
information, and identify and relevant witnesses."
Your letter did not respond as to whether Ms. Miller or any other person
interviewed was required to participate.
Follow up: Please answer the question.
0183
Michael J. DePaul
September 10, 2008
Page6
0
0
13. What rules, guidelines, standards, and procedures are being utilized
in the investigation?
You did not provide a response.
14. What access does the City Administrator have to the investigation
before it is presented in its final form? For example, does the City
Administrator receive any interim reports or updates, or is he
allowed to know which witnesses have been interviewed at any point
during the process? Is there a prohibition on employees or others
sharing information with the City Administrator, or with the City
Administrator receiving such information?
Follow up: Please provide a detailed answer.
15. In a similar vein, are there restrictions on sharing information about
the investigation with the elected officials and with the City Clerk,
Christie Miller, or any other former employees? Do you plan to
ensure that Ch.ristie Miller and Heidi Burch are not given confidential
information? If so, how?
16. Why did the City not initiate an investigation earlier? I sent the first
letter on Ms. Miller's behalf to the City on May 20, 2008. Why did the
City not initiate an investigation at the end of May?
17. What is the time span for the investigation?
0184
Michael J. DePaul
September 10, 2008
Page 7
0
0
18. Does the investigation include former employees, officers and
officials and issues involving their departure from City service? If
not, why not? If so, or if it is possible that the former officers,
officials, and employees will be included, how will the City ensure
confidentiality of former officers, officials, and employees?
Follow up: Please answer the questions.
19. Who, if anyone, represents Richard Guillen on the matters asserted
by Ms. Miller?
20. Would you please provide us with the resume and list of references
for Ms. Kramer, along with information detailing her assignments in
the past, her links (if any) to the City and/or to Liebert Cassidy, and
the terms of her contract?
You did not provide information about Ms. Kramer as requested in the question.
In your letter you suggested that we should contact Ms. Kramer directly. The fact that
Ms. Kramer was retained by your firm on behalf of the City leads to the conclusion that
you are familiar with Ms. Kramer and should be able to comment on her qualifications,
professional background and connections to the City and/or your firm.
Follow up: Please provide requested information about Ms. Kramer.
In the interests of full disclosure and fairness to all parties, we urge the City to
answer all of the above questions. If you do not have answers to these questions
because you have not addressed these concerns, we would like to work with you in
formulating a policy and procedure for the investigation. We would like to help the City
ensure that the investigation is productive and that the interests of Ms. Miller and other
witnesses are protected. We look forward to hearing from you.
Michael W. Stamp
0185
Facsimile
(831) 373-0242
Michael J. DePaul
0
LAW OFFICES OF
MICHAEL W. STAMP
Monterey, Califomia 93940
September 30, 2008
Dear Mr. DePaul:
0
Telephone
(831) 373-1214
Approximately one month ago, I wrote to you on behalf of Jane Miller. My letter
and a detailed follow-up letter asked several very important questions about the City's
handling of the claims submitted by Ms. Miller several months ago. The City has
provided no answers to most of the questions, and the City does not explain why it will
not answer the questions.
Your second letter, again stating for the second time that the City would not
respond to the questions, was received a few days ago. It states for the first time that
the investigation wiU be conducted "in accordance with" a portion of the City's
harassment policy, although it makes no effort to discuss the deviations from the
harassment policy to date.
It would have been more convenient for everyone if you had answered Ms.
Miller's questions about the process. Instead of providing the basic information, you
have chosen a different way of proceeding.
Ms. Miller is evaluating her options at this time. I will advise you as to her
intentions within the next two weeks.
cc: City Attorney
0186
0 0
. EXHIBIT K
0187
Facsimile
(831) 373-0242
0
',l'ia Fax and U.S. Mail
Richard C. Bolanos
LAW OFFICES OF
MICHAEL W. STAMP
January 12, 2009
153 Town send Street, Suite 520
Re: Jane Miller and City of Carmel-by-the-Sea
Dear Mr. Bolanos:
0
Telephone
(831) 373-1214
I have received your letter dated January 12, regarding the "investigation" that is
underway. At the same time, my client. Jane Miller, has received two direct
communications from Heidi Burch, where Ms. Burch makes certain demands and
representations on behalf of the City, some of which are retaliatory.
In your letter, you advise that your law firm's investigator has interviewed (to one
extent or another) eleven current City employees and one former employee. You do
. not disclose any of the contents of those interviews, nor do you explain why the
investigation has not included other persons that one would expect to see interviewed.
You do not disclose whether any documentary evidence has been reviewed, such as
the emails and other records identified in Ms. Miller's detailed letter to the City. Most
tellingly, you do not indicate that any earlier allegations of Mr. Guillen's inappropriate
behavior, favoritism, or inappropriate personnel actions have been investigated,
including any allegations made by female employees or male employees about the
favoritism displayed to Christie Miller. You also do not indicate that any non-City-
employees (past or present) have been interviewed, either about the Guillen-Christie
Miller or Guillen-Heidi Burch situations. You also do not show any interview of the City
Attorney or the City Council Members.
Your letter asks Ms. Miller to be interviewed. You made this request earlier, and
in my letters to you dated August 28, September 10, September 30, and October 17,
2008, I requested information about the "investigation" referenced in your most recent
letter. Copies are included for your reference. In each case, your law firm failed to
provide the information that we requested about the interview. I again urge you to
reconsider your position on working with Ms. Miller in good faith.
As for the direct contact with Ms. Miller by Ms. Burch, I do not understand what
the City hopes to accomplish with it. The evidence is overwhelming that Ms. Burch has
been the beneficiary of Mr. Guillen's actions, and that Ms. Miller has made claims about
that favoritism and about the role of Ms. Burch. Nevertheless, Ms. Burch has been
authorized by the City to act on behalf of the City in regard to Ms. Miller, to bypass
Ms. Miller's legal counsel, and to communicate directly with a represented party. It is
0188
Richard C. Bolanos
January 12, 2009
Page Two
0 0
hard to imagine a more inappropriate person to be designated to give orders and
impose deadlines on Ms. Miller. Once more, as I did with Mr. Guillen's attempt to
intimidate Ms. Miller back in May, I ask that the City not contact Ms. Miller directly.
also ask that Ms. Burch stop communicating directly with Ms. Miller.
Where does this leave us? The situation is deteriorating. Ms. Miller's options
have been limited by the long delays, including the months that passed before the City
even began an investigation, the City's refusal to accommodate Ms. Miller's leave
request, the absence of prompt and effective remedies, and the leaking of the situation
to the press.
In order to move this matter to its conclusion, Ms. Miller is willing to make a new
proposal: she is willing to authorize me to discuss matters with Ms. Kramer to see if we
can reach an accommodation on any of the issues that may be outstanding. The
discussion would be at my Offices in Monterey, and would be considered part of a
confidential, limited mediation of these issues. I would be willing to exchange some
information with Ms. Kramer on an appropriate basis, and she and I could discuss ways
of moving forward in a mutually satisfactory way. The details of such a meeting and
discussion would be arranged directly with Ms. Kramer.
I am authorized to give the City until January 20 to consider this proposal. If the
City needs more time to do so, please contact me this week. Please make sure to
provide this information to your clients.
Enclosures as noted
0189
- - - - - - - ~
1 Michael W. Stamp, Slate Bar No. 72785
2 lAW OFFICES OF MICHAEL W. STAMP
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 A t t o ~ for Plaintiff
6
7
8
9
SUPERIOR COURT OF THE STATE OF CAUFORNIA
COUNTY OF MONTEREY
10
11
12
Plaintiff,
v.
14 Defendants.
15
16
17 I
Case No. M99513
Complaint filed June 17. 2009
DECLARATION OF DOUGLAS J.
SCHMITZ
Date:
Time:
Dept.:
October 23, 2009
8:45a.m.
4
18 I, Douglas J. Schmitz, declare as follows:
19 I have personal knowledge of each of the facts stated below, and each of the
20 opinions stated in this Declaration are based upon my knowledge, experience, skill,
21 education and training. I could testify competently to each of the statements contained
22 In this Declaration.
23 1. I was City Administralor of the City of Carmel-by-the-Sea from
24 approximately 1983 to 1992.
25 2. During that time, I hired Michael Stamp for legal advice on personnel and
26 employment matters on infrequent occasions. As the appointing authority for City
27 personnel, I was the primary contact for the legal services provided by Mr. Slamp on
28
MIUERV. CnYOF CAAMEl-IIYll11!-SEA
CAsE NO. M99513
1
0190

1 personnel and employment matters. Other than with me, Mr. Stamp did not have
2 significant contact with the City's decision makers on City employment matters.
3 3. I did not hire Michael Stamp for any employment litigation. To the best of
4 my recollection, there was no employment litigation against the City during my tenure as
5 City Administrator. During the time when I was City Administrator, there were no claims
6 of discrimination or gender-based favoritism raised agaiMI the City Administrator.
7 4. From time to time, I asked Mr. Stamp to provide assistance on legal
8 issues relating to issues or employment law. l have no recolection of
9 providing any confidential information to him. other than such information as the name
10 or job performance factors of a specific employee.
11 5. From lime to time, the City adopted policies or ordinances. At my request,
12 Mr. Stamp sometimes provided infonnation about prevailing law or concepts of law
13 applicable to employment law subjects. The City's personnel offiCer prepared the initial
14 drafts of documents such as the personnel ordinance, other policies or ordinances, or
15 any proposed employment agreement Other policies of general application relating to
16 employment issues were handled the same way. I do not recall providing Mr. Stamp
17 with any confidential information in regard to his review or comment on any policy or
18 ordinance, and 1 do not believe that any such confidential information was provided to
19 him in that regard.
20 6. During the time that I was City Administrator, Donald Freeman was the
21 City Attorney. City Attorney Freeman reported directly to the City Council, and was the
22 City's chief legal officer. For the City had a retainer agreement with
23 the Uebert Cassidy law finn, which inclUded updates, reviews, training, and on-call legal
24 advice on specifiC The personnel relied upon or used Liebert Cassidy
25 publications and written materials in several instances. Mr. Stamp provided legal
26 services only when I authorized him to be engaged on a particular personnel matter.
27 He did not make personnel decisions or other policy decisioM relating to PefSOOnel.
28
Mlu.ERV. Crrv OF CAIWEL.eY-THE-SeA
CASE NO. M99513
2
DeCI.ARA T10N OF DouGLAS J. Sci-NJTZ
0191
1 7. During my tenure with the City, I was the chief decision-maker for the City
2 on personnel issues. I handled personnel matters based upon my professional training,
3 education and experience. No one who played any material or significant role in
4 making decisions on personnel matters during my time as City Administrator is now
5 employed by the City, or has been employed by the City in the past several years.
6 8. The City is a public agency. Because it is a public agency, the identity of
7 decision makers, the decision making process, the claims process, personnel policies.
8 ordinances, settlements, and the related documentation are all public information under
9 the laws of the State of California, and it was the policy of the City during my tenure to
10 treat such information as public information available to all.
11 9. 1 am familiar with the nature of the allegations made by Jane Miller in the
12 present case. I do not believe that Mr. Slemp was provided with or received any
13 confidential information from the City during my tenure with the City that had any
14 material relationship to anything raised in the Miller claims; including any confidential
15 information that would be material to the evaluation or prosecution of the Miller claims.
16 I declare under penalty of perjury that the foregoing is true and correct and that
17 this Declaration is executed under penalty of perjury under the laws of the State of
18 CaUfomia this 5 fa1. of October, 2009 In the City of Los Altos. CaUfomia.
19
20
21
22
23
24
25
26
27
28
MIU.IR V. CitY OF CAAMel. -BYTHE-8EA
CASE No. M99513
3
DEcLARATION OF DouGlAS J. SCtliGlZ
0192
10/83/2889 13:18
2 LAW OFACES OF MICHAEl W. STAMP
479 Paclftc Street, Suite One
3 Monterey, california 93940
Telephcme: (831) 3731214
4 Facslmfte: (831) 373-0242
5 Altomeys for Plaintiff
6
0
7
8
COUNTY OF MONTEREY
Case No. M99513
PAGE 81
DECLARATION OF JERRY PULLEN
Dale: October 23, 2009
Time: 8:45a.m.
Dept.: 4
18 I, Jerry Pullen, declare as follOWS:
19 I have personal knowledge of each of the facts staled below, and each of the
20 opinions slated in this Declaration are based upon my knowledge, experience, skYI,
22 in this Declaration.
23 1. I was City Personnel Officer of the City of carmel-by-the-Sea from
24 approximately 1984 to 1998. During my lime in that position, I woriced with two City
25 Administrators, Douglas Schmitz and Jere Kersnar, and for a short time with an acting
26 City Administrator.
27 2. lnfrequenUy during those years, I was authorized to retain Michael Slanlp
28 for legal advice on personnel and employment matters.
Mum! II. CITY OF C-EL-BVTHE-SI!A
CAsE No. M9$513
1
0193
l0/03/2BB9 13:lB PULLEN
0
PAGE B2
1 3. 1 did not work with Mr. Stamp on any employment litigation. To the best of
2 my recoHectlon, there was no employment litigation against the City during my tenure as
3 Personnel Officer. During the lime when I was Personnel Officer, there were no claims
4 of forced retirement. or claims of discrimination or gender-based favoritism raised
5 against any City Administrator or City administrative o r r ~ e e r .
6 4. For personnel matters, the City had a retainer agreement with lhe Liebert
7 Cassidy law firm, as did other public agencies In the Monterey Bay area who had joined
8 in a consortium of public agencies. The agreement with that law firm included
9 newsletters, updates, reviews, training, and on-call legal advice on specific matters.
10 ltebert Cassidy provided reguli'lr updates on personnelli'IW and policies. Mr. Stamp
11 provided legal services only when the City Administrator authorized him to be engaged
12 on a perlicular personnel matter. He did not make personnel decisions or other poHcy
13 decisions relating to personnel. In all eases, the City Administrator was the deci5ion
14 maker on personnel matters.
15 5. I recaA Mr. Stamp working with the City on the City's lay4 procedures
16 and ordinance in approximately 1993 or 1994. The City was in a budget crunch, and
17 needed to make layoffs. The procedure for doing so was adopted after a series of
18 meetings with the bargaining groups for the City employees, individual employees, staff.
19 and others. It was an open and public process. The adoption of the procedures and
20 ordinances was the product of many public meetings. I do not recal Mr. Stamp being
21 provided any confidential information in regard to the procedures and ordinance.
22 6. I recall consulting to a limited extent WJlh Mr. Stamp on two relatively
23 minor and routine personnel sltuaUons. Both involved maintenance-level City
24 employees who worked away from City Hall and who reported to persons outside City
25 HaU. None of the employees reported directly 1o the City Administrator. The maltels
26 were resolved. The only confidential Information in those situations were the names of
27 the employees and the nature of the disciplinary matters. Neither sltuation created any
28 precedent or policy for the City.
Mlu.eR v. Crrv OF CARMELBYTHE.SI:A
CAsE No. M9951J
2
0194
10/03/2009 13:10
PULLEN 0 PAGE 03
1 7. I recall taking the lead in drafting a City personnel ordinance more than 15
2 years ego, based In large part upon ordinances In place at other cities that were in the
3 consortium of cllles that were adVised by Liebert Cassidy. I was the person primarily
4 responsible for drafting that document. Mr. Stamp may have reeponded to a Umited
5 number of questions, based upon provisions that other cltle5 were using In their
6 ordinances, but I have no recoBeclion of providing any confidential Information to Mr.
7 Stamp in regard to the policy, and I do not believe that the City provided any
8 con6dential information to Mr. Stamp In regard to that process.
9 8. After I retired In 1998, Jane Miller took over as the City's personnel officer.
10 I recommended her for her posillon.
11 9. I am familiar with the nature of the allegations made by Jane Miller in the
12 present case. I do not believe that Mr. Stamp was provided with or received any
13 con6denliallnformatlon from the City during my tenure with the City that had any
14 material relatlonllhip to anything raised In the Miller claims. Including any confidential
15 information that would be material to the evaluation or prosecution or consideration of
16 the Miler claims ..
17 I declare under penalty of P81iury that the foregoing Is true and correcl and that
18 this is executed under penalty of peljury under the laws of the State of
19 California this :3 day of October, 2009, in . Washington.
20
21
22
23
24
25
26
27
28
MIUJ!ft V. Ci1Y OF CARMEI.flv-THll-sEA
CA&No.M99513
-fld;
3
0195
,
0
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
0
6
7
8
9
COUNTY OF MONTEREY
10
11
12
Plaintiff,
v.
14 Defendants.
15
16
17
18
Case No. M99513
DECLARATION OF
JANE KINGSLEY MILLER IN
SUPPORT OF OPPOSITION TO
CARMEL-BY-THE-SEA TO
Time: 8:45 a.m.
Dept: 4 (Hon. Larry E. Hayes)
19 I, Jane Kingsley Miller, declare as follows:
24
1. On July 16, 1999 I went to work at the City of Carmel-by-the-Sea as the
25 Personnel Specialist. The previous personnel officer for the City was Jerry Pullen, who
26 retired in 1998. My job duties included the responsibility for all personnel matters.
27
2. When I was hired, Jere Kersnar was City Administrator. When Mr.
28 Kersnar left the City in the fall of 2000, the City began to search for a new City
1
MILLER V. CITY OF CARMEL-BY-THE -SEA 0ECLARA TION OF JANE KINGSLEY MILLER IN SUPPORT OF
Mn U
0196
0
0
1 Administrator. The City hired Richard Guillen as an interim City Administrator, and
2 shortly thereafter, as permanent City Administrator.
3 3. In August 2003, f was reclassified as the Human Resources Manager for
4 the City. As the Human Resources Manager, I was the City's top personnel officer.
5 4. On April16, 2008, after I had served nearly nine years as the City's chief
6 personnel officer, Mr. Guillen informed me that he was eliminating my position.
7 5. During my time with the City of Carmel-by-the-Sea, I worked with the City
8 Attorney (Donald G. Freeman), and with other lawyers, including Richard Harray, Stan
9 Linker, and Jon Giffen on personnel matters.
10 6. For ongoing specialized personnel representation on issues such as the
11 review or creation of City policies, procedures and ordinances, as well as training, equal
12 opportunity law, and discrimination issues and day-to-day legal advice, I relied heavily
13 upon the legal services provided by the San Francisco firm of Liebert Cassidy Whitmore
14 ("Liebert Cassidy"). The City had a retainer agreement with Liebert Cassidy for
15 personnel matters and training. For example, Richard Whitmore of that firm reviewed
16 all City policies relating to the City's harassment policy as part of an audit/review which
17 the City paid for as part of its arrangement with Liebert Cassidy. During the time that I
18 worked for the City, no outside counsel other than Liebert Cassidy reviewed, revised,
19 rewrote, or proposed any amendments to any of the City's personnel policies and
20 ordinances.
21 7. During the time that I worked for the City, the City never relied upon the
22 Law Offices of Michael W. Stamp or Mr. Stamp for any reviews, revisions, rewriting or
23 amendments to such policies. I never contacted Mr. Stamp for any work relating to
24 those matters, or for day-to-day personnel issues.
25 8. In 2001, I contacted Mr. Stamp on behalf of the City to facilitate the
26 process (paperwork) regarding issues involving one employee who did not report
27 directly to City Hall. This matter did not involve litigation, but required some legal
28 assistance to resolve, in conjunction with coordination of a workers' compensation
CASE No. M99513
2
DECLARATION OF JANE KINGSLEY MILLER IN SUPPORT Of
0197
0
0
1 matter. The matter was resolved. There is nothing about that case that relates to the
2 current case. I was Mr. Stamp's chief contact on this matter.
3 9. In working on that case, I provided no confidential information to Mr.
4 Stamp, other than the specific factual issues relating to the disciplinary issues of that
5 particular employee. To the best of my knowledge, Mr. Stamp did not obtain any
6 information about any secret or confidential manual, policy, set of criteria, or other
7 confidential material, and no such materials exist.
8 10. The information provided to Mr. Stamp relating to the matter came
9 primarily from me and from our workers' compensation attorney and investigator. At the
10 conclusion of the case in early 2002, Mr. Stamp wrote to the City and advised the City
11 that he was not willing to be retained by the City in the future. In response to that letter
12 from Mr. Stamp, I began to search for, and secure, local legal services from other legal
13 counsel who would be available to handle personnel matters. I also continued to use
14 Liebert Cassidy on the retainer agreement and on all day-to-day matters.
15 11. To the best of my knowledge, there is no relationship of any kind between
16 that disciplinary matter on which Mr. Stamp advised me at times in 2001 and early 2002
17 and my present case.
18 12. The City argues on page 7 of the disqualification motion thatthere is a
19 "medical claim" in paragraph 50 of the Complaint I filed, and that the "medical claim"
20 relates to an issue in the personnel matter that Mr. Stamp worked on for the City with
21 me. The "medical claim" referred to in paragraph 50 has no relationship to any claim
22 made by any person during my tenure with the City. In the present case, the issue of
23 "medical" matters is referenced in paragraph 50 of the Complaint, and it relates to the
24 work relationship that I had with Mr. Guillen, not to anyone else's medical claims. In
25 October 2007 I asked for routine authorization to use leave time to care for a family
26 member, which is authorized under the Family Medical Leave Act (FMLA). My request
27 for leave was challenged by Mr. Guillen, who, instead of first asking me, directed City
28 staff to contact Cynthia O'Neill, an attorney at Liebert Cassidy. In the specific context of
CASE No. M99513
3
DECLARATION OF JANE KINGSLEY MILLER IN SUPPORT OF
0198
0
0
1 my employment with the City, Mr. Guillen's actions singled me out, embarrassed and
2 ostracized me in the workplace. In any event, the legal requirements of FMLA are
3 matters of public knowledge, are widely available, and are regularly briefed in the media
4 and online.
5 13. When I discovered in April 2008 that City Administrator Guillen intended
6 to terminate my services, eliminate my position, and force me from City service, I
7 contacted Mr. Stamp to represent my interests in regards to the termination. I knew he
8 had done no work for the City for at least five or six years.
9 14. Most significantly, I also knew that between 2003 and 2008, Mr. Stamp
10 had represented four former City employees who were seeking compensation from the
11 City. All four employees represented by Mr. Stamp were about my age and all were
12 longtime City employees who had become disfavored by City Administrator Guillen.
13 15. During Mr. Guillen's negotiations with Mr. Stamp in regard to those four
14 employees, I never heard any comment or claim by Mr. Guillen or anyone else that Mr.
15 Stamp had any conflict or confidential information in regard to any prior work or
16 anything else. Mr. Guillen spoke quite often about Mr. Stamp's role on behalf of the
17 four senior City officials, and commented to me about Mr. Stamp's work on behalf of his
18 private clients.
19 16. During that same time period, I also worked with the City Attorney and
20 with Liebert Cassidy on a regular basis and I never heard any of them raise any issue
21 about any conflict. Simply stated, no one ever stated, suggested, or implied there was
22 any conflict, and the Mayor, Council, City Attorney and Mr. Guillen all knew that Mr.
23 Stamp was representing the former employees from 2003 to 2008. Mr. Guillen
24 repeatedly told me during that time period that Mr. Stamp had asserted claims against
25 the City on behalf of the four senior employees, that Mr. Guillen had negotiated with Mr.
26 Stamp on those claims, that Mr. Stamp and Mr. Guillen discussed proposals for
27 compensation on behalf of the four senior employees, and that the negotiations were
28 serious and led to agreements that resulted in very significant amounts of
CASE NO. M99513
4
DECLARATION OF JANE KINGSlEY MILlER IN SUPPORT OF
OPPOSITION TO MOTION TO DISQUAliFY PLAINTIFF'S CoUNSEl
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1 compensation and benefits being paid to Mr. Stamp's clients. In regard to Mr. Stamp's
2 negotiations on behalf of the third of those four employees, Mr. Guillen asked me to
3 calculate the cost to the City of the compensation involved in the earlier settlements as
4 well as the cost of the third employee's demands. The total amount of negotiated
5 compensation paid by the City for the first four of Mr. Stamp's clients exceeded
6 $500,000.
7 17. In May 2008, Mr. Stamp agreed to represent me in my claims, and on
8 May 20, 2008 he wrote a demand letter to the Mayor and City Council. I have reviewed
9 all of the correspondence and all of the legal pleadings in this case. I never read or
10 heard a word about any claim of conflict until I was notified shortly after September 2,
11 2009 that the disqualification motion had been filed.
12 18. For more than 16 months, I have been working on this case with Michael
13 Stamp as my attorney. We have spent considerable hours and days discussing
14 strategies, negotiations, and approaches to the lawsuit I have now filed against the City.
15 I have relied on Mr. Stamp as my attorney, confidant and advisor. I have paid him
16 thousands of dollars in attorney fees from my retirement savings to represent my
17 interests and pursue justice in this case, and he also has provided a great deal of work
18 at no charge to me. I have provided him with voluminous information regarding the
19 particulars of the case, and have prepared extensive histories of events and actions in
20 preparation for his use in depositions and trial. We have exchanged many phone calls
21 and emails. I understand that he and his Office have put hundreds of hours into this
22 case, that he has consulted with experts, and that he has developed a litigation strategy
23 of considerable complexity. He has become intimately familiar with, and knowledgeable
24 about, my case. I know of no other attorney who would be able to represent me at this
25 time with the appropriate level of ability, experience, training, and skill.
26 19. Mr. Stamp's knowledge of this case comes in significant part from the
27 information I have given him, not from any information that he received from the City of
28 Carmel-by-the-Sea. After receiving the motion for disqualification, I have spent a
MILLER V. CITY OF CARMEL -BY-THE SEA
CASE NO. M99513
5
OPPOSITION TO MOTION TO DISQUALIFY PlAINTIFF'S COUNSEL
0200
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1 considerable amount of time trying to imagine what confidential information that he or
2 anyone else could have obtained from the City that would be of any assistance of any
3 kind in this case. I have concluded, based upon my training, background, and
4 experience in Human Resources, as a public officer, and as an employee of the City
5 that there is no confidential information that Mr. Stamp could have obtained that would
6 assist in this case. I am very familiar with the allegations made in the Complaint in the
7 present case. Mr. Stamp was not provided with, nor did he receive any confidential
8 information from the City during my tenure with the City that had any material
9 relationship to anything raised in this case, including any confidential information that
10 would be material to the evaluation or prosecution or consideration of the claims ..
11 20. I am acquainted with the work of many of the attorneys in Monterey
12 County, based on my career in public service, my husband's career in law enforcement,
13 and various other ties to the local legal community. There is no other attorney in
14 Monterey County with whom I feel as comfortable as with Michael Stamp, due to our
15 personal and professional relationship. There is no other attorney in whom I could
16 possibly have greater confidence. I have made a significant investment in time. money,
17 and information exchange in our professional relationship. A forced change of counsel
18 at this point in time would be costly, emotionally devastating, and extremely prejudicial
19 to my case. The disqualification would leave me unable to find a lawyer with the
20 expertise necessary to handle my claim, and who would be able to take the case on a
21 contingency or a partial contingency. The effect of the disqualification would be to
22 make it impractical, or impossible, for me to continue with my claims. I respectfully
23 request that I be allowed to retain the attorney of my choosing, Michael Stamp.
26 California this Jlh day of October, 20Q9, in Monterey, California.
27
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CASE No. M99513
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Telephone: (831) 373-1214
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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF MONTEREY
19 I, Michelle A. Welsh, declare as follows:
20 l have personal knowledge of each of the facts stated below, and each of the
24
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1.
2.
I am an attorney licensed to practice law in the State of California.
For the past 30 years, I have practiced primarily in the Central California
26 legal community. I maintain memberships with the Monterey County Bar Association,
27 the National Employment Lawyers Association, the California Employment Lawyers
28 Association, the Employment Law Section of the State Bar of California, and the
1
MILLERV. CITY OF CARMEL-BY-THE-SEA DECLARATION OF MICHELLE A WELSH IN SUPPORT OF
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1 California Women Lawyers Association. I also teach Employment and Constitutional
2 law at Monterey College of Law in Seaside, California.
3 3. I have extensive experience in the California Superior Court system
4 representing employees. AHhough I represent employees in age-based and sex-based
5 discrimination cases, I am one of very few attorneys in Monterey County who do so.
6 The number of persons in this County seeking such representation far exceeds the
7 capacity of the local Bar to handle these cases.
8 4. Discrimination cases of the nature of this case are expensive, time-
9 consuming, and diffiCult. They require plaintiffs' attorneys who are experienced, and
10 who are able and willing to devote large blocks of time to prosecute the cases. A large
11 amount of time in such matters is spent in the investigation, analysis, and work-up of
12 the case even before it is filed. The decision whether to pursue a discrimination claim
13 against a public entity, individual, or business entity involves a serious and important
14 commitment by the lawyer and the client jointly to spend the time and money necessary
15 to work together on the matter. The decision to proceed always involves serious
16 commitments of time, money, and effort by both the attorney and the client.
17 5. The retention of counsel in an employment case in Monterey County is a
18 particularly important decision, particularly where the employee no longer is working
19 and where the defendant has significant resources to spend on legal counsel, because
20 there is such a small pool of attorneys able and willing to take such cases in Monterey
21 County or on the Central Coast. These types of cases are very time-consuming and
22 demanding, both upon the client and the attorney. In order to take a case such as the
23 present one, the attorney must be aware of the commitment and risk involved, have
24 sufficient assets and staff to handle the protracted litigation. and be able to devote the
25 time and resources necessary to develop and implement an appropriate strategy and
26 prosecute the claim under the difficult and oftentimes tense and stressful circumstances
27 of employment matters. It is very common for the client in an employment case to
26 come to depend upon the attorney not only to handle the case. organize the documents
Mll.l.ERV. CITY OF CARMEL-BY-THE-SEA
CAse No. M99513
2
DECI.ARATIONOF MicHELLE A. WELSH IN SUPPORT Of
0203
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1 and witnesses, and develop a suitable litigation strategy, but to work closely with the
2 client during times that the client is emotionally distraught and suffering financially. For
3 the client to lose her counsel in the midst of an employment claim most likely would be
4 devastating to the client on several levels: financial, emotional, and health-wise.
5 6. I have long been and am now familiar with the work of Michael Stamp in
6 employment litigation in Monterey County. Mr. Stamp has extensive experience in the
7 representation of public employees in particular, and he has been involved in this field
8 for more than 20 years. He has an outstanding reputation in this field, and has
9 represented several high profile public agency employees and officers in employment-
10 related cases over the past two decades.
11 7. Mr. Stamp has told me that he expended more than 200 hours of work
12 and another 240 hours of staff (primarily paralegal) time from the time he first wrote to
13 the City to assert a claim on behalf of his client (May 20, 2008) and the date that the
14 City first raised a claim of disqualifiC8tion more than 15 months later (September 2,
15 2009). He also informs me that he represented four other senior City employees
16 between 2002 and 2008 in claims against the City, all without objections by the City,
17 and that the City paid significant amounts of compensation to settle those claims.
18 8. The City's nearly 7 -year delay in asserting the alleged disqualification
19 grounds is extraordinary, as is the 15 months between the time Ms. Miller first asserted
20 her claim and the time the City first raised the issue of disqualification. These delays
21 and the disqualification claims are extraordinarily prejudicial to Jane Miller, because she
22 has invested time and money in her case, and because the delays and cost would
23 make it essentially impossible for her to obtain qualified and competent counsel to
24 proceed with her lawsuit if the City's disqualification claim took effect.
25 9. I do not know of any attorney in Monterey County who would be qualified
26 and able to take over this case at this time under these circumstances and provide the
27 level of representation currently being provided to Ms. Miller. In addition to the issue of
28 competence, experience, and the amount of work done so far is the financial difficulty
MIUER v. CITY Of CARMELBYTHESEA
CAse No. M99513
3
DECLARATION OF MICHELLE A W e ~ S H IN SUPPoRT Of
OPPOSmON TO MOTION TO OISQIJAUFY PLAINTIFF'S COUNSa
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1 that disqualification at this stage would cause to Ms. Miller, and which would severely
2 burden and handicap Ms. Miller and any potential counsel from San Jose or the Bay
3 Area who might even consider taking over the representation of Ms. Miller at this stage.
4 Out-of-area counsel would be at a great disadvantage at this time and at this stage of
5 the proceedings, even if Ms. Miller were able to secure such counsel.
6 10. I declare under penalty of perjury that the foregoing is true and correct
7 and that this Declaration is executed under penalty of perjury under the laws or the
8 State of California this .k:_ day of October, 2009, in Monterey, California.
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MUER V. CitY OF CAAMEL-I!Y-l'HE..SEA
CASE No. M99513
MichelleA Welsh
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DECLARATION OF MICHELLE A WELSH IN SUPPORT OF
Oi'PoSITION TO MOTION TO DISQUALIFY PLI\INTIFF'S CollflsEL
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2 lAW OFFICES OF MICHAEL W. STAMP
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
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COUNTY OF MONTEREY
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Plaintiff,
v.
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Defendants.
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18 I, Jere A Kersnar. declare as follows:
Case No. M99513
DECLARATION OF JERE A. KERSNAR
Time: 8:45 a.m.
Dept.: 4
20 opinions stated in this Declaration are based upon my knowledge, experience. skill,
23 1. I was City Administrator of the City of Carmel-by-the-Sea from
24 approximately 1993to 2000.
25 2. During that time, the law firm of Liebert Cassidy was on retainer to the City
26 for personnel issues. That law firm was the principal legal firm for the City on personnel
27 issues. and the City relied upon that firm. I also relied at times upon Donald Freeman,
28 City Attorney, and his Office staff.
MilLER V. Cr!Y OF CARMaBY THESEA
CASE NO. M99513
1
DECLARATION OF JERE A. KERSNAA
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1 3. Michael Stamp may have been retained for legal advice on a personnel
2 disciplinary matter handled primarily by the City's personnel officer, Jerry Pullen. The
3 matter related to an employee who did not work at City Hall, and who reported to
4 persons outside City Hall. I do not recall providing Mr. Stamp with any confidential
5 information relating to City policies, practices, actions, or anything else.
6 4. I did not hire Michael Stamp for any employment litigation. To the best of
7 my recollection, there was no employment litigation against the City during my tenure as
8 City Administrator. During the time when I was City Administrator, there were no claims
9 of forced retirement, and there were no claims of discrimination or gender-based
10 favoritism raised against the City Administrator or anyone in administration.
11 5. From time to time, the City adopted policies or ordinances. During the
12 time that I was City Administrator, Donald Freeman was the City Attorney. City Attorney
13 Freeman reported directly to the City Council, and was the City's chief legal offtcef.
14 6. During my tenure with the City, I was the chief decision-maker for the City
15 on personnel issues. I handled personnel matters based upon my professional training,
16 education and experience. No one who played any material or signifacant role in
17 making decisions on personnel matters during my time as City Administrator is now
18 employed by the City, or has been employed by the City in the past several years
19 except Jane Miller, who was hired in approximately 1999.
20 7. The City is a public agency. Because It is a public agency, the identity of
21 decision makers, the decision making process. the claims process, personnel policies,
22 ordinances, settlements. and the related documentation are all public information under
23 the laws of the State of California, and it was the policy of the City during rny tenure to
24 treat such information as public information available to all.
25 8. I am familiar with the nature of the allegations made by Jane Miller in the
26 present case. I do not believe that Mr. Stamp was provided with or received any
27 confidential information from the City during my tenure with the City that had any
28 material relationship to anything raised in the Miller claims, including any confidential
MilLER V. CITY OF CARMeL-BY-THE-SEA
CASE NO. M99513
2
DECI.ARATION OF JERE A. KERSNAR
0207
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1 infonnation that would relate in any way to the evaluation or prosecution of the Miller
2 claims.
5 California this 5_ ~ o f October, 2009 in the City of Ojai, California.
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MilLER V. CllY OF CAAMEL-6Yll1ESEA
CASE No. M99513
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Jere A. Kersnar
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0eCl.AAATIOH OF JERE A. KERSNAR
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Michael W. Stamp, State Bar No. 72785
Telephone: (831) 373-1214
Facsimile: (831) 373-0242
Attorneys for Plaintiff
COUNTY OF MONTEREY
Case No. M99513
CERTIFICATE OF SERVICE
Time: 8:45a.m.
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PROOF OF SERVICE 1
2 STATE OF CALIFORNIA, COUNTY OF MONTEREY
3 I am employed in the County of Monterey, State of California. I am over the age
of 18 and not a party to the within action. My business address is 479 Pacific Street,
4 Suite One, Monterey, California 93940.
5 On October 8, 2009, I served the foregoing documents described as follows:
6 MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF OPPOSITION TO MOTION BY DEFENDANT CITY OF
8 EVIDENTIARY OBJECTIONS TO DECLARATION OF HEIDI BURCH SUPPORTING
10 DECLARATION OF MICHAEL W. STAMP IN SUPPORT OF OPPOSITION TO
MOTION BY DEFENDANT CITY OF CARMEL-BY-THE-SEA TO DISQUALIFY
11 PLAINTIFF'S COUNSEL
12 DECLARATION OF MICHELLE A. WELSH IN SUPPORT OF OPPOSITION TO
14 DECLARATION OF JANE KINGSLEY MILLER IN SUPPORT OF OPPOSITION TO
16 DECLARATION OF JERRY PULLEN
17 DECLARATION OF DOUGLAS J. SCHMITZ
18 DECLARATION OF JERE A. KERSNAR
19 on the parties in this action as follows:
20 (X ) by sending via Federal Express for next day delivery.
21 Suzanne Solomon
22 153 Towns end St Ste 520
23
24 Executed on October 8, 2009, at Monterey, California. I declare under penalty of
perjury under the laws of the State of California that the above is true and correct.
25
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CASE No. M99513
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Olga Mikheeva
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Telephone: (415) 512-3000
Facsimile: (415) 856-0306
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FILED
OCT 1 3 2009
CONNIE MAZZEI
CLERK OF 1HE SUPERIOR COURT
M. PUS LEY DEPU1Y
COUNTY OF MONTEREY
SALINAS DIVISION
Plaintiff,
V.
Defendant.
Case No. M99513
REPLY BRIEF SUPPORTING MOTION
BY DEFENDANT CITY OF CARMEL-BY-
THE-SEA TO DISQUALIFY PLAINTIFF'S
COUNSEL
Date:
Time:
Dept:
Judge:
October 23, 2009
8:45a.m.
4
Hon. Larry E. Hayes
REPLY BRIEF SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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TABLE OF CONTENTS
Page
INTRODUCTION .............................................................................................................. I
THE COURT MAY NOT INQUIRE INTO WHETHER MR. STAMP
ACTUALLY OBTAINED THE CITY'S CONFIDENTIAL INFORMATION ................ I
MR. STAMP DOES NOT DENY REPRESENTING THE CITY ON THE
PREVIOUS PERSONNEL MATTERS OUTLINED IN THE CITY'S BRIEF ................ 3
A. Stamp's 1991 Advice On the City's Sexual Harassment Policy ............................ 3
B. Stamp's 2001-2002 Handling of An Employee Discipline MaUer Involving
Inappropriate Treatment of Female Subordinates ................................................... 4
C. Stamp's 1985 Advice About the City's Personnel Ordinance ................................ 4
D. Stamp's Handling of 1998-1999 Employee Discipline Matter Involving
Medical Leave ......................................................................................................... 5
E. Plaintiff's Protestations About the Strength of the City's Evidence Are
Disingenuous ........................................................................................................... 5
F. Plaintiff's Legal Authorities On the Substantial Relationship Test Are
Inapposite ................................................................................................................ 6
THE COURT MAY NOT CONSIDER WHETHER DISQUALIFICATION
WOULD PREJUDICE PLAINTIFF BECAUSE THE OVERRIDING PRINCIPLE
IS THE CITY'S RIGHT TO PRESERVE ITS CONFIDENTIAL INFORMATION ........ 7
THE DOCTRINE OF LACHES DOES NOT APPLY HERE ........................................... 8
A. PlaintiffHas Unclean Hands ................................................................................... 8
B. This Motion Was Filed Less Than Three Months After the Lawsuit Was
Filed ........................................................................................................................ 9
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1 TABLE OF AUTHORITIES
2
3
Cases
4
Brand v. 20th Century Ins. Co.
(2004) 124 Cai.App.4th 594 ........................................................................................................ 4
5
Farris v. Fireman's Fund Insurance Company
6
(2004) 119 Cai.App.4th 671 .................................................................................................... 2, 4
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Faughn v. Perez
(2006) 145 Cal.App.4th 592 ........................................... , ............................................................ 6
8
Flatt v. Superior Court
9
(1994) 9 Cal. 4th 275 ................................................................................................................... 2
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International Federation v. Sup. Court
(2007) 42 Cal.4th 319 .................................................................................................................. 7
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Jessen v. Hartford Casualty Insurance Company
(2003) Ill Cal.App.4th 698 ....................................................................................................... 2
Machado v. Sup. Ct .
(Atherton) (2007) 148 Cal.App.4th 875 ..................................................................................... I 0
Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft
(1999) 69 Cal.App.4th 223 .......................................................................................................... 6
J
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River West Inc. v. Nickel
( 1987) 188 Cal.App.3d 1297 .................................................................................................... 7, 9
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Styles v. Mumbert
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(2008) 164 Cal.App.4th 1163 ..................................................................................................... 7
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Zador Corp v. Kwan
( 1995) 31 Cal.App.4th 1285 ..................................................................................................... 10
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Statutes
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Civil Code 3517 ............................................................................................................................ 8
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Rules
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Cal. Practice Guide: Professional Responsibility (The Rutter Group 2005) Conflicts of Interest, 'If
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4:318 ................. '' ........................................................................................................................ 10
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I. INTRODUCTION
Plaintiffs opposition is most notable for what it does not say: Mr. Stamp does not deny
that he advised the City about the sexual harassment po !icy on which Plaintiffs claims are based.
Nor does he deny that he represented the City in several other personnel matters over a 17-year
period, including investigations and discipline relating to employee accusations of gender-based
conduct. Mr. Stamp merely offers his own declaration and that of former City employees stating
that they do not recall Mr. Stamp receiving confidential information while he represented the
City. That's not good enough. The Court may not inquire into the actual state ofMr. Stamp's
knowledge in applying the "substantial relationship" test.
Mr. Stamp, in order to deflect the Court's attention from his own manifest and glaring
ethical breach, asserts a convoluted, meritless laches argument that is as inconsistent with the law
as it is nonsensical. This motion is timely because it was filed less than three months after
Plaintiff filed this lawsuit. Though Plaintiff claims that events occurring before this lawsuit
somehow triggered the City's obligation to assert a conflict, no legal authority supports that
proposition. Mr. Stamp is akin to a person who, having killed his parents, complains to the court
about being an orphan. Mr. Stamp created this situation by suing his former client without
obtaining the required consent.
Finally, Mr. Stamp requests that the Court consider the effect disqualification would have
on Plaintiff. However, the Court may not engage in a balancing test here. Mr. Stamp's shifting
loyalties violate the firmly entrenched fiduciary nature of the attorney-client relationship. Mr.
Stamp must be disqualified from this litigation, regardless of the effect on Plaintiff. Any other
decision would not only cause the City to lose protection of its confidential information, but
would violate the integrity of the judicial process.
II.. THE COURT MAY NOT INQUIRE INTO WHETHER MR. STAJ\-IP ACTUALLY
OBTAINED THE CITY'S CONFIDENTIAL INFORMATION
This Court may not inquire into whether Mr. Stamp actually obtained the City's
confidential information. Jessen v. Hartford Casualty Insurance Company (2003) I II
Cai.App.4th 698,710-71 I. The Court's inquiry is limited to comparing the subject matters of this
REPLY BRJEF SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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confidential infonnation. Jessen v. Hartford Casualty Insurance Company (2003) Ill
Cal.App.4th 698,710-711. The Court's inquiry is limited to comparing the subject matters of this
case and the fonner matters in which Mr. Stamp represented the City and detennining whether a
substantial relationship exists between them. If a substantial relationship exists, the Court
presumes that Mr. Stamp received confidential infonnation material to this matter. Flatt v.
Superior Court (1994) 9 Cal. 4th 275, 283.
Though Plaintiff does not dispute this rule, Plaintiff's arguments and supporting
declarations consist mostly of Mr. Stamp and others declaring that they do not recall Mr. Stamp
receiving confidential infonnation. It is improper for a court to consider such information, and
trial courts that have done so have been reversed for abuse of discretion. Farris v. Fireman's
Fund Insurance Company (2004) 119 Cal.App.4th 671,681, fn 7 ("We again highlight the
impropriety of any inquiry into, or evidence about, the actual state of the lawyer's knowledge in
evaluating whether there is a substantial relationship between the compared representations.")
The plaintiff in Farris v. Fireman's Fund was suing for bad faith and breach of an
insurance contract The plaintiffs counsel had previously represented Fireman's Fund in
insurance coverage matters for 13 years and had issued formal coverage opinions, given informal
advice, and handled the litigation of coverage disputes and bad faith cases. !d. at 677. The
plaintiff's counsel did not deny that he had done the work; instead, he argued that the work ''was
restricted to the analysis of the facts and circumstances particular to the specific claims." !d. at
678. He told the trial court, "I'm not aware of any confidential infonnation that I ever obtained
from Fireman's Fund that I can use against Fireman's Fund in this case." !d. at 683, fn 9. Based
on that and other information, the trial court denied Fireman's Fund's motion to disqualifY,
finding that the "services perfonned" by the attorney were not substantially related to the
litigation. The appellate court reversed, finding that, by entertaining evidence about the lawyer's
actual knowledge, "the trial court was in essence asking Fireman's Fund Insurance Company to
reveal the specific confidential infonnation that (the attorney] had in his possession that could be
used to Fireman's Fund's disadvantage in this case. As we articulated in Jessen, this type of
inquiry is outlawed." !d. at 683, fn 10. The Court went on to explain that under the "substantial
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REPLY BRlEF SUPPORTING MOTION TO DISQUALFIY PLAINTIFF'S COUNSEL
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[l]t is not the services perfonned by the attorney that detennine whether
disqualification is required, it is the similarities between the legal problem
involved in the fonner representation and the legal problem involved in
the current representation. The test has never been the identity of the
specific tasks the attorney was asked to perfonn in either representation.
Here, Plaintiffs opposition to this motion consists entirely of these improper assertions.
To cite just one of many examples, regarding an employee discipline matter that Mr. Stamp
handled for the City in 1998 and 1999, Mr. Stamp declares, "I learned nothing confidential in
regard to that matter other than the information necessary to resolve the specific employee
situation ..... I learned nothing that ... would assist me in any way in the ... handling of [this
case]." (Stamp Decl.1 25 at 10:22-11 :2.) The Court may not consider this evidence in applying
the "substantial relationship" test.
III. MR. STAMP DOES NOT DENY REPRESENTING THE CITY ON THE
PREVIOUS PERSONNEL MA TIERS OUTLINED IN THE CITY'S BRIEF
Mr. Stamp does not dispute that he previously represented the City over a 17-year period
in multiple personnel matters. Nor does Plaintiffs brief offer any argument that the previous
personnel matters Mr. Stamp handled for the City are not substantially related to this action.
A. Stamp's 1991 Advice On tbe City's Sexual Harassment Polley
Mr. Stamp does not deny that he advised the City on its sexual harassment policy in 1991.
(Stamp Dec!., 1 23, at 9: 24-26.) Instead, he says he does not recall working on it. !d. His
recollection is irrelevant because the City has a letter that Mr. Stamp wrote to then Personnel
Director Jerry Pullen, copying then-City Manager Doug Schmitz, enclosing the City's harassment
policy with Mr. Stamp's handwritten comments on and revisions to the policy, in response to
someone's handwritten questions on the policy. It is therefore beyond dispute that Mr. Stamp
advised the City on the exact same policy that is central to this sexual harassment lawsuit.
Instead, Plaintiff simply submits the vague declaration of fonner City Manager Doug
Schmitz stating that he does not recall providing any confidential infonnation to Mr. Stamp in
regard to Mr. Stamp's review of"any policy." (Schmitz DecL, 1 5.) Schmitz's testimony, in
addition to being contradicted by the above-mentioned Jetter to Schmitz, is off point, because the
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regard to Mr. Stamp's review of"any policy." (Schmitz 5.) Schmitz's testimony, in
addition to being contradicted by the above-mentioned letter to Schmitz, is off point, because the
Court may not inquire into whether Mr. Stamp received confidential information.
On this basis alone, Mr. Stamp must be disqualified. He does not argue that his previous
advice to the City about the sexual harassment policy does not bear a substantial relationship to
this sexual harassment lawsuit, and any such argument would be ludicrous. The two matters
involve not just the same subject matter, but the very same policy. Mr. Stamp's limp "I don't
recall" defense is no defense at all. There is no "I don't recall" exception to Rule 3-31 O(E), nor
does the passage of time subvert the conflict. Brandv. 2dh Century Ins. Co. (2004) 124
Cal.App.4th 594, 607 ("Neither [attorney's] professed failure to recall ... his representation ...
nor the passage of 12 years since he directly represented [client}" could defeat motion to
disqualify).
B. Stamp's 2001-2002 Handling of Au Employee Discipline Matter Involving
Inappropriate Treatment of Female Subordinates
Plaintiff admits that Mr. Stamp represented the City in this previous matter and that it
involved discipline of an employee. (Miller Decl., 8-11; Stamp 26). Neither of them
deny that the discipline involved allegations that a male employee was mistreating female
subordinates. !d. Plaintiff's brief does not argue that the 2001-2002 employee discipline matter
has no substantial relationship to the instant action. Instead, Plaintiff and Mr. Stamp simply
assert that the only confidential information Mr. Stamp received during that representation was
what he needed to handle that matter (Miller 9; Stamp 26.), evidence the Court
may not consider, pursuant to Farris v. Fireman's Fund, supra.
C. Stamp's 1985 Advice About the City's Personnel Ordinance
Mr. Stamp does not deny that he advised the City in 1985 about its Personnel Ordinance,
including advice regarding compensation, selection and appointment of employees, medical
leave, disciplinary proceedings, grievance resolution and performance evaluation. (Burch Decl.,
4.) Instead, Mr. Stamp states that he did not draft it. (Stamp 16.) No one is claiming
that he drafted the ordinance; the fact is, he provided legal advice about it. (Burch 4.)
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Plaintiffs brief does not argue that Mr. Stamp's advice regarding the personnel ordinance
is not substantially related to this case. Stamp's prior advice on the ordinance is substantially
related to this lawsuit, because Plaintiff alleges that the City Administrator did not follow
required procedures in selecting and appointing employees, in evaluating their performance, and
in determining their compensation.
Again, Mr. Stamp offers no excuse for suing his former client on the very policy about
which he gave advice. Instead, Jerry Pullen declares that he himself drafted the ordinance (which
is irrelevant) and that Stamp just answered his questions about it. (Pullen Dec!.,, 7). Mr. Pullen
goes on to offer his opinion that Mr. Stamp did not receive confidential information, which again
is prohibited evidence. (Pullen Dec!., 1 5.) Mr. Schmitz purports to offer the same type of
prohibited evidence, while also admitting that Mr. Stamp regularly advised him about
employment law subjects. (Schmitz Decl., ,5.)
D. Stamp's Handling of 1998-1999 Employee Discipline Matter Involving Medical
Leave
Once again, Mr. Stamp admits he handled this matter for the city and that it involved
medical leave. (Stamp Dec!.,, 25.) Plaintiffs brief does not argue that the 1998-99 matter is
not substantially related to the instant action. Instead, Mr. Stamp again offers prohibited
testimony asserting that the only confidential information he received was what he needed to
handle the matter. !d.
E. Plaintifrs Protestations About the Strength of the City's Evidence Are Disingenuous
Because Mr. Stamp cannot deny that he worked on the above and other matters, Plaintiffs
opposition asserts that the City has presented "no first-hand knowledge or admissible evidence"
regarding Mr. Stamp's prior work for the City. This argument is disingenuous for two reasons.
First, the City employees with first-hand knowledge of Mr. Stamp's prior representation of the
City are either no longer employed by the City (Kersnar Decl.,, I, 6; Schmitz Dec!.,,, I, 2, 7;
Pullen Decl., ,, I, 5) or arc Plaintiffherself(Miller Dec!.,, 8.) Obviously, the City could not
solicit a declaration from Plaintiff. Nor could the City have privileged conversations with its
former employees or refresh those former employees' recollections with privileged documents.
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Ironically, the Pullen, Schmitz and Kersnar declarations actually support disqualification,
because they all confirm that Mr. Stamp handled numerous perso!Ulel matters for the City. Pullen
states that from 1984 through 1998, he was "authorized to retain Michael Stamp for legal advice
on perso!Ulel and employment matters" (Pullen Dec I.,,, I -2) and that "Mr. Stamp provided legal
services only when the City Administrator authorized him to be engaged on a particular perso!Ulel
matter." (Pullen Dec!.,, 4.) Mr. Pullen recalls "consulting to a limited extent with Mr. Stamp on
two ... perso!Ulel situations" that involved "disciplinary matters." (Pullen Decl.,, 6.) Schmitz
admits that as City Administrator from 1983 to 1992, he "hired Michael Stamp for legal advice on
persollllel and employment matters .... " (Schmitz Dec!., 'n 1-2, 4). Kersnar makes similar
allegations in paragraph 3 of his declaration. It is therefore beyond dispute that Mr. Stamp
represented the City for years in various perso!Ulel and employment law matters. That alone,
regardless of the subject matters involved, indicates that his prior representation is substantially
related to this action. Precise identity between the prior representation and the current action is
not required: "[T}he facts of cases are never entirely alike, and no cases would ever be
'substantially related' if they could be distinguished on such narrow grounds." Morrison
Knudsen Corp. v. Hancock, Rothert & Bunshoft (1999) 69 Cai.App.4th 223, 235-236.
As for "admissible evidence," the City cannot submit the actual privileged documents on
this motion without waiving the privilege, and this is a well-recognized constraint on motions to
disqualify. Faughn v. Perez (2006) 145 Cal.App.4th 592, 602 ("Presenting direct evidence of
facts to support a motion to disqualify counsel that is related to confidential information is
constrained, of course, by the need to avoid the disclosure of the former client's confidences and
secrets"). If the Court believes that an in camera review of the privileged documents is necessary
to determine the motion, the Court should order such a review, which would protect the City from
a claim of waiver of the privilege.
F. Plaintifrs Legal Authorities On the Substantial Relationship Test Are Inapposite
Plaintiff asserts that this case is simi Jar to Faughn v. Perez, in which the attorney whose
disqualification was sought had previously represented both a parent corporation and several
individual hospitals in prior litigation involving malpractice occurring at the various hospitals. In
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the attorney had never represented the hospital whose actions were at issue in the case, though he
had represented the parent entity. 145 Cai.App.4th at 606-6 I I. These facts are inapposite to this
case, where Mr. Stamp represented the City directly for 17 years, and now sues the City based on
the sexual harassment policy and other policies about which he advised the City.
Next, Plaintiff argues that the "substantial relationship" test does not apply to the City
because it is a public entity whose policies are public records. This argument misses the mark.
No case holds that public entities have a lesser interest in preserving their confidential
information or a lesser right to insist that their retained counsel honor the duty of loyalty. The
only case Plaintiff cites simply holds that the salaries of public employees earning more than
$100,000 were public records. International Federation v. Sup. Court 42 Cal. 4th 319, 327.
IV. THE COURT MAY NOT CONSIDER WHETHER DISQUALIFICATION
WOULD PREJUDICE PLAINTIFF BECAUSE THE OVERRIDING PRINCIPLE IS THE
CITY'S RIGHT TO.PRESERVE ITS CONFIDENTIAL INFORMATION
Plaintiff argues that she would be prejudiced by Mr. Stamp's disqualification, but it is
black letter law that the Court may not engage in a balancing test here. While courts have long
recognized that disqualification can sometimes be merely tactical, it is well established that if a
conflict exists, the client's right to counsel of her choice must yield to the need to maintain ethical
standard of professional responsibility. That is because the chief fiduciary value jeopardized is
that of client confidentiality. Styles v. Mumbert (2008) 164 Cal.App.4th 1163, 1167. The Court's
overwhelming concern on this motion must be to preserve the integrity of the judicial process by
ensuring that the City's confidential information remains protected.
This principle is nicely explained in a case Plaintiff cites, River West Inc. v. Nickel (1987)
188 Cai.App.3d 1297. There, the Court explained that on a motion to disqualifY, the Court may
not conduct a balancing test weighing the former client's right to have its information kept
confidential and the current client's right to counsel of choice:
The client's recognizably important right to counsel of his choice
must yield, however, to considerations of ethics which run to the
very integrity of our judicial process. ***
[T]he risk of an attorney "turning" on a former client in the same or
a substantially related matters poses greater concern.. . . There
exists the potential for counsel to reveal or use the former client's
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[T]he risk of an attorney "turning" on a fonner client in the same or
a substantially related matters poses greater concern .... There
exists the potential for counsel to reveal or use the fonner client's
confidences. As a result, the "substantial relationship" test is a
strict, prophylactic rule. In applying this rule, courts avoid
becoming enmeshed in considerations of the number and
importance of the confidences, the potential impact of their use in
litigation, or the effect of disqualification upon the parties.
Therefore, if a timely motion to disqualify is made, we reject the
idea that the trial court should enlarge its inquiry by balancing the
parties' competing interests under its equity jurisdiction.
188 Cai.App.3d at 1306, 1308 (emphasis added).
Plaintiffs arguments about the potential prejudice that disqualification would cause are
naive at best. More likely, these arguments are designed to distract the Court's attention from the
fact that Mr. Stamp has turned on the City by suing it based on the very same policies he advised
about, including the sexual harassment policy. Any prejudice to Plaintiff is the fault of her own
attorney, who is suing his fonner client without making the required disclosures or obtaining the
required consent.
V. THE DOCTRINE OF LACHES DOES NOT APPLY HERE
Plaintiff claims that the doctrine of laches prevents disqualification here. Laches is
inapplicable for two reasons. First, the City filed this motion within 3 months after the lawsuit
was filed. More importantly, Plaintiff has unclean hands because Mr. Stamp failed to honor his
ethical obligation to seek the City's infonned written consent.
A. Plaintiff Has Unclean Hands
Under the rules of equity, a party who seeks equity must do equity. "No one can take
advantage of his own wrong." Civil Code 3517. Here, Plaintiff has unclean hands because her
agent, Mr. Stamp, failed to provide written disclosure to the City that he was planning to
represent Plaintiff or advising the City ofthe actual or reasonably foreseeable adverse
consequences that that representation would have on the City, as required by California Rule of
Professional Conduct 3-310.
B. This Motion Was Filed Less Than Three Months After the Lawsuit Was Filed
Plaintiff argues that the City waited six years to assert the conflict. Plaintiff is wrong.
This lawsuit was served on the City on June 17, 2009. Burch Dec I. '1!2. The City answered the
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Complaint on July 17, 2009. This motion was filed just six weeks later, on September 1, 2009.
The laches case Plaintiff cites, River West Inc. v. Nickel (1987) 188 CaLApp.3d 1297, provides no
guidance. In that case, the motion to disqualify was made four years after the lawsuit was filed.
188 CaLApp.3d at 130 1.
Plaintiff's argument appears to be that in 2003, when Mr. Stamp represented City
employees Greg D'Ambrosio and Brian Donoghue regarding their desire to retire, that somehow
started the clock running on the City's ability to assert that Mr. Stamp has a conflict in this
lawsuit, filed in 2009. The argument fails for several reasons. First, Plaintiff has not cited a case
holding that a party who does not assert a conflict in an entirely separate, previous, non-litigation
matter will be precluded from asserting conflicts arising in a subsequent, separate and unrelated
lawsuit, and the City is not aware of any such authority. The laches cases Plaintiff cites involved
delays that occurred after the filing of the lawsuits at issue.
Though Plaintiff tries to characterize this case as "the fifth in a series of discrimination
cases," the fact is that none of four employees Mr. Stamp represented asserted discrimination or
retaliation claims. (Declaration of Rich Guillen, '1['1[4, 7, 10 and 14.) Those employees made no
claims whatsoever, and simply wanted to retire early to take advantage of the City's golden
handshake, which offered employees two years ofPERS credit in return for early retirement. The
City had already established the golden handshake in order to reduce the City's personnel costs.
(Guillen DecL, '11'112-3.) The four employees simply retained Mr. Stamp in order to deal with the
complicated PERS issues, and issues involving paid leave as it relates to public employment and
gift of public funds issues. (Guillen Dec!., '1['1[4-16.) The employees never sued or filed DFEH
charges; they simply wanted to retire. (Guillen Dec!., '1[17.) Though Plaintiff claims that these
employees collectively received more than $500,000, the amount merely represents the value of
two years' service credit, performance bonuses, and payouts of accrued leaves for four employees
who collectively had worked a total of 99 years for the City and were entitled to receive that
compensation. (Guillen Dec!., 7-8, 10-15.) Plaintiff's attempt to characterize these
employees' retirements as settlements of discrimination claims goes beyond the boundary of
zealous advocacy and into the territory of misleading the Court. In any event, these employee
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matters are irrelevant. Even if these employees had claimed discrimination, the City's non-
assertion of a conflict regarding Mr. Stamp's involvement those matters would affect only those
matters, not this lawsuit. No case holds to the contrary.
Though the City was aware that Mr. Stamp was representing Plaintiff prior to the lawsuit,
there was nothing to disqualify Mr. Stamp from doing. "A motion to disqualify conflicted
counsel cannot be brought where there is no pending litigation." Vapnek et a!., CaL Practice
Guide: Professional Responsibility (The Rutter Group 2005) Conflicts oflnterest, '114:318, citing
Machado v. Sup. Ct. (Atherton) (2007) 148 Cal.App.4th 875,881. Before this lawsuit was filed
in June 2009, the City could not have moved to disqualify Mr. Stamp. Moreover, there were no
adversarial proceedings. Plaintiff was on sick leave (Complaint, '1163) and an outside investigator
was investigating her complaint (Exhibit J to Stamp Dec I.). Mr. Stamp simply wrote various
letters to the City indicating that Plaintiff refused to be interviewed as part of the investigation.
(Exhibits l, J, K to Stamp Dec I.; Stamp Dec!., '1167 .) Accordingly, Plaintiff may not argue that
the City should have "disqualified" Mr. Stamp prior to this litigation. No case holds that pre-
litigation conduct triggers a duty to assert a conflict, nor would it have been logical for the City to
do so.
Plaintiffs final argument is that this motion is a litigation tactic, and she cites Zador Corp
v. Kwan (1995) 31 Cal.App.4th 1285 as support. Zador is inapposite. There, the party seeking
disqualification had actually consented to the conflict, because the attorney in that case--unlike
Mr. Stamp--had provided written disclosure of the conflict and had obtained written consent to
it. ld. at 1290.
October 15, 2009 ITMORE
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PROOF OF SERVICE
REPLY BRIEF SUPPORTING MOTION BY DEFENDANT CITY OF CARMEL-BY-
THE-SEA TO DISQUALIFY PLAINTIFF'S COUNSEL
0
Michael W. Stamp
Monterey, CA 93940
VIA 1\fAIL- CCP I013(a):
VlA OVERNIGHT MAIL/COURIER- CCP 1013(e):
By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and placing
each for collection by overnight mail service or overnight courier service. I am readily familiar
with my firm's business practice of collection and processing of correspondence for overnight mail
or overnight courier service, and any correspondence placed for collection for overnight delivery
would, in the ordinary course of business, be delivered to an authorized courier or driver authorized
by the overnight mail carrier to receive documents, with delivery fees paid or provided for, that
same day, for delivery on the following business day.
knowledge.
Executed at San Francisco, California on October 15, 2009.

[Andrea S. Bolnick)
99081.1 CA200.014
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!53 Townsend Street, Suite 520
Telephone: (415) 512-3000
Facsimile: ( 415) 856-0306
CITY OF CAR.MEL-BY-THE-SEA
0
FIL,ED
OCT l 3 2009
CONNIE tv'.AZZEI
CLERK OF THE SUPERIOR COUR1

COUNTY OF MONTEREY
SALINAS DIVISION
Plaintiff,
v.
DOES 1 through I 00, inclusive,
Defendant.
CaseNo. M995!3
DEFENDANT CITY OF CARMEL-BY-
THE-SEA'S OBJECTIONS TO
PLAINTIFF'S EVIDENCE IN
OPPOSITION TO CITY'S MOTION TO
Date:
Time:
Dept:
Judge:
October 23, 2009
8:45a.m.
4
Hon. Larry E. Hayes
Defendant City of Carmel-by-the-Sea hereby submits the following objections to
Plaintiff's Evidence in Opposition to City's Motion to Disqualify Plaintiff's Counsel.
OBJECTIONS TO DECLARATION OF JERE A. KERSNAR
Objection Number 1 to Kersnar Declaration:
"I do not recall providing Mr. Stamp with any confidential information relating to City
policies, practices, actions, or anything else." (Kersnar Dec!., page 2, lines 4-5.)
CITY'S OBJECTIONS TO PLAINTIFF'S EVIDENCE IN OPPOSITION TO MOTION TO DISQUALIFY
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Grounds for Objection I:
Irrelevant (Evid. Code 210, 350-351; Farris v. Fireman's Fund Insurance Company (2004)
119 Cal.App.4th 671, 681, fu 7 ("We again highlight the impropriety of any inquiry into, or
evidence about, the actual state of the lawyer's knowledge in evaluating whether there is a
substantial relationship between the compared representations")).
Objection Number 2 to Kersnar Declaration:
"I do not believe that Mr. Stamp was provided with or received any confidential
information from the City during my tenure with the City that had any material relationship to
anything raised in the Miller claims, including any confidential information that would relate in
any way to the evaluation or prosecution of the Miller claims." (Kersnar Dec!., page 3, lines 26-
page 4, lines 2.)
Grounds for Objection 2:
Lacks foundation, speculative, states allegations not within the personal knowledge of
declarant (Evid. Code, 702(a)). Improper Lay Opinion (Evid. Code 800, 803, 805).
119 Cai.App.4th 671, 681, fu 7 ("We again highlight the impropriety of any inquiry into, or
OBJECTIONS TO DECLARATION OF JERRY PULLEN
Objection No.1 to Pullen Declaration:
"I do not recall Mr. Stamp being provided any confidential information in regard to the
procedures and ordinance." (Pullen Dec!., page 2, lines 20-21.)
Grounds for Objection 1:
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Objection No. 2 to Pullen Declaration:
"The only confidential information in those situations were [sic] the names of the
employees and the nature of the disciplinary matters. Neither situation created any precedent or
policy for the City." (Pullen Dec!., page 2, lines 26-28.)
Grounds for Objection No.2:
I 19 Cai.App.4th 671, 681, fn 7 ("We again highlight the impropriety of any inquiry into, or
Objection No.3 to Pullen Declaration:
" ... but I have no recollection of providing any confidential information to Mr. Stamp in
regard to the policy, and I do not believe that the City provided any confidential information to
Mr. Stamp in regard to that process." (Pullen Dec!., page 3, lines 6-8.)
Ground for Oblection No. 3:
declarant (Evid. Code, 702(a)). Irrelevant (Evid. Code 210, 350-351; Farris v. Fireman's
Fund Insurance Company (2004) 119 Cai.App.4th 671, 681, fn 7 ("We again highlight the
evaluating whether there is a substantial relationship between the compared representations")).
Obiection No.4 to Pullen Declaration:
anything raised in the Miller claims, including any confidential information that would be
material to the evaluation or prosecution or consideration of the Miller claims." (Pullen Dec!.,
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page 3, lines 12-16.)
declarant (Evid. Code, 702(a)). Improper Lay Opinion (Evid. Code 800, 803, 805);
119 CaLAppAth 671, 681, fu 7 ("We again highlight the impropriety of any inquiry into, or
substantial relationship between the compared representations'')).
OBJECTIONS TO DECLARATION OF DOUGLAS J. SCHMITZ
Objection No. I to Schmitz Declaration:
"I have no recollection of providing any confidential information to him, other than such
information as the name or job performance factors of a specific employee." (Schmitz Dee!.,
page 2, lines 8-10.)
Ground for Obj ectlon No. 1:
Objection No. 2 to Schmitz Declaration:
"I do not recall providing Mr. Stamp with any confidential information in regard to his
review or comment on any policy or ordinance, and I do not believe that any such confidential
information was provided to him in that regard." (Schmitz Dec!., page 2, lines 16-19.)
Ground for Objection No.2:
declarant (Evid. Code, 702(a)). Improper Lay Opinion (Evid. Code 800, 803, 805);
- 4-
CITY'S OBJECTIONS TO PLAINTIFF'S EVIDENCE IN OPPOSITION TO MOTION TO DISQUAUFY
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119 Cai.App.4th 671, 681, fn 7 ("We again highlight the impropriety of any inquiry into, or
Obiection No.3 to Schmitz Declaration:
anything raised in the Miller claims, including any confidential information that would be
material to the evaluation or prosecution of the Miller claims." (Schmitz Dec!., page 3, lines 12-
15.)
declarant (Evid. Code, 702(a)). Improper Lay Opinion (Evid. Code 800, 803, 805).
.evidence about, the actual state of the lawyer's knowledge in evaluating whether there is a
OBJECTIONS TO DECLARATION OF JANE MILLER
Objection No. I to Miller Declaration:
"In working on that case, I provided no confidential information to Mr. Stamp, other than
the specific factual issues relating to the disciplinary issues of that particular employee. To the
best of my knowledge, Mr. Stamp did not obtain any information about any secret or confidential
manual, policy, set of criteria, or other confidential material, and no such materials exist" (Miller
Decl., page 3, lines 3-7.)
-5-
CITY'S OBJECflONS TO PLAINTIFF'S EVIDENCE IN OPPOSITION TO MOTION TO DISQUALIFY
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Fund Insurance Company (2004) 119 Cai.App.4th 671, 681, fu 7 ("We again highlight the
Objection No. 2 to Miller Declaration:
"Mr. Stamp's knowledge of this case comes in significant part from the information I have
given him, not from any information that he received from the City of Carmel-by-the-Sea."
(Miller Dec I., page 5, lines 26-28.)
Grounds for Objection No. 2:
Lacks foundation, speculative, states allegations not within tbe personal knowledge of
Fund Insurance Company (2004) 119 Cai.App.4th 671, 681, fu 7 ("We again highlight the
Objection No.3 to Miller Declaration:
"Mr. Stamp was not provided with, nor did he receive any confidential information from
the City during my tenure with the City that had any material relationship to anything raised in
this case, including any confidential information that would be material to the evaluation or
prosecution or consideration of the claims." (Miller DecL, page 6, lines 7-1 0.)
Grounds for ObJection No. 3:
Lacks foundation, speculative, states allegations not within tbe personal knowledge of
Fund Insurance Company (2004) 119 Cai.App.4th 671, 681, fn 7 ("We again highlight the
II
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OBJECTIONS TO DECLARATION OF MICHAEL W. STAMP
Objection No. I to Stamp Declaration:
"The majority of discussions I had with City Administrators Schmitz and Kersnar were of
general statements of the law, of the same type they would receive at a league of California Cities
conference or similar seminar, or could find in one ofthe Liebert Cassidy general training
sessions or briefing papers, or were specific to individual employees not involved in the Jane
Miller matter." (Stamp Decl., page 5, lines 3-7.)
Grounds for Objection No.I:
Objection No.2 to Stamp Declaration:
information communicated in 1985 about a "then-proposed" personnel ordinance
would be outdated and has no significant or material relationship to Jane Miller's claims in 2009
under current law." (Stamp DecL, page 6, lines 17-20.)
Ground for Objection No.2:
"There is nothing in the elements of any 1980's job description that I would, could, or did
use in evaluating, preparing for, or providing any services on any claim by Jane Miller." (Stamp
Dec!., page 7, lines 13-15.)
II
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CITY'S OBJECTIONS TO J?LAINTIFF'S EVIDENCE IN OPPOSITION TO MOTION TO DISQUALIFY
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Oblection No.4 to Stamp Declaration:
"The issues in the present case about such policies, if they become an issue, are not
materially related to anything I may have heard from Mr. Schmitz 22 years ago involving
different City personnel and a different administration, and I do not believe that I received any
confidential information about that topic 22 years ago." (Stamp Dec!., page 8, lines 13-16.)
119 Cal.App.4th 671, 681, fn 7 ("We again highlight the impropriety of any inquiry into, or
evidence about, the actual state of the lawyer's knowledge in evaluating whether there IS a
"I learned nothing confidential in regard to that matter other than the information
necessary to resolve the specific employee situation, such as the employee's name, job title, and
any basis for discipline." (Stamp Decl., page 10, lines 22-24.)
II
II
- 8-
CITY'S OBJEC"TIONS TO PLAINTIFF'S EVIDENCE IN OPPOSlTION TO MOTION TO DISQUALIFY
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"I learned nothing in that I998-1999 representation that is in any way material to any
issue in the present litigation, or which would assist me in any way in the evaluation, prosecution,
or handling of the Jane Miller case." (Stamp Decl., page I 0, line 28 to page II, line 2.)
II9 Cal.App.4th 671, 681, fn 7 ("We again highlight the impropriety of any inquiry into, or
Objection No.7 to Stamn Declaration:
"The only confidential information I received was in regard to the specific employee and
the disciplinary issues." (Stamp Dec!., page 11, lines 15-16.)
OBJECTIONS TO DECLARATION OF MICHELLE A. WELSH
The City objects to the entire declaration on the grounds that it is irrelevant (Evid. Code
210, 350-351; River West Inc. v. Nickel (1987) 188 Cai.App.3d 1297, 1306-1308).
Dated: October 15, 2009 LIEBERT CASSIDY WHITMORE
108708,1 CA200014
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PROOF OF SERVICE
I, the undersigned, deelare:
I am employed in County of San Francisco, State ofCa1ifornia. I am over the age of
DEFENDANT CITY OF CARMEL-BY-THE-SEA'S OBJECTIONS TO PLAINTIFF'S
EVIDENCE IN OPPOSITION TO CITY'S MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
D
Michael W. Stamp
Monterey, CA 93940
fully prepaid, and placing it for collection and.mailing on date set forth below, following ordinary
VIA OVERNIGHT MAIL/COURIER CCP 1013(e):
or overnight courier service, and any correspondence placed for collection for overnight delivary
by the overnight tnnil carrier to receive documents, with delivery fees paid or provided for, that
I deelare under penalty of peljury that the foregoing is true and correet and of my personal
knowledge.
Exeeuted at San Francisco, California on October 15, 2009.
[AndreaS. Bolnick]
99081.1 CA200.{1l4
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DEFENDANT CITY OF CARMEL-BY-THE-SEA'S OBJECTIONS TO PLAINTIFF'S EVIDENCE IN
OPPOSITION TO CITY'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
----- ..._.,
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rbolanos@ lcwlegal.com
gchan @lcwlegal.com
!53 Townsend Street, Suite 520
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
0
FILED
OCT 1 3 2009
CONNIE MAZZEJ
CLERK OF THE SUPERIOR COJR
__ mYuTY
COUNTY OF MONTEREY
SALINAS DIVISION
Plaintiff,
v.
CITY OF CARMEL-BY -THE-SEA and
DOES I through l 00, inclusive,
Defendant.
Case No. M99513
DECLARATION OF RlCH GUILLEN
SUPPORTING MOTION BY DEFENDANT
CITYOFCARMEL-BY-THE-SEATO
Time: 8:45 a.m.
Dept.: 4
Judge: Hon. Larry E. Hayes
[Exempt from filing fees pursuant to Cal. Gov.
Code 6103]
l, Rich Guillen, do hereby declare the following:
l. l have been employed by Defendant City of Carmel-by-the-Sea since October
2000. From October 2000 to December 2000, I served as the Interim City Administrator. On
January I, 2001, I became the City Administrator, which is my current position. In that capacity,
I have personal knowledge of the facts set forth below, or have obtained such knowledge through
- I -
DECLARATION OF RIGH GUILLEN IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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a review of true and correct copies of in the City's files with which I am familiar. If
called upon to do so, I would testify competently to such facts and the authenticity of such
documents.
2. In 2003, due to a sluggish economy, I analyzed whether and how the City could
offer certain retirement incentives to employees in order to reduce the City's personnel costs.
The options I considered included, among other things, a "golden handshake" under which
employees would receive 2 years' service credit in return for retiring within certain time periods
designated by the City, and severance pay bearing some relationship to an employee's length of
service with the City. These incentives were to be coupled with payout of employees' accrued
vacation and sick leaves, to which employees were already entitled under the City's Municipal
Code. I informed the City Council that I was considering these options as a method for the City
to reduce personnel costs during a slow economy. Attached hereto as Exhibit 1 is a true and
correct copy of my memo to the City Council to that effect.
3. In the summer of2003, the City decided to implement the golden handshake.
Under the PERS golden handshake, employees received 2 years' service credit in return for
retiring within certain time periods designated by the City. On August 5, 2003, the City adopted
Ordinance 2003-07. The purpose of Ordinance 2003-07 was to amend the City's contract with
the California Public Employees' Retirement System (PERS) in order to provide two years
additional service credit for eligible members of the City's local miscellaneous members, in order
to reduce the City's personnel costs. A true and correct eopy of Ordinance 2003-07 is attached
hereto as Exhibit 2.
Greg D'Ambrosio ("Employee Number 1")
4. In 2003, Greg D'Ambrosio was the Assistant City Administrator and had worked
for the City for 32 years. I do not recall Mr. D'Ambrosio ever making any allegations or claims
that he felt he was being "harassed" or treated in any particular manner because of membership in
any protected status. Mr. Stamp contacted me in 2003, told me he represented Mr. D'Ambrosio
and that Mr. D'Ambrosio wanted to retire and receive the golden handshake. Mr. Stamp did not
-'>- J
-DECLARATION OF RICH GUILL-E--N-IN_S_UP_P_O_R_T_O_F_MOTION TO DISQ!.IALIFY PLAINTIFF'S
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make any allegations of discrimination on Mr. D'Ambrosio's behalf, and I understood that Mr.
D'Ambrosio had retained Mr. Stamp to help him navigate the complexities of PERS.
5. The City and Mr. D'Ambrosio agreed that he would retire, receive the golden
handshake of two years' PERS service credit, receive 6 months' severance pay in recognition of
his longevity, receive payout of accrued vacation and sick leave, as all retirees do, and be allowed
to use accrued sick leave as PERS service credit. Mr. D'Ambrosio also received a performance
bonus for 2003, a bonus that was available to certain employees pursuant to the 2001-2004
Memorandum of Understanding ("MOU") between their union and the City. A true and correct
copy of the portion of that MOU is attached hereto as Exhibit 3. A true and correct copy of the
letter memorializing the terms of Mr. D'Ambrosio's retirement is attached hereto as Exhibit 4.
6. Before Mr. Stamp notified me that he was representing Mr. D'Ambrosio, neither
Mr. Stamp nor anyone from his law office provided written disclosure to the City of Carmel-by-
the-Sea explaining that the Law Office of Michael Stamp was planning to represent Mr.
D'Ambrosio or advising the City of the actual or reasonably foreseeable consequences such
representation could have on the City. Nor did Mr. Stamp or anyone from his law office ever
request written or obtain consent from the City to that firm's representation of Mr. D'Ambrosio.
Brian Donoghue ("Employee Number 2")
7. In 2003, Brian Donoghue was employed as the City's Community and Cultural
Director and had worked for the City for 13 years. One of Mr. Donoghue's duties involved
managing the City's Sunset Theater. In 2003, the Sunset Theater was undergoing a $21 million
remodel. A significant portion of the funds that had been raised for the remodel were raised by
an outside entity. The City Council retained a consultant to develop a business and operating plan
for the theater. That plan included, among other options, a scenario in which the remodeled
Sunset Theater and the City's Sunset Center would be managed by an outside, non-profit entity.
Several public meetings were held about this, and those meeting resulted in the Mayor's
appointment of two ad hoc committees (Management Committee and Finance Committee) to
review the business plan in more detail. Upon completion of their respective reviews, a
recommendation was made to have a non-profit entity manage the Sunset Center Complex.
- 3-
DECLARATION OF RICH GUILLEN IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFFS COUNSEL
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Though Mr. Donoghue expressed dismay at the possibility that an outside entity would manage
the Sunset Theater/Sunset Center, he never alleged that the potential change in management was
based on any protected activity or membership in any protected status.
8. Mr. Stamp contacted me in 2003, told me he represented Mr. Donoghue and that
Mr. Donoghue wanted to retire and receive the golden handshake. Mr. Stamp did not make any
allegations of discrimination on Mr. Donoghue's behalf, and I understood that Mr. Donoghue had
retained Mr. Stamp to help him navigate the complexities of PERS. The City and Mr. Donoghue
agreed that he would retire, receive the golden handshake, receive 7
1
12 months' severance pay,
receive payout of accrued vacation and sick leave as all retirees do, and be allowed to use accrued
sick leave asPERS service credit. Mr. Donoghue also received a performance bonus for 2003, a
bonus that was available to certain employees pursuant to the MOU between his union and the
City (excerpts attached hereto as Exhibit 3). A true and correct copy of the letter memorializing
the terms of Mr. Donoghue's retirement is attached hereto as Exhibit 5.
9. Before Mr. Stamp notified me that he was representing Mr. Donoghue, neither Mr.
Stamp nor anyone from his Jaw office provided written disclosure to the City of Carmel-by-the-
Sea explaining that the Law Office of Michael Stamp was planning to represent Mr. Donoghue or
advising the City of the actual or reasonably foreseeable consequences such representation could
have on the City. Nor did Mr. Stamp or anyone from his law office ever request written or obtain
consent from the City to that firm's representation of Mr. Donoghue.
Margaret Pelikan ("Employee Number 3")
10. In August 2006, Mr. Stamp emailed me that he represented Margaret Pelikan, who
at that time was employed as the City's Library Director. Mr. Stamp stated in the email that Ms.
Pelikan was turning 55 in June and that she would like to retire with the golden handshake and
would like to receive paid leave and her annual performance bonus. A true and correct copy of
the email is attached hereto as Exhibit 6. Prior to being contacted by Mr. Stamp on Ms.
Pelikan's behalf, Ms. Pelikan had never made any allegations, to my knowledge, that she was
being treated differently based on her gender or forced to retire. I understood that Ms. Pelikan
- 4 -

DECLARA TlON OF RICH GUILLEN IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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had retained Mr. Stamp to help her navigate the complellities of PERS and of obtaining paid leave
within the legal constraints applicable to public employment.
11. Mr. Stamp and the City ultimately reached agreement on the temns of Ms.
Pelikan's retirement. The terms were contained in an agreement, a true and correct copy of which
is attached hereto as Exhibit 7. Pursuant to that agreement, Ms. Pelikan received the golden
handshake (2 years of PERS service credit), a performance bonus of $6,155 (to which she was
already entitled pursuant to the applicable MOU), sill months of paid leave, sill months of
severance pay, and payout of accrued vacation and sick leave, as all retirees received, and was
allowed to use accrued sick leave as PERS service credit. Ms. Pelikan had worked for the City
for 29 years at this point.
12. Before Mr. Stamp notified me that he was representing Ms. Pelikan, neither Mr.
Stamp nor anyone from his law office provided written disclosure to the City of Carmel-by-the-
Sea ellplaining that the Law Office of Michael Stamp was plaMing to represent Ms. Pelikan or
consent from the City to that firm's representation of Ms. Pelikan.
Sandy Farrell ("Employee Number 4")
13. In February 2008, Mr. Stamp contacted me by email stating that he represented
Sandy Farrell, who was working as an Ellecutive Assistant for the City, and that he would like to
meet with me to discuss her employment. Mr. Stamp conveyed to me that Ms. Farrell wanted to
retire and wanted the golden handshake. At this point Ms. Farrell had worked for the City for 25
years. A true and correct copy of that email is attached hereto as Exhibit 8.
14. l have reviewed Mr. Stamp's allegations, in paragraph 47 of his declaration
supporting Plaintiffs Opposition to the City's Motion to Disqualify, that Ms. Farrell made
"claims which included possible allegations that she was being forced into early retirement
illegally by Mr. Guillen and possible claims of being isolated at work by design, and that the basis
for the City's actions included discrimination." Mr. Stamp never mentioned during any of our
discussions regarding Ms. Farrell, any "possible allegations" or "possible claims" of Ms. Farrell.
- 5
DECLARATION OF RICH GUILLEN IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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Nor had Ms. Farrell made any claims or allegations about being "forced into early retirement."
To the contrary, I understood that Ms. Farrell wished to retire for personal reasons. I understood
that Ms. Farrell had retained Mr. Stamp to help her navigate the complexities of PERS and of
obtaining paid leave within the legal constraints applicable to public employment. In fact, I
explained that to a reporter from the Cannel Pine Cone. A true and correct copy of that
newspaper article quoting me (on page 2) is attached hereto as Exhibit 9.
15. On March 11, 2008, Mr. Stamp emailed me with a proposal for Ms. Farrell's
retirement for the City. The proposal provided that Ms. Farrell would retire, would receive the
golden handshake (2 years service credit), her accrued sick leave would be applied as PERS
service time, and she would be paid for any other accrued leaves. A true and correct copy of that
email is attached hereto as Exhibit 10. Further negotiations followed, resulting in an agreement.
Pursuant to the agreement, Ms. Farrell stopped her active employment on April 15, 2008, and
then worked on certain projects until June 30, 2008, the date of her retirement. Under the
agreement, Ms. Farrell received the golden handshake, payment for her accrued sick and vacation
leave, as all retirees do, and was allowed to use accrued sick leave as PERS service credit. A true
and correct copy of the agreement is attached hereto as Exhibit ll.
16. Before Mr. Stamp notified me that he was representing Ms. Farrell, neither Mr.
Stamp nor anyone from his law office provided written disclosure to the City of Cannel-by-the-
Sea explaining that the Law Office of Michael Stamp was planning to represent Ms. Farrell or
consent from the City to that firm's representation of Ms. FarrelL
17. Mr. Stamp never represented Mr. D'Ambrosio, Mr. Donoghue, Ms. Farrell or Ms.
Pelikan in any lawsuit against the City. Nor did any of those employees ever file DFEH charges
Ill
Ill
Ill
Ill
- 6-
DECLARATION OF RICH Gt;ILLEN IN SUPPORT OF MOTION TO DISQUALIFY PLAINTII--TS COUNSEL
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against !he City.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on October 14, 2009 at
Carmel-by-the-Sea, California.
Rich Guillen
l08746.l Ci\:!00..014
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DECLARATION OF RICH GUILLEN IN SUPPORT OF MOTION TO DISQUALIFY PL\INTfFFS COUNSEL
0241
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GUILLEN DECLARATION EXHIBIT 1
0242
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CONFIDENTIAL MEMO
Date: March 31, 2003
To: Mayor and City Council Members
From: Rich Guillen, City Administrator
RE: RETIREMENT INCENTIVE PROPOSALS
In light of the current sluggish economy and its potential effect on our budget, I have begun to
review retirement incentives as an option for reducing personnel costs. Below I've listed a few
discussion points with which I could begin a dialogue with employees who may be interested in
retiring with some incentives.
1. EARLY RETIREMENT
2 yean additional service eredlt with Cal PERS
Two (2) Years service credit with the Ca/PERS retirenwnt system, agreement to retire
within period designated by contract amendment with PERS {estimated to be a July or
August 2003 date) Cost) if employee agrees to leave City service by date certain,
established by th([ City
COST and consequence: Between 44% and 56% of employee's final compensation,
depending on employee age at retirement. {For example, final comp = $/00,000, cost
would be $46,000- $56,000) Classification would also be frozen or eliminated.
Union Retirement Plan- eUgible for regular Pension from Lluna at age 62. Current
Union employees are already vested andfondedfor years of service with Carmel.
2. HEALTH:
1/Ca/PERS retiree, eligible to enroll in CaiPERS health plan Ca/PERS 2003 at the
current rates for retirees OR, employee may continue under the Union Plan
City may consider subsidizing costs of health via an annuity
3. SERVERANCE PAY
Consider different possible options if employee agrees to leave City service by date
certain, established by the City.
Examples: 3 month severance pay OR,
I week of severance pay for every year of service greater than I 0 years
(with Carmel)
4. NORl\IAL RETIREMENT PAYOUT
Sick Leave Payout
Vacation Lump sum payoff a1 retirement
0243
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CITY COUNCIL
ORDINANCE NO. 2003-07
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-
SEA AUTHORIZING AN AMENDMENT TO THE CONTRACT BETWEEN THE
CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA AND THE BOARD OF
ADMINISTRATION OF THE CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT
SYSTEM TO PROVIDE SECTION 20903 (TWO YEARS ADDffiONAL SERVICE
CREDIT) FOR ELIGIBLE LOCAL MISCELLANEOUS MEMBERS
THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA DOES
ORDAIN AS FOLLOWS:
Sectiog One. That an amendment to the contract between the City Council
of the City of Cannel-by-the-Sea and the Board of Administration, California Public
Employees' Retirement System is hereby authorized, a copy of said amendment being
attached hereto. marked Exhibit "A". and by such reference made a part hereof as though
herein set out in full.
Section Two, The Mayor of the City Council is hereby authorized,
empowered, and directed to execute said amendment for and on behalf of said Agency.
Section Three, This Ordinance shall take effect thirty (30) days after the date
of its adoption, and prior to the expiration of I 0 days from the passage thereof shall be
published at least once in the Cannel Pine Cone, a newspaper of general circulation,
published and circulated in the City of Cannel-by-the-Sea and thenceforth and thereafter
the same shall be in full force and effect,
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF
CARMEL-BY-THE-SEA THIS 5"' day of August 2003, by the following roll call vote:
A YES: COUNCIL MEMBERS: Ely, Hazdovac, Rose, McCloud
NOES: COUNCIL MEMBERS: Livingston
ABSENT: COUNCIL MEMBERS: None
ATTEST:
!
' J I /J
/ 1 ~ , /.
1
jt:.._(/,0J:.lV f _,t.!). IA(.Il/
Karen Crouch, City Clerk
Signed:
_..:...:o<-__::_ ~ ' ' ( 0, ' .. f
SUE McCLOUD, MAYOR
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CalPERS
EXHIBIT A
California
Public Employees' Retirement System
------
AMENDMENT TO CONTRACT
Between the
Board of Administration
California Public Employees' Retirement System
and the
City Council
City of Carmel-By-The-Sea
--------------
The Board of Administration, California Public Employees' Retirement System,
hereinafter referred to as Board, and the governing body of the above public agency,
hereinafter referred to as Public Agency, having entered into a contract effective
January 1, 1955, and witnessed December 13, 1954, and as amended effective
October 1, 1960, July 1, 1968, July 1, 1973, March 16, 1983, July 1, 1990, June 5,
1993, June 5, 1997, October 16, 1998, January 7, 2000, September 7, 2001 and July 1,
2003 which provides for participation of Public Agency in said .System, Board and Public
Agency hereby agree as follows:
A. Paragraphs 1 through 12 are hereby stricken from said contract as executed
effective July 1, 2003, and hereby replaced by the following paragraphs
numbered 1 through 12 inclusive:
1. All words and terms used herein which are defined in the Public
Employees' Retirement Law shall have the meaning as defined therein
unless otherwise specifically provided. "Normal retirement age shall
mean age 55 for local miscellaneous members and age 50 for local safety
members.
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2. Public Agency shall participate in the Public Employees' Retirement
System from and after January 1, 1955 making its employees as
hereinafter provided, members of said System subject to all provisions of
the Public Employees' Retirement Law except such as apply only on
election of a contracting agency and are not provided for herein and to all
amendments to said Law hereafter enacted except those, which by
express provisions thereof, apply only on the election of a contracting
agency.
3. Employees of Public Agency in the fottowing classes shall become
members of said Retirement System except such in each suctr class as
are excluded by law or this agreement:
a. Local Fire Fighters (herein referred to as local safety members);
b. Local Police Officers (herein referred to as local safety members);
c. Employees other than local safety members (herein referred to as
local miscellaneous members).
4. In addition to the classes of employees excluded from membership by
said Retirement Law, the following classes of employees shall not become
members of said Retirement System:
NO ADDITIONAL EXCLUSIONS
5. The percentage of final compensation to be provided for each year of
credited prior and current service as a local miscellaneous member shall
be determined in accordance with Section 21354 of said Retirement Law
(2% at age 55 Full).
6. The percentage of final compensation to be provided for each year of
credited prior and current service as a local safety member shall be
determined in accordance with Section 21362.2 of said Retirement Law
(3% at age 50 Full).
7. Public Agency elected and elects to be subject to the following optional
provisions:
a. Section 21222.1 (One-Time 5% Increase 1970). Legislation
repealed said Section effective January 1 . 1980.
b. Section 20042 (One-Year Final Compensation).
c. Section 21574 (Fourth Level of 1959 Survivor Benefits).
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d. Section 21024 (Military Service Credit as Public Service). Statutes
of 1976
e Section 21583 (Additional Opportunity to Elect 1959 Survivor
Benefits).
f. Section 20965 (Credit for Unused Sick Leave).
g. Section 20903 (Two Years Additional Service Credit) for local
miscellaneous members only.
8. Public Agency, in accordance with Government Code Section 20790,
ceased to be an "employer" for purposes of Section 20834 effective on
March 16, 1983. Accumulated contributions of Public Agency shall be
fixed and determined as provided in Government Code Section 20834,
and accumulated contributions thereafter shall be held by the Board as
provided in Government Code Section 20834.
9. Public Agency shall contribute to said Retirement System the contributions
determined by actuarial valuations of prior and future service liability with
respect to local miscellaneous members and local safety members of said
Retirement System.
10. Public Agency shall also contribute to said Retirement System as follows:
a. Contributions required per covered member on account of the 1959
Survivor Benefits provided under Section 2157 4 of said Retirement
Law. (Subject to annual change.) In addition, all assets and
liabilities of Public Agency and its employees shall be pooled in a
single account, based on term insurance rates, for survivors of all
local miscellaneous members and local safety members.
b. A reasonable amount, as fixed by the Board. payable in one
installment within 60 days of date of contract to cover the costs of
administering said System as it affects the employees of Public
Agency, not including the costs of special valuations or of the
periodic investigation and valuations required by law.
c. A reasonable amount. as fixed by the Board, payable in one
installment as the occasions arise, to cover the costs of special
valuations on account of employees of Public Agency, and costs of
the periodic investigation and valuations required by law.
11. Contributions required of Public Agency and its employees shall be
subject to adjustment by Board on account of amendments to the Public
Employees' Retirement Law, and on account of the experience under the
Retirement System as determined by the periodic investigation and
valuation required by said Retirement law.
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12. Contributions required of Public Agency and its employees shall be paid
by Public Agency to the Retirement System within fifteen days after the
end of the period to which said contributions refer or as may be prescribed
by Board regulation. If more or less than the correct amount of
contributions is paid for any period, proper adjustment shall be made in
connection with subsequent remittances. Adjustments on account of
errors in contributions required of any employee may be made by direct
payments between the employee and the Board.
This amendment shall be on the __ day of------ __ _

BOARD OF ADMINISTRATION CITY COUNCIL
PUBLIC EMPLOYEES' SYSTEM CITY OF CARMEL-BY-THE-SEA

,}"":' 'V ...

KENNETH w. MARZIQJ9;'CHIEF PRESIDING OFFICER A>
ACTUARIAL & EMPLOYER SERVICES DIVISION 0
PUBLIC EMPLOYEES' RETIREMENT SYSTEM /:.?
AMENDMENT ERI 335
\Rev 8\02)
Witness Date
Attest:
Clerk
r"',.
v.: ...
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CERTIFICATION OF ORDINANCE
I, KAREN CROUCH, the undersigned City Clerk of the City of Carmel-by-the-
Sea, California, do hereby certifY that the foregoing is a true and correct copy of
Ordinance 2003-07 which was adopted on second reading on the 5th day of August, 2003
and published in the Carmel Pine Cone on August 15, 2003 pursuant to the Jaws of the
State of California and the City of Carmel-by-the-Sea.
DATED this 5'h day of August 2003.
I
J /j
i
Karen Crouch, City Clerk
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Memorandum of Understanding: Management Employees UNION
January 1, 2001 -June 30, 2004
(LMPcont.)
Marginally Satisfactory: The work performance is less than that expected of
a fully competent employee.
Unsatisfactory: The work performance is inferior to the standards required
for the position.
ARTICLE7
Directors Performance Bonus Proeram
The CITY and the UNION wish to establish a performance measurement program consisting
of a bonus opportunity for Department Directors covered by this Agreement. Such program
shall include a procedure for determining defined performance objectives and the amount of
monetary bonus to be awarded for achieving the defined objectives.
7 .1. The bonus program shall be in lieu of the Education Incentive and Longevity/Merit
Programs.
7.2 Effective November 1, 2001, Department Directors covered by this MOU shall by
mutual agreement with the City Administrator, establish performance objectives for
the next 12-month period and each 12-month period thereafter.
7.3 The parties agree that the CITY shall provide the resources to the Directors as
necessary in order to accomplish the performance goals.
7.4 The parties agree that, based upon the achievement of the performance objectives
established, a Director may be awarded an annual lump sum bonus payment based
upon the achievement of established performance objectives. The performance
bonus, if earned, will be awarded during the first pay period in December 2002,
following the initial 12-month evaluation period. Future bonus payments shall be
awarded annually in December of successive years.
7.5 The performance bonus may be awarded in a lump sum amount of up to a maximum
amount of five and one-half percent (5-Yz%) of base salary. The amount awarded
shall be determined by the City Administrator and may be an amount less than five
and one-half percent (5-Yz%) of base salary.
7.6 For purposes of calculating CalPERS retirement, the annual bonus payment shall be
reported as salary.
7.7 It is the intent of this agreement that the parties shall use their best efforts to reach
the goals that are agreed upon herein.
7.8 It is further agreed that not later than 6 months after performance goals have been
set, the City Administrator shall meet with the Director and review, in detail, the
status of the accomplishments in meeting the goals. [t is further agreed that the City
Administrator shall provide the Director with a written status report that sets forth
the accomplishments and those areas that require additional effort and the
methodology required in order to achieve said goals.
5
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Memorandum of Understanding: Management Employees UNION
January 1. 200\ -June 30, 2004
Directors Performance Bonus, (cont.)
7.9 If the City Administrator determines in the Director's performance evaluation that
none of the established goals have been met in the 12-month period, the City
Administrator may chose not to award a performance bonus to the Director.
7.10 The decision of the City Administrator regarding the amount of the performance
bonus to be awarded to the Department Director shall be final and not subject to
grievance.
ARTICLES
Retirement Programs
The CITY agrees to continue the same level of benefits under the California Public
Employees' Retirement System (PERS) that existed as of July 30, 2001 for the employees
covered by this Agreement for the term of this Agreement. In addition, the CITY will adopt
the Supplemental Pension Plan, "Laborers International UNlON of North America National
(Industrial) Pension Plan" for members of the UNlON.
8.1 Retirement benefits for eligible non-safety (miscellaneous) employees represented
by the UNION shall be those established by the Public Employees' Retirement
System (PERS) for local miscellaneous members, 2% @ 55 Full Formula.
8.2 Retirement benefits for eligible safety employees represented by the UNION shall
be those established by the Public Employees' Retirement System (PERS) for local
safety members, 2% @ 50 Full Formula.
8.3 The CITY shall pay the employer rate prescribed by the Public Employees'
Retirement System (PERS) in accordance with the rules and regulations governing
such employer contributions.
8.4 Effective July I, 2003, the PERS Public Safety Retirement Program shall be
amended for local safety members to provide the 3% @ 50 benefit Full Formula.
The employer cost of the 3% @ 50 benefit for the Fiscal Year beginning on July 1,
2003, will be paid by the CITY. In the event that the Actuarial Valuation for FY
2003-2004 changes the Employer rate to an amount greater than 14%, the costs of
the 3%@ 50 program shall be subject to re-negotiation for successor agreements,
beginning after June 30, 2004.
8.5 The CITY shall continue to maintain the following, contracted retirement options:
A. Single Highest Year
B. Tax Deferred Member Contribution (TDMC)
C. Fourth level of 1959 Survivors Benefit ($2.00 per month cost to the employee). The
City and the UNION agree to monitor the funding of this option. When only two
years of funding remain in this account the City and the UNION agree to reopen
negotiations on this issue to discuss future funding of this benetit.
6
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December 15,2003
Rich Guillen, City Administrator
City of Cannel-by-the-Sea
Carmel, CA. 93921
RE: Resignation and Retirement
TO: Rich Guillen and Council Members
I tender my resignation as Assistant City Administrator for the City of Carmel-by-the-Sea
effective December 31, 2003, at which time I intend to retire.
This resignation is submitted to the City Administrator and the members of the City
Council based on Council's approval of my retirement proposal accepted during Closed
Session following the regular Council Meeting December 9, 2003.
My understanding is the Council accepted the conditions of my formal Resignation
Proposal as follows:
I. Two (2) years additional service credit toPERS (ORD 2003-7).
2. Six (6) months severance pay.
3. All accrued sick leave hours applied as an extension of PERS service credit.
4. Buy-out of fifty pereent (50%) of accrued sick leave at my current hourly rate.
5. One hundred pereent (100%) Pay for Performance Measure Bonus for 2003.
6. Buy-out of any remaining vacation.
~ A i i ) aAflo
7
Ore 'Am io D te
/ 1 1 ; A ~
Rich Guillen
Assistant City Administrator City Administrator
c. Personnel
\
\
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December 22, 2003
Rich Guillen, City Administator
City of Cannel-by-the-Sea
Cannel, CA 93921
RE: Resignation and Retirement
TO: Rich Guillen and Council Members
01
I tender my resignation as Community and Cultural Director for the City of Cannel-by-
the-Sea effective December 31, 2003, at which time I intend to retire.
This resignation is submitted to the City Administrator and the members of the City
Council based on Council's approval of my retirement proposal on December 18,2003.
My understanding is that the Council accepted the conditions of my formal Resignation
Proposal as follows:
(]]Retirement effective 12131103.
-2. Two (2) years additional service credit toPERS (ORD 2003-7).
(]) Seven and one-half (7 Y.) month's severance pay.
4. All accrued sick: leave hours applied as an extension of PERS service credit.
~ ~ B u y - o u t of fifty percent (500/o) of accrued sick: leave pursuant to MOU, at
current hourly rate. .
/6. One hundred percent (100%) Pay for Performance Measure Bonus for 2003.
,ry Buy out of vacation balance.. pursuant to MOU.
Brian Donoghue
Community and C
Cc: Jane Miller, Human Resources/Personnel
Rich Guillen Date
City Administrator
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From: Michael Stamp[ma!lto:stamp@stamplaw.us]
Sent: Thursday, August 31, 2006 8:19PM
To: Rich Guillen
Subject: Confidential settlement discussion
Dear Rich,
0
My client turns 55 in June. The proposal is that she continues to
work until 12/31/06, is on admin leave through 6/30/07, and retires with a
buy-out of 12 months salary beyond that. She gets the performance
bonus due to her. The City would provide her with two additional years of
service credit for PERS.
DUring the admin leave period, she will cooperate with the City in
the transition to new leadership. The proposal would be structured as a
voluntary move on her part. although she is willing to provide a
complete release of claims if you and the City Attorney want such a document
(there are advantages and disadvantages on that
1
but we
1
re flexible).
I look forward to hearing from you.
Michael Stamp
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SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (hereinafter, "Agreement") is entered into between
Margaret Pelikan ("Pelikan'') and the City of Carmel-by-the-Sea (hereinafter, "City'').
RECITALS
1. Pelikan is employed by the City as Library Director, and has served the City and
the Harrison Memorial Library well and faithfully during her tenure with the City.
2. Pelikan desires to retire from City service upon the terms of this Agreement.
3. Pelikan and the City have agreed to terms that are fair and equitable, and that are
in the best interests of the parties.
NOW, THEREFORE, in consideration for the promises and terms set forth herein,.
Pelikan and the City covenant and mutually agree as follows:
COVENANTS
4. Effective December tl, 2006, Pelikan's active employment as Library Director
shall end, and she will remain on paid administrative leave through June 30, 2007.
During the time that Pelikan is on administrative leave, she may sell back to the
City vacation tiine as provided in the applicable MOU for full time employees. In
anticipation of the transition from Pelikan's tenure with the City, the City will not
assign new projects or work to Pelikan beginuing December I, 2006. Pelikan will
receive full benefits and salary through June 30, 2007.
Pelikan will receive her annual perfonnance pay of approximately $6,155 for
2006, payable in February 2007. On or about June 30,2007, Pelikan will receive
severance pay eqtl!ll to six months of her salary at the rate in effect at that time,
and shall be entitled to compensation for accrued sick leave and vacation pursuant
to the MOU in effect as of the date this Agreement is signed. Pelikan shall be
entitled to utilize all or a portion of her accrued sick leave at her option for service
credits pursuant to applicable regulations. In addition, the City shall provide
Pelikan with two years PERS service credit, subject to Pelikan's election to retire
effective July I, 2007.
5. Ms. Pelikan will announce on or about November l, 2006 that she will be leaving
the City as Library Director. She will explain that she is leaving voluntarily, and
that she is grateful for the opportunity to serve the City and the Harrison Memorial
Library during her years of service. The City Administrator shall provide Pelikan
with a letter of recommendation, and shall be designated by Pelikan and the City
as the contact person for inquiries about Pelikan's work with the City and her
qualifications.
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6. In consideration for the performance of the foregoing promises, Pelikan hereby
and forever fully releases and discharges the City and its current and former
employees, officers, agents, insurers, attorneys and representatives of each of
them (hereinafter, collectively, the "Released Parties"), from any and all
allegations, charges, grievances, causes of action, judgments, liens, indebtedness,
damages, losses, claims, liabilities, and demands of whatsoever kind or character,
known or unknown, suspected to exist or not suspected to exist, anticipated or not
anticipated, including claims pursuant to Title VII of the Civil Rights Act, the Age
Discrimination and Employment Act, the Older Workers Benefit Protection Act
( 201, 104 Stat. 983, 29 U.S.C. 626(f)), the California Fair Employment and
Housing Act and any other administrative agency complaints, without limitation,
arising from or related or attributable to Pelikan's employment.
Ms. Pelikan understands and agrees that this Settlement Agreement extends to all
allegations, charges, grievances, disputes or claims of every nature and kind, both
known or unknown, suspected or unsuspected, past, present or future, arising from
or attributable in any way to matters and claims occurring prior to the date of
execution of this Agreement, and to any claim for compensation other than as
provided in this Agreement.
7. Pelikan and the City acknowledge that this Agreement was entered into
voluntarily, and expressly also acknowledge that the respective legal counsel for
each party has provided the respective parties with a copy of California Civil
Code Section 1542 in regard to known and unknown claims.
Therefore, Pelikan and the City expressly waive the provisions of
California Civil Code Section 1542, and further waive any rights each
party might have to invoke said provisions now or in the future with
respect to the releases set out in this Agreement.
8. Pelikan agrees that she has had twenty-one (21) days to consider this Agreement
and sign the Agreement voluntarily. In the event that it is subsequently
determined that she has not had twenty-one (21) days to consider this Agreement,
Pelikan agrees that the parties shall be deemed to have re-executed this
Agreement precisely twenty-one (21) days after the date of first consideration of
the Agreement. Pelikan shall have the right to revoke this Agreement within
seven (7) days of signing it. To revoke this Agreement, Pelikan must send a
written letter to the City Administrator:
Rich Guillen
City Administrator
P.O. BoxCC
2
0262

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9. Ms. Pelikan acknowledges that she has carefully read this Agreement, that she has
been provided a fuJI and ample opportunity to study it, that she has consulted with
her attorney prior to signing it, that she fully understands its final and binding
effect, that she is signing this Agreement voluntarily.
IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement
on the date(s) hereinafter indicated:
. DATED: Octobebl_b006
DATED: October W , 2006

c en, 1ty strator
Approved as to fonn:

ey, City of Cannel-by-the-Sea
3
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From: Michael Stamp [mailto:stamp@stamplaw.us]
Sent: Tuesday, February 19, 2008 4:17 PM
To: Rich Guillen
Subject: Confidential Personnel Matter
Dear Mr. Guillen,
0
I have been retained by Sandra Farrell in regard to her employment with the City. I would like to meet
with you to discuss the situation. I am available to come to your Office, or to meet here in Monterey if
that is more convenient.
Thank you.
Sincerely,
Michael Stamp
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The Carmel Pin .. Can&, JA
seen a.lotofchariges-
. ,, ' ' . : . ' ----- -- . '''.' ,. . ' ' -, _- ' --- -. ',. -. . ' '' . ,_
. By MARY .
, ,,,--._ -.. -Y;. . .; .:. . . -;
very;. famol:IS.
iti..; . and nothinw in: Famll's work' :
ing tickets . . . . experienc& or bwwledgO: oO , . ,," . , . . .
!rJ. administrative.' serviC<lSj. ,m, worked on city operslions preparecL her. .' . , , -'. ' ,: . . . , ..
they werutiU drafti:ctOii a typewriter;_,.. .. , for working with ClinU!astwood; whose adorln&falllcrowdi
"IWlllth&whizban,P'she.ceealled:."lcarnein.witlimy edcityhall;;,. -" . " ..
handy Olivetti typewrilel! with 111inea of memory.: : "It waa very busy. and sometimilt ver}r scary; becauSe h.,
Of the town.,. idio11)111Ct11ti<t history. she remembered f.,.. would get thmll agoinstllirnt Famll said; addlna that ahell
mer Mayor GUIInlll Norbel!!l who served fuml.l976 to 19814>- not partiCillarly." comfol1ilblit in. -r. just(
"wllnling Ill fence the )'inlllllaw 16 pq P" clawiilg. to'gefartyWI!ete nelc rum; s4 ,. 'wha!.i difr :

,., . ;. ;;ctf ." . .. .

: ''Tiioy didi{t Viw sheo !ai wtm.-I!Ut*ood lirougbt witlt him suclfcballenges, he
ills etactly tho witlt wide open ann.. and thd' <:Oun. also i:ngender:cd a sense of hope following a series, of c,ollll .
cu spending money ondostinaliaa t_ourisnl, 1'bey-the lien-, .cilJ lh:\1 bad_ held right rein. Ott diiJ cit)'; lii!COrding,to
, __ ::.
<'' _ , 'i: . J .. _.-.'_ _ <- .f' :;

Sliecootimlealaapp:e<:falo lfio pei.eMdshiftli'Oni tiil)i_; > ,. "'"' 'l :'-' '' . ....
enclavo to lllelllbOt of th& Peninlula See FARRELL pagf 29/to
0
2
6
7
FARRELL
.-.
From pttgt JA
. "
,umag tllf. t.....,
Last week,. sbe compliniimtO<I
inmd!l>le staff" to whom sbe'm>eatly
ga; .. : ,._.:, .. ,.,..

96iiii&':I'W for-doing
. sueha....,;,derfu!_' .
' . . .. -people,, ... ... .
31 care a said: .. v;t .. : .
t
. - .... _...... . . ;. . . . ., ...... : ''-": "-'-n -::'-'"
emn

arnaz:tng. . .. , ..... ranc "" . .:,Wlt
But Farrell said bti mother's needi.coli\- ,, wbicli mga-
pelled Irette leave the teSm. : . ;:.::11i:zestbe >cmi"SbirlhdaY:i:O!Cbnrtioli and
:. ;, ': ..
0268
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From: Michael Stamp [mailto:stamp@stamplaw.us]
Sent: Tuesday, March 11, 2008 12:45 PM
To: Rich Guillen
Subject: Confidential Personnel Matter
Dear Rich,
0
My proposal for Sandra Farrell's retirement from the City is below. Sandy would like to leave on a
positive note, and is willing and able to provide whatever transition efforts you might require.
I. Last day at work would be March 31, 2008, although she would stay on the payroll through July 31,
2008.
2. She would receive 2 years additional service credit. My understanding is that this might take Council
action; !leave that to you.
3. Accrued sick leave hours would be applied as an extension of the PERS service contract.
4. Sick leave buy out at 50%.
5. Accrued vacation/leave paid on or befor.e July 3 I, 2008.
I'm available to talk at your convenience. My phone is 373 1214, extension II (which is a confidential
mailbox if I'm not here to pick it up, or if you call after hours). Or email if you'd prefer.
Thank you for your professional and personal courtesy.
Michael Stamp
0270
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GUILLEN DECLARATION EXHIBIT ll
0271
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SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Releue Agreement {hereinafter, "Agreement; is entered into between
Sandra Farrell ("Fmell") and the City ofCmnelby-the-Sea (hereinafter, "City").
RECITALS
I. Ms. Farrell is employed by the City, and bas served the City well and faithfuJJy
during her tenure with the City.
1. . Ms. Farrell desires to retire from City service upon the terms of this Agreement.
l. Ms. Farrell and the City have agreed to terms that are fair and equitable, and that
are in the best interests of the parties.
NOW, THEREFORE. in consideration for the promises and terms set forth herein,. Ms.
Farrell and the Cil:y covenant and mutually agree as follows:
COVENANTS
4. Effective April IS, 2008, Ms. Farrell's active employment with the City shall end,
and she will be responsible only for advising the City as needed on the policies'
update upon which she has been worting. During the period of April 16 to June
~ 0 . she would be available to consult with the City on the Municipal Direccory,
planning for the Annual Halloween/Binhday parade, FPPC filings, and other
transition tasks on an as-requested and as-available basis. She will receive full
benefits and salary through June 30, 200&. and will retire ftom City service
effective at the close of business on June 30, 2008.
Oa June 30, 200&. Ms. Farrell will be entitled to compensation for accrued sick
leave and vacation/leave, including sick leave buy-out at SO% and vacation/leave
at I 00%. She shall be entitled to utilize all or a ponion of her accrued sick leave
at her option for service credits pursuant to applicable regulations. In addition, the
City shall provide her with two years PERS service credit, to take effect no later
than June 30, 2008.
5. The City acknowledges that Ms. farrell will announce on or about April 9, 2008
that she will be leaving the City service. She will explain that she is leaving
voluntarily, and that she is grateful for the opponunity to serve the City during her
years of service. The City Administrator shall provide her upon request with a
letter of recommendation, and shall be designated by Ms. Farrell and the City as
the contact person for inquiries about her career and work with the City and her
qualifiCIItions.
6. In consideration for the perfonnance of the foregoing promises, Ms. Farrell hereby
and forever fully releases and discharges the City and its current and former
employees, officers, agents, insurers, attorneys and representatives of each of
0272

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!hem (hereinafter, collectively, !he "Released Parties"), from any and all
allegations, charges, grievanees, causes of action. judgments. liens, indebtedness,
damages, losses, claims, liabilities, and demands of whatsoever kind or character,
known or unknown, suspected to exist or not suspected to exist, anticipated or not
anticipated, including claims punuant to Title VU of !he Civil Righi!J Act. !he Age
Discrimination and Employment Act, the Older Workers Benefit Protectioa Act
( 201, 104 Stat. 9g3, 29 U.S.C. 626(f)), the California Fair Employment and
Housing Act and any other adminblnltive agency complaints, without limilation,
arising from or related or attributable to Farrell's employment.
Ms. Farrell understands and agrees !hat this ~ e t t l e m e n t Agreement extends to all
allegations, charges, grievances, disputes or claims of every nature and kind, bolh
known or unknown, suspected or unsuspected, past, present or future, arising from
or attributable in any way to matters and claims occurring prior to the date of
execution of this Agreement, and 10 any claim for compensation olher !han as
provided in !his Agreement.
7. Ms. Farrell and the City acknowledge !hat this Agreement was entered into
voluntarily, and expressly also acknowledge that the respective legal counsel for
each party has provided the respective parties with a copy of California Civil
Code Section I S42 in regard 10 known and unknown claims.
Therefore, Farrell and !he City expressly waive !he provisions of
California Civil Code Section IS42. and further waive any righi!J each
party might have 10 invoke said provisions now or in the future with
respect to the releases set out in this Agreement.
8. Ms. Farrell agrees !hat she has had twenty-one (21) days to consider this
Agreement and sign !he Agreement voluntarily. In the event !hat it is
subsequendy determined !hat she has not had twenty-one (21) days to consider
this Agreement, Farrell agrees !hat the parties shall be deemed to have re-executed
this Agreement precisely twenty-one (21) days after the date of first consideration
of the Agreement. Farrell shall have the right to revoke this Agreement within
seven (7) days of signing it. To revoke this Agreement, Farrell must send a
written Jetter to the City Administrator:
Rich Guillen
City Administrator
P.O.BoxCC
9. Ms. Farrell acknowledges that she has carefully read !his Agreement, !hat she has
been provided a full and ample opportunity to study it, !hat she has consulted wilh
her attorney prior to signing it, that she fully understands its final and binding
2
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, 1 ~ ~ ' ' ' ~ ' ' ' ' ,,, ;. '''''"' ,,,, ,, ..... ,, .,,,,,,,,,, .
1
IN WITNESS WHEREOF. l h ~ undersigned have executed this Settlement Agreement
on the dmc(sl oorcinaft.:r indicate-d:
UATED: April b, 2008
DATKD: Aprill1:; 2008
__A?.;l. ~ ---
Rich Guillen, City Administmtor
Approved as w tom1:
~ ~ ~
Donald G. Freeman
City Anomey, City of Carmel-by-the-Sea
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PROOF OF SERVICE
DECLARATION OF RICH GUILLEEN SUPPORTING MOTION BY DEFENDANT
CITY OF CARMEI.-BY-THE-SEA TO DISQUALIFY PLAINTIFF'S COUNSEL
on the following interested party( s) in this action:
D
Michael W. Stamp
Monterey, CA 93940
VIA OVERNIGHT MAILJCOURIER- CCP l013(c):
knowledge.
-
[AndreaS. Bolnick]
99081.1 CA100014
- l -
OF RICH GUILLENSUPPORTING MOTION BY -DEFENDAi-rfCITY OF CARMEL-BY-
THE-SEA TO DISQUALIFY PLAINTIFF'S COUNSEL
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Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
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COUNTY OF MONTEREY
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Plaintiff,
v.
Defendants.
Case No. M99513
Time: 8:45a.m.
Dept.: 4 (Hon. Larry E. Hayes) 14
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PLAINTIFF'S SUPPLEMENTAL BRIEF IN RESPONSE TO
CITY'S REPLY BRIEF AND EVIDENTIARY OBJECTIONS
CASE No. M99513
PLAINTIFF'S SuPPLEMENTAL BRIEF IN RESPONSE TO
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2 On October 15, 2009, the City filed a ten-page Reply Brief and a declaration of
3 Richard Guillen. The Reply Brief does not accurately state or address the applicable
4 legal test, and the City's papers raise new issues and information. Plaintiff Jane Miller
5 submits this response to the City's newest claims.
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I.
FOR SEVEN YEARS, THE CITY DID NOT CLAIM A CONFLICT.
OR PURSUE LEGAL OPTIONS AVAILABLE TO IT.
We start with the City's claim, first made in the Reply Brief, that the City's seven-
year silence with regard to the alleged conflict is excused. The claim is that "[b]efore
this lawsuit was filed in June 2009, the City could not have moved to disqualify Mr.
Stamp." (Reply Brief, p. 10, lines 8-9.) The City's argument is based only upon a direct
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misrepresentation of the authority cited by the City. The City says that The Rutter
Group's Professional Responsibility Practice Guide (2005 ed.) states that a "motion to
disqualify conflicted counsel cannot be brought where there is no pending litigation."
(Reply Brief, p. 10, lines 5-6.) The City omits the following sentence, which states the
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applicable rule: 'In this situation, a separate lawsuit to enjoin the representation is
Qf1nerally appropriate.' (Machado v. Superior Court (2007) 148 Cai.App.4th 875, 881,
quoting The Rutter Group Practice Guide [2005 ed.], underlining added.)
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The City's argument refers to Machado as the authority cited by The Rutter
Group (Reply Brief, p. 10, line 8). (In fact, Machado cites The Rutter Group.) Machado
directly addressed situations where a non-party seeks to file a collateral motion in an
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ongoing case in order to assert a conflict claim. The Court of Appeal in Machado
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upheld the right to do so. The holding in Machado is that a person does not have to be
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a party in a lawsuit in order to be able to seek and obtain injunctive relief to prevent a
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conflict. It is apparent from Machado and from The Rutter Group citation that the City
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did not have to be a defendant in a pending lawsuit in order to litigate a claimed conflict
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and obtain injunctive relief.
CASE No. M99513
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1 On page 6 of its Reply Brief, the City cites Morrison Knudsen Corp. v. Hancock,
2 Rothert & Bunshoft LLP (1999) 69 Cai.App.4th 223, which is also cited by Machado
3 (148 CaLApp.4th at p. 881). In Morrison, the entity claiming a conflict was not a party in
4 litigation, but filed its own action asserting, among other claims, a right to an injunction
5 to prevent a conflict from taking place. (69 CaLApp.4th 223, 228.) The injunction was
6 issued (id., at p. 229) and was upheld on appeal (id., at p. 238).
7 The City's newly stated rationale for not raising a claim of conflict is supported by
8 no law and no authority. The law is exactly the opposite of what the City has claimed.
9 For seven years, the City did not assert a claim of conflict, or even raise the issue. The
10 City's claim that it had no legal remedy is without any merit
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THE CITY MISSTATES THE APPLICABLE LEGAL TESTS.
The City Misapplies Farris in its Evidentiary Objections and its Reply Brief.
Throughout its evidentiary objections and in its Reply Brief, the City takes a
narrow holding of one part of Farris v. Fireman's Fund Insurance Company (2004) 119
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Cai.App.4th 671, and tries to create an entire body of law out of it Farris is an
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insurance coverage case which states that in determining "whether there is a
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connection between the two successive representations" the Court's investigation "may
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not include an 'inquiry into the actual state of the lawyer's knowledge' acquired during
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the lawyers' representation of the former client" (Farris, p. 679; see City's Reply Brief
(pp. 2, 4) and City's Evidentiary Objections (passim).) The City misreads this narrow
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holding on this single point as a broad iron-clad rule that prevents the Court from
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considering information from declarants about the former representation. That is not
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the law.
B. The Applicable Rule.
The test for successive representation has two elements. The first element is
whether the attorney was personally and directly involved in providing legal services to
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CASE No. M99513
2
CrrY'S REPLY BRIEF AND EVIDENTIARY OBJECTIONS
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1 the former client. (Faughn v. Perez (2006) 145 Cai.App.4th 592, 603.) The second
2 element is whether a substantial relationship exists between the former and current
3 representations. (Ibid.) The second element is at issue on this motion.
4 In considering the second element, the Court's role is to determine whether the
5 party seeking disqualification has shown "that the matters embraced in the pending suit
6 ... are substantially related to the matters or cause of action wherein the attorney
7 previously represented ... the former client." (Jessen v. Hartford (2003) 111
8 Cai.App.4th 698,707, citing River West, Inc. v. Nickel (1987) 188 Cai.App.3d 1297.)
9 The Courts emphasize the "pragmatic" definition of the words "substantial relationship"
10 by focusing upon the nature of the former representation: whether the subject matters,
11 facts, or issues are substantially the same (Jessen, p. 708, citing Ahmanson v.
12 Salomon Brothers (1991) 229 Cai.App.3d 1445, 1453). The Fifth District Court of
13 Appeal (Justice Dibiaso, acting P.J.) held that the existence of a "substantial
14 relationship" is determined by reference to the similarity between the legal problems
15 involved in the former representation and the current representation (Jessen, p. 709).
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Thus, successive representations will be "substantially
related" when the evidence before the trial court supports a
rational conclusion that information material to the
evaluation, prosecution, settlement, or accomplishment of
the former representation given its factual and legal issues is
also material to the evaluation, prosecution, settlement or
accomplishment of the current representation given its
factual and legal issues.
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(Jessen, p. 713.) To be "material." the information from the former representation must
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be found to be directly at issue in, or have some critical importance to. the second
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representation. That material information must be confidential information. (Farris v.
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Fireman's Fund Insurance Company (2004) 119 Cai.App.4th 671 at 680, in which
2
6 Justice Dibiaso clarified his 2003 holding in Jessen.) The Court's inquiry
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focuses "upon the general features of the matters involved
and inferences as to the likelihood that confidences were
CASE No. M99513
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CiTY'S REPLY BRIEF AND EVIDENTIARY OBJECTIONS
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imparted by the former client that could be used to adverse
effect in the subsequent representation." (Rest3d, Law
Governing Lawyers. 132, corn. d(iii); see Koch v. Koch
Industries (D. Kan. 1992) 798 F. Supp. 1525, 1536 [the
proofs on a motion to disqualify counsel in a subsegu!;!nt
representation case should enable the court 'to reconstruct
the attorney's representation of the former client. to infer
what confidential information could have been imparted in
that representation. and to decide whether that information
has any relevance to the attorney's representation of the
current client'] .... )
(Jessen, p. 681, underlining added.) Disqualification depends upon the proof of the
strength of similarities between the legal problem involved in the former representation
and the legal problem involved in the current representation. (/d., at p. 708.)
Thus, the procedure the Court follows to determine whether a substantial
relationship between the former and current representation exists is this:
1. To review the proofs on the motion to reconstruct the facts and
circumstances of the former representation,
2. To infer what confidential information could have been shared
therein. and
3. To decide whether that information contains material confidential
information that would be relevant to the current representation.
In following this procedure, the Courts focus on the admissible evidence. The
Courts pay particular attention to the declarations of the individuals with personal
knowledge of the former representation, which helps the Court to reconstruct the
underlying facts and circumstances. (See, e.g., Fanis, p. 606, fn. 8, p. 685, p. 686, fn.
14; Faughn, pp. 596-597; Morrison Knudsen Corp. v. Hancock, supra, 69 Cai.App.4th
223, 236.) As the Fifth District Court of Appeal explained, it is not a "bright line"
standard, and "must be applied to individual cases by the exercise of the [trial] court's
considered judgment based in reason, logic, and common sense." (Jessen, p. 713.)
CASE NO. M99513
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1 Here, the declarations of City Administrators Schmitz and Kersnar, Personnel
2 Officer Pullen, Human Resources Manager Miller, and Miller's attorney Stamp- the
3 witnesses with personal knowledge of the former representation - provide the evidence
4 of the facts and circumstances of the former representation, including the following:
5 1. There is no material confidential information obtained from the former
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representation that is applicable to Ms. Miller's claims. (Schmitz Decl., 119;
Kersnar Decl., 118; Pullen Decl., 1J9; Miller Decl., 119; Stamp Decl., 1184.)
8 2. The legal issues were different from the Miller issues. (Schmitz Decl..113;
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Kersnar Decl..11113. 4; Pullen Decl .. 11113, 6; Miller Decl .. 11118. 11-12;
Stamp Dec1.,111J19, 21, 22, 25, 26.)
11 3. The City's key decisionmakers in the former representation were different
12 then. (Schmitz Dec!., 117; Kersnar Decl., 116; Stamp Decl., 1124).
13 4. Stamp never advised the City on claims regarding forced retirement, or
14 claims of discrimination or gender-based favoritism, and there were no such
15 claims under the previous City Administrators. (Schmitz Decl., 113; Kersnar
16 Decl., 114; Pullen Dec!., 113; Stamp Decl., 1180). Ms. Miller's Complaint on
17 file herein centers around those legal issues.
18 Citing Farris, the City argues that "it is improper for a court to consider such
19 information" (Reply Brief, p. 2, lines 9-10; seep. 2, lines 24-28; p. 4, lines 2-3, 18-20; p.
20 5, lines 8-10, 16-18). The City materially misreads and misapplies Farris.
21 c. Application of the Substantial Relationship Test.
22 .1. Farris v. Fireman's Fund Insurance Company (2004) 119 Cai.App.4th 671.
23 In Farris. Jason Farris alleged bad faith and a breach of an insurance contract
24 issued by the insurance company. (Farris, p. 676.) The company sought to disqualify
25 Farris's attorney due to his past work for the company on coverage issues involving 226
26 claim files from 1987 to 1997. (/d., at p. 677.) Unlike the present case, the insurance
27 company's senior employees who had personal knowledge testified that as part of the
28 former representation the attorney discussed company strategies on settlement,
MILLER V. CITY OF CARMEL -BY THE-SEA
CASE NO. M99513
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1 litigation, and claims handling in connection with coverage matters. (Farris, p. 677.)
2 The key evidence was the statements of company personnel and of the attorney
3 as to the legal problems involved in the former representation and the legal problems
4 involved in the current representation. (Farris, pp. 681-682.) The Court of Appeal
5 direct evidence in "numerous declarations from key decision makers
6 stating that they had discussed with [the attorney) [insurance company] practices.
7 including litigation and settlement strategies, in coverage matters." (Farris, p. 682, fn.
8 8.) The Court held that "the extensive knowledge derived from his pervasive
9 representation in coverage disputes" required the attorney's disqualification in the bad
10 faith claim which was materially related to the coverage issues. (Farris, p. 682, fn. 8, p.
11 684.) The Court found that the evidence showed that the attorney was instrumental in
12 formulating coverage strategies and philosophies, trained senior claims personnel
13 about coverage matters, and that it was likely that some witnesses in the current action
14 would be senior claims personnel who formerly worked closely with the attorney in the
15 former representation of the insurance company. (Farris, p. 685.) It reversed the trial
16 court due to the trial court's reliance on "the actual state of the lawyer's knowledge" as
17 evidenced by the attorney's own assertions that were not supported bv any insurance
18 company declarant (Farris, p. 683, fn. 10; see Jessen, at p. 710).
19 In dicta, the Court suggested that it "certainly can envision circumstances where
20 the passage of time might be shown to have eliminated a prior substantial relationship
21 due to such events as changes in corporate structure, turn over in management, and
22 the like." (Farris, p. 686.)
23 2. Faughn v. Perez (2006) 145 Ca!.App.4th 592.
24 In Faughn, the Court of ApRea! considered declarations of three area claims
25 managers and of the general counsel employed by the party seeking disqualification
26 (Faughn. p. 596). The Court carefully reviewed the declarations for evidentiary support
27 for the moving party's claims. The Court noted that numerous assertions made by the
28 moving party were unsupported or immaterial. (E.g., Faughn, p. 605, fn. 9 [no citation
CASE No. M99513
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1 to supporting evidence in the record], p. 607 ["no such evidence is present in the
2 record"], p. 609 ["the record does not show that the information contained in that
3 [referenced] document is material to the present litigation in a way that gives plaintiffs
4 an advantage"].) The Court held that "without evidence to connect" the issues in the
5 current case with those involved in the former cases, "we are unwilling to infer that it
6 exists." (Ibid.)
7 The City's Reply Brief tries to distinguish Faughn by arguing that the attorney in
8 that case had not previously provided legal services to the hospital, only to the parent
9 company. (Reply Brief, p. 6, line 26 to p. 7, line 4.) That distinction is insufficient
10 because in Faughn the Court of Appeal applied the substantial relationship test used in
11 a successive representation situation involving the same client. (Faughn, pp. 602-603.)
12 In applying the test, Court reviewed the facts and circumstances of the prior
13 representation as shown in the admissible evidence, and determined that the moving
14 party had not met its burden under the test. (ld., pp. 61 0-611.) That test, and the
15 mandated consideration of relevant evidence, are applicable and binding on this Court.
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18
;1. Monison Knudsen Comoration v. Hancock, Rothert & Bunshoft LLP {1999)
6!:1 Cai.App.4th 223.
In Monison, another insurance case, the Court of Appeal held that the
successive representation test applied (Monison. pp. 233-234), because although the
19
law firm had not previously represented Morrison (id . at p. 227), it was monitoring
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counsel for Morrison's insurance company for professional liability claims (id., at p.
235). Among the claims monitored by the law firm was one involving whether Morrison
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had adequately experienced personnel on the job and whether soils issues were
misanalyzed, resulting in the placement of a clay pad in an unstable location. The
current matter involved Morrison's approval of "severely corrosive" sand for a road
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project affecting metal culverts. (!d., at p. 235.)
The Court carefully reviewed declarations offered by both sides (Monison, pp.
235-236), and found the declarations of Morrison's key decision makers with
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MILLER V. CJlY OF CARMEL-BY-THE-SEA
CASE No. M99513
7
CilY'S REPLY BRIEF AND EVIDENTIARY OBJECTIONS
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1 actual knowledge who stated that the law firm had considerable exposure to Morrison's
2 litigation policies and strategies (id., at p. 236) and to Morrison's officers, advised on the
3 value of cases, and participated in settlement discussions (id., at p. 235). The Court
4 also found that the firm's ongoing work as monitoring counsel gave it privileged
5 information about Morrison's financial condition. For all these reasons, the Court held
6 that a substantial relationship existed, and the firm was disqualified (id. at p. 238}.
7 4. The Present Action.
8 The City's moving papers do not provide any competent evidence and fall short
9 of the showing required to carry the City's burdens of proof and persuasion. Plaintiffs
10 evidentiary objections filed October 8, 2009 should be sustained for each of the
11 reasons stated therein.
12 The declarations of Schmitz, Kersnar, Pullen, Miller, and Stamp provide the
13 factual information required for the Court's inquiry under the Jessen test as clarified by
14 Fanis. Those declarations are based on personal knowledge of the former
15 representation, and establish critical differences between the former representation and
16 the current representation. The evidence shows that Stamp was not privy to any
17 confidential strategy, interpretation, or other confidential information material to the
18 legal issues in Ms. Miller's case, or that would provide an unfair advantage in Ms.
19 Miller's case. Unlike the evidence in Fanis and Monison, the four senior employees
20 with personal knowledge all agree with the attorney that the former matters provided no
21 confidential material information applicable to the current matter.
22 Unlike the evidence in Fanis, the evidence presented on this motion shows that
23 Stamp's former representation of the City was neither pervasive nor recent. The former
24 representation was intermittent and on a case-by-case basis, and the key decision
25 makers are not the same. (Kersnar Decl., ~ 6, Schmitz Decl., ~ 7, Stamp Decl., ~ 24.)
26 Unlike the private insurance company contracts, private company litigation strategies,
27 and confidential financial information at issue in Fanis and Monison, the City "policies"
28 at issue here are public documents, publicly adopted, publicly reviewed, and publicly
CASE No. M99513
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1 administered. They are not secret or confidential in any sense.
2 Unlike the evidence in Morrison, Stamp was never privy to any discussions with
3 key City decision makers regarding any employment litigation, and the former personnel
4 are no longer with the City in any event. Stamp does not monitor claims against the
5 City. He has no confidential information regarding City finances, which are public. The
6 City is a public agency, not a private company.
7 The burden is on the party seeking disqualification, as explained in our earlier
8 briefing. To determine whether that party has carried its burden, the Court is to
9 carefully review the admissible evidence for factual support for each party's claims.
10 Here, the proofs on the disqualification motion establish that the facts and
11 circumstances of the former representation did not provide material confidential
12 information relevant to Ms. Miller's case. The City has not carried its burdens: the
13 burden of proof and the burden of persuasion. Substantial evidence supports the
14 denial of the motion to disqualify counsel.
15 CONCLUSION
16 For the reasons states above and in Jane Miller's opposition to the motion, and
17 in the interests of justice, the motion to disqualify counsel should be denied.
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20 Dated: October 22, 2009
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CASE NO. M99513
Respectfully submitted,
ellJh
Michael W. Stamp
Attorneys for Plaintiff, Jane Kingsley Miller
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Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
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COUNTY OF MONTEREY
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Plaintiff,
v.
Defendants.
Case No. M99513
EVIDENTIARY OBJECTIONS TO CITY'S
REPLY BRIEF AND RICHARD GUILLEN'S
DECLARATION
Time: 8:45a.m.
Dept.: 4 (Hon. larry E. Hayes}
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selected portions of the City's Reply Brief and the Declaration of Richard Guillen filed
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October 15, 2009.
In the City's Reply Brief, the City continues its practice of making unsupported
factual statements in the body of the argument, without supporting them with evidence.
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In evidentiary objections, Plaintiff Miller previously pointed out that same basic defect by
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the City in the City's moving papers. The City did not respond to the objection, but
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instead repeated the tactic in the City's reply brief. Thus, Plaintiff raises the objection
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again in response to the City's Reply Brief, and cites the appropriate authority.
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MILLER V. CrrY OF CARMEL -BY-THE-SEA
CASE NO. M99513
1
EVIDENTIARY OBJECTIONS TO
CrrY'S REPLY BRIEF AND GUILLEN'S DECLARATION
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1 EVIDENTIARY OBJECTIONS TO CITY'S REPLY BRIEF
2 OBJECTION NO. 1
3 ;:>tatement objected to: In the City's argument, the City states that" ... the City
4 has a letter that Mr. Stamp wrote to the then Personnel Director Jerry Pullen, copying
5 then-City Manager Doug Schmitz, enclosing the City's harassment policy with Mr.
6 Stamp's handwritten comments on and revisions to the policy." (City's Reply Brief, p. 3,
7 lines 19-23.)
8 Grounds for objection: The City cites no evidence in the record for its
9 statements. Matters stated in the argument but not supported by verified evidence
10 (declarations, in this case) cannot be presumed true, and are not admissible evidence.
11 (Smith, Smith, & Kring v. Superior Court (1997) 60 Cai.App.4th 573, 578.)
12 EVIDENTIARY OBJECTIONS TO THE GUILLEN DECLARATION
13 OBJECTION NO.1
14 Statement objected to: "In August 2006, Mr. Stamp emailed me that he
15 represented Margaret Pelikan, who at that time was employed as the City's Library
16 Director. Mr. Stamp stated in the email that Ms. Pelikan was turning 55 in June and
17 that she would like to retire with the golden handshake and would like to receive paid
18 leave and her annual performance bonus." (Guillen Declaration, p. 4, lines 21-24.)
19 Grounds for objection: Mr. Guillen's characterization of the email from Stamp is
20 not accurate, and is hearsay. The actual email is Exhibit 6 to the Guillen Declaration.
21 The email makes no mention of the "golden handshake," mentions a possible "release
22 of claims," and seeks, inter alia, 18 months' salary and benefits to be paid by the City.
23 The characterization by Guillen is undeniably inaccurate.
24 OBJECTION NO.2
25 Statement objected to: "In February 2008, Mr. Stamp contacted me by email
26 stating that he represented Sandy Farrell, who was working as an Executive Assistant
27 for the City, and that he would like to meet with me to discuss her employment
28 Mr. Stamp conveyed to me that Ms. Farrell wanted to retire and wanted the golden
CASE No. M99513
2
CiTY'S REPLY BRIEF AND GUILLEN'S DECLARATION
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1 handshake." (Guillen Declaration, page 5, lines 18-21.) The statement purports to be
2 what Mr. Guillen was told in an email dated February 19, 2008, and which is attached
3 by the City as Exhibit 8 to the Guillen declaration.
4 Mr. Guillen's characterization of the email is hearsay (Evid. Code, 1200) and
5 misleading. Mr. Guillen's testimony inserts this sentence into the email: "Ms. Farrell
6 wanted to retire and wanted the golden handshake" (which is not in the email and was
7 not communicated). He uses that made-up sentence to take the place of the actual
8 text, which is much more prosaic: "I am available to come to your Office, or to meet
9 here in Monterey if that is more convenient". (See Exhibit 8 to the Guillen declaration.)
10 OBJECTION NO.3
11 Material objected to: Photocopy of Carmel Pine Cone newspaper article attached
12 as Exhibit 9 to the Guillen Declaration. (See Guillen Declaration, p. 6, lines 5-6.)
13 Grounds for objection: The article referred to in the Carmel Pine Cone by Mr.
14 Guillen is double hearsay. It is a report in a newspaper of what Mr. Guillen may or may
15 not have said out of Court. Mr. Guillen is offering for the truth of the matter a public
16 relations comment as a prior consistent statement by Mr. Guillen. (Tibbetts v. Van De
17 Kamp (1990) 222 Cai.App.3d 389, fn. 5 ["Generally, newspaper articles are
18 inadmissible to prove their contents because of the hearsay rule"]; see also Evid. Code
19 791 [requirements for admission of consistent statement].)
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MtLLERV. CITY OF CARMEL-BY-THE-SEA
CASE No. M99513
ichael W. Stamp
Molly E. Erickson
3
CiTY'S REPLY BRIEF AND GUILLEN'S DECLARATION
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Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
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COUNTY OF MONTEREY
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Plaintiff,
v.
Case No. M99513
APPLICATION FOR ORDER GRANTING
LEAVE TO FILE SUPPLEMENTAL
RESPONSE BRIEF BY PLAINTIFF;
[PROPOSED] ORDER
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Defendants.
Time: 8:45 a.m.
~ ~ ~ - - - ~ - - - - - - - ' ' Dept: 4 (Hon. Larry E. Hayes)
APPLICATION FOR ORDER GRANTING LEAVE TO FILE
RESPONSE PAPERS BY PLAINTIFF
I, Molly E. Erickson, declare as follows:
I am an attorney at law, licensed to practice before this Court. I am employed in
the Law Offices of Michael W. Stamp. The statements made in this Declaration are
22 based upon my own knowledge.
23 Plaintiff Jane Kingsley Miller makes this application to allow her to file a
24 supplemental response brief based upon new arguments, claims, and authorities cited
25 by Defendant in the Defendant's Reply Brief filed October 16, 2009. The application is
26 made on the grounds that points raised by the moving party (Defendant City) for the
27 first time in a reply brief need not be considered by the Superior Court, but can be
28
1
MILLER V. CITY OF CARMEL-BY-THE-SEA APPLICATION FOR ORDER GRANTING LEAVE TO FILE SUPPLEMENTAL
CASE NO. M99513 RESPONSE BRIEF BY PLAINTIFF; [PROPOSED] ORDER
0289
0
0
1 considered if the Court gives the responding party an opportunity to respond. (AIIiant
2 Ins. Services, Inc. v. Gaddy(2008) 159 Cai.App.4th 1292, 1307-1308.)
3 Here, the points to be addressed in the supplemental brief include the City's
4 newly asserted legal arguments relating to injunctive relief, the standard of review
5 based upon the declarations submitted in this case, the significance of the evidence of
6 the facts and circumstances surrounding the representation of parties.
7 I declare under penalty of perjury under the laws of the State of California that
8 the foregoing statements are true and correct and that this Declaration was executed
9 this 22no day of October, 2009, in Monterey, California.
10
11
12
13
14
15
Molly E. Erickson
16 [PROPOSED] ORDER
17 It is hereby ordered that Plaintiff may file PLAINTIFF'S SUPPLEMENTAL BRIEF
18 IN RESPONSE TO CITY'S REPLY BRIEF AND EVIDENTIARY OBJECTIONS.
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Dated:-----------
CASE No. M99513
Judge of the Superior Court
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APPLICATION FOR ORDER GRANTING LEAVE TO FILE SUPPLEMENTAL
RESPONSE BRIEF BY PLAINTIFF: [PROPOSED! ORDER
0290
0
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
0
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COUNTY OF MONTEREY
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Plaintiff,
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v.
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14 Defendants.
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MILLER V, CITY OF CARMEL BY -THE-SEA
CASE No. M99513
I
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Case No. M99513
Time: 8:45a.m.
Dept: 4 (Hon. Larry E. Hayes)
0291
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF MONTEREY
of 18 and not a party to the within action. My business address is 479 Pacific Street,
5 On October 22, 2009, I served the foregoing documents described as follows:
AND RICHARD GUILLEN'S DECLARATION
7
PLAINTIFF'S SUPPLEMENTAL BRIEF IN RESPONSE TO CITY'S REPLY
8 BRIEF AND EVIDENTIARY OBJECTIONS
9 APPLICATION FOR ORDER GRANTING LEAVE TO FILE
SUPPLEMENTAL RESPONSE BRIEF BY PLAINTIFF;
10 [PROPOSED] ORDER
12 (X) sending via facsimile machine pursuant to Rule 2.306. Said documents were
sent to the below listed party(s). The fax number I used was (831) 373-0242.
13 The facsimile machine I used complied with Rule 2.302 and no error was
reported by the machine.
14
15
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17
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( X ) by placing a true copy thereof enclosed in a sealed envelope and addressed as
shown below, and placing the envelope for collection and mailing on the date
and at the place shown below following our ordinary business practices. I am
readily familiar with this business practice for collecting and processing
correspondence for mailing. On the same day that the correspondence is placed
for collection and mailing, it is deposited in the ordinary course of business with
the United States Postal Service in a sealed envelope with first class postage
fully prepaid:
Suzanne Solomon
20 Liebert Cassidy Whitmore
153 Townsend St Ste 520
21 San Francisco, CA 94107
22 Facsimile number:
( 415) 856-0306
23
24 Executed on October 22, 2009, at Monterey, California. I declare under penalty
of p e ~ u r y under the laws of the State of California that the above is true and correct.
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26
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28
CASE No. M99513
Olga Mikheeva
2
0292

From" 0)0242 Page: 3117 Date: 10122/200 1 AM
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
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COUNTY OF MONTEREY
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Plaintiff,
v.
. 13 DOES 1 through 100,
14 Defendants.
- - - - - - - - - - - - - - - - - - - - - - ~ '
Case No. M99513
Time: 8:45 a.m"
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PLAINTIFF'S SUPPU!MENTAL BRIEF IN RESPONSE TO
MILLER V" CITY OF CARMEl-llY-Tlie-SEA
CAse No. M99513
P!.AINTII'F'$ SUPPLEMENTAL BRIEF IN RESPONSE TO
'" CITY'S REPLY BRIEF AND EVIOENllARY 08JEC110NS
0293
From.O 1242
Page: 4117
AM
1 INIROQUCIION
2 On October 15, 2009, the City filed a ten-page Reply Brief and a declaration of
3 Richard Guillen. The Reply Brief does not accurately state or address the applicable
4 legal test, and the City's papers raise new issues and information. Plaintiff Jane Miller
5 submits this response to the City's newest claims.
6
7
a
9
L
FOR THE CllY DID NfJ CLAIM A(aOffLlCT,
0 U _ _u_ LEGAL OPTIONS AJLABLE _ .
We start with the City's claim, first made in the Reply Brief. that the City's seven-
year silence with regard to the alleged conflict i$ excused. The claim is that "[b}efore
10
this lawsuit was filed in June 2009, the City could not have moved to disqualify Mr.
11
Stamp.' (Reply Brief, p. 10, lines 8-9.) The City's argument i$ based only upon a direct
12
misrepresentation of the authority cited by the City. The City says that The Rutter
13
Group's Professional Responsibility Practice Guide (2005 ed.} states that a "motion to
14
disqualify conflicted counsel cannot be brought where there is no pending litigation."
15
(Reply Brief, p. 10. lines 5-6.) The City omits the following sentence, which states the
16
applicable rule: 'lo this situation. a separate lawsuit to enjoin the representation is
17
generally aopropriate.'" (Machado v. Superior Court (2007) 148 Cai.App.4th 875, 881,
18
quoting The Rutter Group Practice Guide [2005 ed.], underlining added.)
19
20
The City's argument refers to Machado as the authority cited by The Rutter
Group (Reply Brief, p. 10, line 8). (In fact, Machado cites The Rutter Group.) M13Chado
21
directly addressed situations where a non-party seeks to file a collateral motion in an
22
ongoing case in order to assert a conflir::t claim. The Court of Appeal in Machado
23
upheld the right to do so. The holding in Machado is that a person does not have to be
24
a party in a lawsuit in order to be able to seek and obtain injunctive relief to prevent a
25
conflict. It is apparent from Machado and from The Rutter Group citation that the City
26
did not have to be a defendant in a pending lawsuit in order to litigate a claimed conflict
27
and obtain injunctive relief.
28
MILLERV. C!T'YOFCARMEl-BY-THE..SEA
CASe; No. M99513
1
PlAINTIFF'S SUPPlEMENTAl BRIEF IN ReSPONSE W
CITY'S REI'l V BRIEF AND E\IIOENTli\RY OBJ!!CTION$
0294
From 00242 Page: 5117 Date: 1012212aO ,2 AM
1 On page 6 of its Reply Brief, the City cites Morrison Knudsen Corp. v. Hancock,
2 Rothert & Bunshoft LLP (1999) 69 Cai.App.4th 223, which is also cited by Machado
3 ( 148 Cai.App.4th at p. 881 ). In Morrison, the entity claiming a conflict was not a party in
4 litigation, but filed its own action asserting, among other claims, a right to an injunction
5 to prevent a conflict from taking place. (69 Cai.App.4th 223, 228.) The injunction WaS
6 issued (kL, at p. 229) and was upheld on appeal (id., at p. 238).
7 The City's newly stated rationale for not raising a claim of conflict is supported by
8 no law and no authority. The law is exactly the opposite of what the City has claimed.
9 For seven years, the City did not assert a claim of conflict, or even raise the issue. The
10 City's claim that it had no legal remedy is without any merit.
11
12
13
14
15
11
THE CITY MISSTATES THE APPLICABLE LEGAL TESTS.
The Citv Misagplies Farris in its Evidentiary Obiect!ons and its Rep!v Brief,
Throughout its evidentiary objections and in its Reply Brief, the City takes a
narrow holding of one part of Farris v. Fireman's Fund Insurance Company (2004) 119
16
caJ.App.4th 671, and tries to create an entire body of law out of it. Farris is an
17
Insurance coverage case which states that in determining "whether there Is a
18
connection between the two sucoessive representations" the Court's investigation may
19
not include an 'inquiry into the actual state of the lawyer's knowledge' acquired during
20
the lawyers' representation of the former client" (Farris, p. 679; see City's Reply Brief
21
{pp, 2, 4) and City's Evidentiary Objections (passim).) The City misreads this narrow
22
holding on this single point as a broad iron-clad rule that prevents the Court from
23
considering information from declarants about the former representation. That is not
24
25
26
27
the law.
Jhe AppliCable RulE!
The test for successive representation has two elements. The first element is
whether the attorney was personally and directly involved in providing legal services to
28
MII.LER V. CITY OF CARMEL-llYTHe..SEA
CASE No_ M99513
2
PLAir:lTIFF'S SUPPLEMENTAL BRIEF IN RESPONsE TO
CITY's RI!PI.Y BRIEF AND EVIDENTIARY OBJECTIONS
0295
From: 0 242 Page: 6117 Date: 101221200: AM
1 the former client. (Faughn v. Perez (2006) 145 Cai.App.4th 592, 603.) The second
2 element is whether a substantial relationship exists between the former and current
3 representations. (Ibid.) The second element is at issue on this motion.
4 In considering the second element, the Court's role Is to determine whether the
5 party seeking disqualification has shown "that the matters embraced in the pending suit
6 ... are substantially related to the matters or cause of action wherein the attorney
7 previously represented ... the former client" (Jessen v. Hartford (2003) 111
8 Cai.App.4tl1698, 707, citing River West, Inc. v. Nickel (1987) 188 Cai.App.3d 1297.)
9 The Courts emphasize the "pragmatic" definition of the words substantial relationship
10 by focusing upon the nature of the former representation: whether the subject matters
. 11 facts, or issues are substantially the same (Jessen, p. 708, citing Ahmanson v.
12 Salomon B r o t h e ~ (1991) 229 Cai.App.3d 1445, 1453). The Fifth District Court of
13 Appeal (Justice Dibiase, acting P J.) held that the existence of a substantial
14 relationship" is determined by reference to the similarity between the legal problems
15 Involved In the former representation and the cunrent representation (Jessen, p. 709).
16
17
18
19
20
21
Thus, successive representations will be 'substantially
related" when the evidence before the trial court supports a
rational conclusion that information material to the
evaluation, prosecution, settlement, or accomplishment of
the former representation given its factual and legal issues is
also material to the evaluation, prosecution, settlement or
accomplishment of the current representation given its
factual and legal issues.
22
(Jessen, p. 713.) To be material." the information from the former representation must
23
be found to be directly at issue in, or have some critical importance to. the second
24
representation. That material information must be confidential infonna!iQQ. (Fanis v.
2
5
Fireman's Fund Insurance Company (2004) 119 Cai.App.4th 671 at 680, in which
26
Justice Dibiaso clarified his 2003 holding in Jessen.) The Court's inquiry
27
28
focuses upon the general features of the matters involved
and inferences as to the likelihood that confidences were
MILLER V. CtTY OF CARMEL-BY-THE-SEA
CASE No. M99513
3
PLAJNllFF'S SUPPLEMENTAL BRIEF IN RESPONSE TO
CITY'S RI!Pl V BRIEF AND EVIDENTIARY OBJECTIONS
0296
1
2
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From: 00242 Page: 7117 Date 2 AM
imparted by the former client that cotJid be used to adverse
effect in the subsequent representation." (Rest. 3d, Law
Governing Lawyers, 132, com. d(lli); see Koch v. Koch
Industries (D. Kan. 1992) 798 F. Supp. 1525, 1536 [the
proofs on a motion to disqualify coynsel in a sybsegueot
representation case should enable the court 'to reconsttuct
the attorney's representation of the forrper client. to infer
what confidential infonnatign could have been imparted in
that representation. and to decide whether that information
has any relevance to the attorney's representation of the
current client') .... )
(Jessen, p. 681, underlining added.) Disqualification depends upon the proof of the
strength of similarities between the legal problem involved in the former representation
11
12
13
14
15
16
17
18
19
20
21
22
and the legal problem involved in the current representation. (ld., at p. 708.)
Thus, the procedure the Court follows to determine whether a substantial
relationship between the former and current representation exists is this:
1 . To review the proofs on the motion to reconstruct the facts and
circumstances of the former representation,
2. To Infer what confidential information could have been shared
therein, and
3. To decide whether that information contains material confidential
information that would be relevant to the current representation.
In following this procedure, the Courts focus on the admissible evidence. The
Courts pay particular attention to the declarations of the individuals with personal
knowledge of the former representation, which helps the Court to reconstruct the
23
24
underlying facts and circumstances. (See, e.g., Farris, p. 606, fn. 6, p. 685, p. 686, fn.
14; Faughn, pp. 596-597; Morrison Knudsen Corp. v. Hancock, suprtJ, 69 Cai.App.4th
25
223, 236.) As the Fifth District Court of Appeal explained, it is not a "bright line'
26
standard, and "must be applied to individual cases by the exercise of the court's
27
considered judgment based in reason, logic, and common sense." (Jessen, p. 713.)
28
MILLER v, CrrY OF CAAME'L-BY'THE-8EI\
CAsE No. M99513
PUIINT!FF'S SUPPlEMENTAl. BRI!lF IN REsPONSE TO
CITY'S REPLY BRIEF AND EviDeNTIARY
0297
From: 00242 Page: 8/17 Date: 1012212oO 13 AM
1 Here, the declarations of City Administrators Schmitz and Kersnar, Personnel
2 O f f ~ e e r Pullen, Human Resources Manager Miller, and Miller's attorney Stamp- the
3 witnesses with personal knowledge of the former representation - provide the evidence
4 of the facts and circumstances of the former representation, including the following:
5 1. There is no materia! confidential information obtained from the former
6
7
representation that is applicable to Ms. Miller's claims. (Schmitz Decl., '!19:
Karsner Oecl., '!18; Pullen Decl., '[(9; Miller Dec!., 119: Stamp Deer., '[(84.)
8 2. The legal issues were different from the Miller issues. (Schmitz Oecl., '[( 3;
9 KersnarDecl., 111f3, 4; Pullen Decl., ft3, 6; MillerDecl., '!MI8.11-12;
10 Stamp Decl., '[('[( 19, 21, 22, 25, 26.)
11 3. The City's key decisionmakers in the former representation were different
12 then. (Schmitz Dec!.,'[( 7; Kersnar Dec!., '116; Stamp Dec!., '1124).
13 4. Stamp never advised the City on claims regarding forced retirement, or
14 claims of discrimination or gender-based favoritism, and there were no such
15 claims under the. previous City Administrators. (Schmitz Deer., '!13; Kersnar
16 Decl., '[(4; Pullen Dec1.,'[(3; Stamp Decl., 'II 80). Ms. Miller's Complaint on
17 file herein centers around those legal issues.
18 Citing Farris, the City argues that "It Is improper for a court to consider such
19 information (Reply Brief, p. 2, lines 9-10; seep. 2, lines 24-28; p. 4, lines 2-3, 18-20; p.
20 5, lines 810, 16-18). The City materially misreads and misapplies Farris.
21 .Q,. Application of the Substantial Relationship Test
22 1.. Farris v. Fireman's Fund Insurance Companv (2004)119 Cai.Apo.4th 671.
23 In Farrts, Jason Farris alleged bad faith and a breach of an insurance contract
24 issued by the insurance company. (Fanis, p. 676.) The company sought to disqualify
25 Farris's attorney due to his past work for the company on coverage issues involving 226
26 claim files from 1987 to 1997. (/d., at p. 677.) Unlike the present case, the insurance
27 company's senior employees who had personal knowledge testified that as part of the
28 former representation the attorney discussed company strategies on settlement,
MILI.ERV. CIT\' OF CIIRMEL-6YTHE-8EA
CAsE NO. M99513
5
PLAIN11FF'S SUF'i>I.EMENTAl BRIEF IN RE$PONSE TO
CITY's REI'LY BRIEF AND (;;\IIDCNTIARY OBJECTIONS
0298
From: 0 242 Page: 9117 Date: 101221200; AM
1 litigation, and claims handling in connection with coverage matters. (Farris, p. 677.)
2 The key evidence was the statements of company personnel and of the attorney
3 as to the legal problems involved in the former representation and the legal problems
4 involved in the current representation. {Farris, pp. 681-682.} The Court of Apoeal
5 focused on the direct evjdence in numerous declarations from key decision makers
6 stating thai they had discussed with [the attorney) [insurance company] practices,
7 including litigation and settlement strategies, in coverage matters." (Farris, p. 682, fn.
8 8.) The Court held that "the extensive knowledge derived from his pervasive
9 representation In coverage disputes required the attorney's disqualification in the bad
10 faith claim which was materially related to the coverage issues. (Farris, p. 682, fn. 8, p.
11 684.) The Court found that the evidence showed that the attorney was instrumental in
12 fonnulating coverage strategies and philosophies, trained senior claims personnel
13 about coverage matters, and that it was likely that some witnesses in the current action
14 would be senior claims personnel who former1y worked closely with the attorney in the
15 former representation of the insurance company. (Farris, p. 685.) It reversed the trial
16 court due to the trial court's reliance on "the actual state of the lawyer's knowledge as
17 evidenced by the attorney's own assertions that were not supported by any insurance
18 company declarant (Farris, p. 683, fn. 10; see Jessen. at p. 710}.
19 In dicta, the Court suggested that it "certainly can envision circumstances where
20 the passage of time might be shown to have eliminated a prior substantial relationship
21 due to such events as changes in corporate structure, tum over in management, and
22 the like." (Farris, p. 666.)
23 2. Faoohn v, Perez 12006! 145 Cai.App.4th 592.
24 In Faughn, the Couct of Apgeal considered declarations of three area claims
25 managers and of the general counsel employed by the party seekjng disaualjfication
26 (Faughn. p. 596). The Court carefully reviewed the declarations for evidentiary support
27 for the moving party's claims. The Court noted that numerous assertions made by the
28 moving party were unsupported or immaterial. (E.g., Faughn, p. 605, fn. 9 [no citation
MILLERV. CITY OF CAAMEL-flY-TMESEA
CASE No. M99513
6
t'LA1N11FF'S SUPPLEMENTAl. BRIEF IN RESPONSE TO
CITY'S REPLY BRieF AND EV!DENTllllff OBJE;CilONS
0299
From: 80242 Page: 10117 Date 10/aaoO 43 AM
1 to supporting evidence in the record], p_ 607 ["no such evidence is present in the
2 record'], p. 609("the record does not show that the information contained in that
3 [referenced] document is material to the present litigation in a way that gives plaintiffs
4 an advantage")-) The Court held that "without evidence to connect" the Issues in the
5 current case with those involved in the former cases, "we are unwilling to infer thatlt
6 exists: (Ibid.)
7 The City's Reply Brief tries to distinguish Faughn by arguing that the attorney in
8 that case had not previously provided legal services to the hospital, only to the parent
9 company. (Reply Brief, p. 6, line 26 top. 7, line 4.) That distinction is insufficient
1 0 because in Faughn the Court of Appeal applied the substantial relationship test used in
11 a successive representation situation involving the same client. (Faughn, pp. 602-603.)
12 In applying the test, Court reviewed the facts and circumstances of the prior
13 representation as shown in the admissible evidence, and determined that the moving
14 party had not met its burden under the test. (ld., pp. 610-611.) That test, and the
15 mandated consideration of relevant evidence, are applicable and binding on this Court
16
17
18
Mo'Bfon Knfsen Corporation v. Hancock. Bathed & Bunshoft LLP 119991
69 _i!(App.4_ 223.
In Morrison, another insurance case, the Court of Appeal held that the
successive representation test applied (Morrison, pp. 233-234), because although the
19
law firm had not previously represented Morrison (id., at p. 227), it was monitoring
20
counsel for Morrison's insurance company for professional liability claims (id . at p.
21
235). Among the claims monitored by the law firm was one involving whether Morrison
22
had adequately experienced personnel on the job and whether soils issues were
23
misanalyzed, resulting in the placement of a clay pad in an unstable location. The
24
current matter involved Morrison's approval of "severely corrosive" sand for a road
25
project affecting metal culverts. (ld., at p_ 235.)
26
27
The Court carefyi!V reviewed declarations offered by both sides (Morrison, pp.
235-236), and found persuasive the declarations of Morrison's key decision makers with
28
MILI.ER V. CITY OF CARMEL.SY THE-5EA
CASE NO. M99513
7
Pi..AJNllFF'S SUPPI.I!MEN'I'AL BRIEF IN RESPONSE TO
CITY'S REP I. Y BRIEF AND EVlOENTIAAY OBJiiCTIONS
0300
From: Page: 11117 Date: 1012212rO ,4 AM
1 actual who stated that the law firm had considerable exposure to Morrison's
2 litigation policies and strategies (id., at p. 236) and to Morrison's officers, advised on the
3 value of cases, and participated in settlement discussions (id., at p. 235). The Court
4 also foL!nd that the firm's ongoing work as monitoring counsel gave it privileged
5 information about Morrison's financial condition. For all these reasons, the Court held
6 that a substantial relationship existed, and the firm was disqualified (id. at p. 238).
7 4. The Present Actjon.
8 The City's moving papers do not provide any competent evidence and fall short
9 of the showing required to cany the City's burdens of proof and persuasion. Plaintiffs
1 0 evidentiary objections filed October 8, 2009 should be sustained for each of the
11 reasons stated therein.
12 The declarations of Schmitz, Kersnar, Pullen, Miller, and Stamp provide the
13 factual information required for the Court's inquiry under the Jessen test as clarified by
14 Fanis. Those declarations are based on personal knowledge of the former
15 representation, and establish critical differences between the former representation and
. 16 the current representation. The evidence shows that Stamp was not privy to any
17 confidential strategy, interpretation, or other confidential Information material to the
18 legal issues in Ms. Miller's case, or that would provide an unfair advantage in Ms.
19 Miller's case. Unlike the evidence in Farris and Monison, the four senior employees
20 with personal knowledge all agree with the attorney that the former matters provided no
21 confidential material infom1ation applicable to the current matter.
22 Unlike the evidence in Fanis, the evidence presented on this motion shows that
23 Stamp's former representation of the City was neither pervasive nor recent. The former
24 representation was intermittent and on a case-by-case basis, and the key decision
25 makers are not the same. (Kersnar Decl., '116, Schmitz Decl., 117, Stamp Decl., 'lf24.)
26 Unlike the private Insurance company contracts, private company litigation strategies,
27 and confidential financial information at issue in Fanis and Morrison, the City policies"
28 at Issue here are public documents, publicly adopted, publicly reviewed, and publicly
MILLER V. CI'!Y OF CARMaBYntE-SEA
CAS!'cNO. M99513
8
PLAINTIFF'S SU!'PL.EM!NTAL BRieF IN RESPONSE TO
CITY'S REPLY BRIEF AND EVIDENTIARY0BJI!CT!ON$
0301
0
. n242 P 1"17 Date. A AM
From J age. "' -"L"\,1
1 administered. They are not secret or confidential In any sense.
2 Unlike the evidence in Morrison, Stamp was never privy to any discussions with
3 key City decision makers regarding any employment litigation, and the former personnel
4 are no longer with the City in any event. Stamp does not monitor claims against the
5 City. He has no confidential information regarding City finances, which are public. The
6 City is a public agency, not a private company.
7 The burden is on the party seeking disqualification, as explained in our ear1ier
8 briefing. To determine whether that party has carried Its burden, the Court is to
9 carefully review the admissible evidence for facrual support for each party's claims.
10 Here, the proofs on the disqualification motion establish that the facts and
11 circumstances of the former representation did not provide material confidential
12 information relevant to Ms. Miller's case. The City has not carried its burdens: the
13 burden of proof and the burden of persuasion. Substantial evidence supports the
14 denial of the motion to disqualify counsel.
15 CONCLUSIQN
16 For the reasons states above and in Jane Miller's opposition to the motion, and
17 in the interests of justice, the motion to disqualify counsel should be denied.
16
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28
MII.LER V. CITY OF CARMEI.-BY-THe-SEA
CASE NO. M99513
Respectfully submitted,
eLlA ---=--.4--h= -
Michael W. Stamp
Attorneys for Plaintiff, Jane Kingsley Miller
9
PLAIN'TIFF'S SUPPlEMeNTAL BRIEF IN RESPONSe TO
CITY'S REPlY BRIEF AND EW>E!mARY OBJECTIONS
0302
From: 80242 Page: 13/17 Date:
Telephone: (631} 373-1214
4 Facsimile: (631) 373-0242
6
7
8
9
COUNTY OF MONTEREY
10
11
12
Plaintiff,
v.
Defendants.
-----------------------'
Case No. M99513
EVIDENTIARY OBJECTIONS TO CITY'S
REPLY BRIEF AND RICHARD GUILLEN'S
DECLARATION
Time: 8:45 a.m.
Dept.: 4 (Hon. Larry E. Hayes}
14
15
16
17
18
19
selected portions of the City's Reply Brief and the Declaration of Richard Guillen filed
20
October 15, 2009.
21
22
In the City's Reply Brief, the Cily continues its practice of making unsupported
factual statements in the body of the argument, without supporting them with evidence.
23.
In evidentiary objections, Plaintiff Miller previously pointed out that same basic defect by
24
the Cily in the City's moving papers. The City did not respond to the objection, but
25
instead repeated the tactic in the City's reply brief. Thus, Plaintiff raises the objection
26
again in response to the City's Reply Brief, and cites the appropriate authority.
27
28
MILLER V. CITY Of
CAse No. M99513
1
EV!DEN'I'lARY 08JECT10NS TO
CITY'S REPLY Bf'IIEF ANO GuiLLEN'S DECLARATION
0303
From, <0 '42 Page: 14117 Date: 10122120: AM
2 OBJECTION NO, 1
3 Statement objected to: In the City's argument, the CHy states that ' ... the City
4 has a tetter that Mr. Stamp wrote to the then Pel'$0nnel Director Jeny Pullen, copying
5 then-City Manager Doug Schmitz, enclosing the CHy's harassment policy with Mr.
6 Stamp's handwritten comments on and revisions to the policy." (City's Reply Brief, p. 3,
7 lines 19-23.)
8 Grounds for objection; The City cites no evidence in the record for its
9 statements. Matters stated in the argument but not supported by verified evidence
10 (declarations, in this case) cannot be presumed true, and are not admissible evidence.
11 (Smith, Smith, & Kring v. Superior Court (1997) 60 Cai.App.4th 573, 578.)
12 EVIDENTIARY OBJECTIONS TO THE GUILLEN DECLARATION
13 OBJECTION NO. 1
14 Statement obiected tp: "In August 2006, Mr. Stamp emailed me that he
15 represented Margaret Pelikan, who at that time was employed as the City's Library
16 Director. Mr. Stamp stated in the email that Ms. Pelikan was turning 55 In June and
17 that she would like to retire with the golden handshake and would like to receive paid
18 leave and her annual performance bonus." (Guillen Declaration, p. 4, lines 21-24.)
19 Grounds for objection: Mr. Guillen's characterization of the email from Stamp is
20 not accurate, and is hearsay. The actual email is Exhibit 6 to the Guillen Declaration.
21 The email makes no mention of the "golden handshake, mentions a possible release
22 of claims." and seeks, inter alia, 18 months' salary and benefits to be paid by the City.
23 The characterization by Guillen is undeniably inaccurate.
24 QBJECTION NO.2
25 Statement objected to: "In February 2008, Mr. Stamp contacted me by email
26 stating that he represented Sandy Farrell, who was working as an Executive A&aistant
27 for the City, and that he would like to meet with me to discuss her employment.
28 Mr. Stamp conveyed to me that Ms. Farrell wanted to retire and wanted the golden
MILLEFI V. CilYOF CARMEL-BY-THE-SeA
CASE No. M99513
2
EviOENTIARY OB.iECna-15 TO
CITY'S REP!.'!' 9RIEF ANO GuiLLEN'S DECI.ARATION
0304
From: 00242 Page: 15117 Date: 10/221200 15 AM
1 handshake." (Guillen Declaration, page 5, lines 1a-21.) The statement purports to be
2 what Mr. Guillen was told in an email dated February 19, 200a. and which is attached
3 by the City as Exhibit a to the Guillen declaration.
4 Mr. Guillen's characterization of the email is hearsay (Evid. Code, 1200) and
5 misleading. Mr. Guillen's testimony inserts this sentence Into the email: "Ms. Farrell
6 wanted to retire and wanted the golden handshake" (which is not in the email and was
7 not communicated). He uses that made-up sentence to take the place of the actual
8 text, which Is much more prosaic: "I am available to come to your Office, or to meet
9 here in Monterey if that is more convenient. (See Exhibit a to the Guillen declaration.)
10 OBJECTION NQ, 3
11 Material oblected to: Photocopy of Cannel Pine Cone newspaper article attached
12 as Exhibit 9to the Guillen Declaration. (See Guillen Declaration, p. 6, lines 5-6.)
13 Grounds for objection: The article referred to in the Cannel Pine Cone by Mr.
14 Guillen is double hearsay. It is a report in a newspaper of what Mr. Guillen may or may
15 not have said out of Court. Mr. Guillen is offering for the truth of the matter a public
16 relations comment as a prior consistent statement by Mr. Guillen. (Tibbetts v. Van De
17 Kamp (1990) 222 Cai.App.3d 389, fn. 5 rGenerally, newspaper articles are
18 inadmissible to prove their contents because of the hearsay rule1; see also Evld. Code
19 791 [requirements for admission of consistent statement].)
20
21
22
23
24
25
26
27
28
M I L L E ~ V . CfTYOF CiiRMEL-BY-TMI:SEA
CASE NO. M99513
3
EVJO!'NTIAR'Y 0BJSCTIONS TO
. Crrv's REPLY BR!SF AND GlJILI.EN'S DECI.ARA TION
0305
From: 8() '42
Page: 16117
Telephone: {831) 373-1214
4 Facsimile: (831) 373-0242
6
7
8
9
COUNTY OF MONTEREY
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiff,
v.
DOES 1 through 100,
Defendants.
MILI.ERV. CITY OF CARMEL-BY-THE-SEA
CASE No. M99513
Case No. M99513
Complaint filed June 17,2009
CERnFICATE OF SERVICE
Date: October 23. 2009
Time: 8:45 a.m.
f Dept.: 4 {Hon. Lany E. Hayes)
CeRTIFICATE OF SERVICE
0306
1
2
From: 80 242 Page 17117 Date: 1012maO AM
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF MONTEREY
of 18 and not a party to the within action. My business address is 4 79 Pacific Street,
5
6
7
8
9
10
On October 22, 2009, I served the foregoing documents described as follows:
EVIDENTIARY OBJECTIONS TO CITY'S REPLY BRIEF
AND RICHARD GUILLEN'S DECLARATION
PLAINTIFF'S SUPPLEMENTAL BRIEF IN RESPONSE TO CITY'S REPLY
BRIEF AND EVIDENTIARY OEIJECTIONS
APPLICATION FOR ORDER GRANTING LEAVE TO FILE
SUPPLEMENTAL RESPONSE BRIEF ElY PLAINTIFF;
[PROPOSED] ORDER
12 (X)
13
14
(X)
15
16
17
18
19
sending via facsimile machine pursuant to Rule 2.306. Said documents were
sent to the below listed party(s). The fax number I used wes (831) 373-0242.
The facsimile machine I used complied with Rule 2.302 and no error was
reported by the machine.
by placing a true copy thereof enclosed in a sealed envelope and addressed as
shown below, and placing the envelope for collection and mailing on the date
and at the place shown below following our ordinary business practices. I am
readily familiar with this business practice for collecting and processing
correspondence for mailing. On the same day that the correspondence is placed
for collection and mailing, it is deposited In the ordinary course of business with
the United States Postal Service in a sealed envelope with first class postage
fully prepaid:
Suzanne Solomon
20 Liebert Cassidy Whitmore
153 Townsend St Ste 520
21 San Francisco, CA 94107
22 Facsimile number:
23
(415) 856-0306
24 Executed on October 22, 2009, at Monterey, California. i declare under penalty
of petjury under the laws of the State of California that the above is true and correct
25
26
27
28
MILI.ER V. CITY OF CARMEL-6YTHESEA
CASE No M99!,113

2
CERTIFICATE OF S1'MCE
0307
From: 0 242 Page: 1117 Date: 10/22/24:
Telephone: (831) 373-1214
4 Facsimile: (831) 373.-0242
6
7
8
COUNTY OF MONTEREY
Case No. M99513
APPLICATION FOR ORDER GRANTING
LEAVE TO FILE SUPPLEMENTAL
RESPONSE BRIEF BY PLAINTIFF;
[PROPOSED] ORDER
Time: 8:45 a.m.
17 APPLICATION FOR ORDER GRANTING LEAVE TO FILE
18 RESPONSE PAPERS BY PLAINTIFF
19 I, Molly E. Erickson, declare as follows:
20 I am an attorney at law, licensed to practice before this Court. I am employed In
21 the Law Offices of Michael W. Stamp. The statements made In this Declaration are
22 based upon my own knowledge.
23 Plaintiff Jane Kingsley Miller makes this application to allow her to file a
24 supplemental response brief based upon new arguments, claims, and authorities cited
25 by Defendant in the Defendant's Reply Brief filed October 16, 2009. The appliCation is
26 made on the grounds that points raised by the moving party (Defendant City) for the
27 first time in a reply brief need not be considered by the Superior Court, but can be
28
1
MILLER V. CITY OF CARMEL -BYTHESeA AI'I'I.ICATION FOR ORDER GRANTING l..eA\11! TO FILE SUPPLEMENTAL
CASe No. M99513 RESPONS!i BRIEF BY [PRoPosED) ORDER
0308
From: eO J242 Page: 2117 Date: 1012212ooO AM
1 considered if the Court gives the responding party an opportunity to respond. (Aifiant
2 Ins. Services, Inc. v. Gaddy(2008) 159 Cai.App.4th 1292, 1307-1308.)
3 Here, the points to be addressed in the supplemental brief include the City's
4 newly asserted legal atguments relating to injunctive relief, the standard of revieW
5 based upon the declarations submitted In this case, the signifiCance of the evidence of
6 the facts and circumstances surrounding the representation of parties.
7 I declare under penalty of under the laws of the State of California that
8 the foregoing statements are true and correct and that this Declaration was executed
9 this 22"" day of October, 2009. in Monterey, California.
10
11
12
13
14
15
16
Molly E. Erickson
[PROPOSED] ORDER
17 It is hereby ordered that Plaintiff may file PLAINTIFF'S SUPPLEMENTAL BRIEF
18 IN RESPONSE TO CITY'S REPLY BRIEF AND EVIDENTIARY OBJECTIONS
Juoge of the Superior Court
2
MILU!RV. CITY OF CiiRMELBYTHSeA FOR OROER GRAWnNG TO flU! SUPPI.EMEHTAL
CASE No. M99513 RESI'ONSI: BRIEF BY PLAINTIFF; [PROPOSED)
0309
1
2
3
4
5
6
7
8
9
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15

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16
17
18
19
20
21
22
23
24
25
26
27
28
0
rbolanos@1cw1egal.com
sscilomon@lcwlegal.com
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
0
..
..
FILED
OCT Z8 2009
CONNIE MAZZEI
CLERK OF THE SUPERIOR COUR1
M. PI JSLP.' DEPlJIY
COUNTY OF MONTEREY

Plaintiff,
v.
Defendant.
Case No. M995l3
ORDER SEALING DOCUMENTS FOR IN
CAMERA REVIEW PURSUANT TO
HEARING ON MOTION BY DEFENDANT
Date:
Time:
Dept:
Judge:
October 23, 2009
8:45a.m.
4
Hon. Larry E. Hayes
The motion by Defendant City of Carmel-by-the-Sea to disqualify Plaintiff's counsel
came on regularly for hearing in Department 4 of the court, the Honorable Larry E.
Hayes presiding. Having considered the papers as well as the oral argument of counsel at the
hearing, the Court orders the City to file under seal the attorney-client privileged documents
referenced in the Declaration of Heidi Burch supporting the City's motion.
IT IS SO ORDERED.
Dated: Qc.( l<d. )Do 9
/

109503.1 CA200-()l4
- 1 -
ORDER RE FILING DOCUMENTS UNDER SEAL
0310
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7
8
9
10
ll
12
l3
14
15
16
17
18
19
20
21
22
23
24
Suzarme Solomon, BarNo. 169005
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
CITY OF CARMEL-BY -THE-SEA
FILED
OCT 2 8 2009
CONNIE MAZZEI
CLERK OF 'THE SUPERIOR COURT

M. PUSLEV
COUNTY OF MONTEREY
Plaintiff,
v.
Defendant.

COURT ORDER
Case No. M995l3
SEALED DOCUMENTS FOR IN CAMERA
REVIEW BY JUDGE HAYES
REGARDING MOTION BY DEFENDANT
Date:
Time:
Dept:
Judge:
October 23, 2009
8:45a.m.
4
Hon. Larry E. Hayes
This envelope contains documents filed under seal, as ordered by Judge Larry Hayes, for
the Court's in camera review while considering the Motion to Disqualify Plaintiffs Counsel filed
by Defendant City of Carmel-by-the-Sea in this action.
25 Dated: October 23, 2009
26
27
28
109500 I CA200.014
- 1 -
0311
1
2
3
4
5
6
7
8
9
10
UJ
11
"'50
0 "
::::!:'i:>lll,._.

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15
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16
17
18
19
20
21
22
23
24
25
26
27
28
0
0
PROOF OF SERVICE
ORDER SEAUNG DOCUMENTS FOR IN CAMERA REVIEW PURSUANT TO
HEARING ON 1\oiOTION BY DEFENDANT CARMEL-BY-THE-SEA TO DISQUAUFY
PLAINTIFF'S COUNSEL
0
0
Michael W. Stamp
Monterey, CA 93940
(831) 373.0242
VIA OVERNIGHT MAWCOURIER- CCP 1013(e):
By placing a true copy thereof enclosed m a sealed envelope(s), addressed as above, and placing
with my ftrm's business practice of collection and processing of correspondence for overnight mail
by the overnight mail carrier to receive documeniS, with delivery fees paid or provided for, that
VIA FACSIMILE -CCP lOB( e); CRC 2008:
By arranging for facsimile transmission f'1"om facsimile number ( 415) 856-0306 to the above listed
facsimile number(s) prior to 5:00p.m. The facsimile transrnission(s) was reported completed
without error.
I declare under penalty ofpetjury that the foregoing is true and correct and of my personal
knowledge.

99081.1 CA200-014 1
ORDER SEALING DOCUMENTS FOR IN CAMERA REVIEW PURSUANT TO HEARING ON MOTION BY
DEFENDANT CARMEL-BY-THE-SEA TO DISQUALIFY PLAINTIFF'S COUNSEL
0312
w
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>-!15
93w g

"'"'"

::l
0
1 Richard C. Bolanos, Bar No. 111343
rbolanos@1cwlegal.com
2 Suzanne Solomon, Bar No. 169005
ss61omon@lcwlegal.com
3 LIEBERT CASSIDY WHITMORE
4 !53 Townsend Street, Suite 520
5
Telephone: (415) 512-3000
6 Facsimile: {415) 856-0306
7 Attorneys for Defendant
8
0/
FILED
0CT282Q
CONNIE MAZZEI
CLERK OF lHE SUPERIOR COlJR;
M. PUSLEY DEPliTY
9
10
COUNTY OF MONTEREY
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff,
v.
Defendant.
Case No. M99513
Date:
Time:
Dept:
Judge:
October 23, 2009
8:45a.m.
4
Hon. Larry E. Hayes
The motion by Defendant City of Carmel-by-the-Sea to disqualifY Plaintiffs counsel
came on regularly for hearing in Department 4 of the court, the Honorable Larry E.
IT IS SO ORDERED.
Dated: __...,.()c'-'=-..(----'lJ=r;;-,
7
,_, _)L:o-==..=-9
109503.1 CA200-014
- 1 .
ORDER RE FILING DOCUMENTS UNDER SEAL
0313
2
3
4
5
6
7
8
9
10
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12
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13
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14

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Mja.:z
15
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16
17
18
19
20
21
22
23
24
25
26
27
28
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
FILED
OCT28mJ
CONNIE MAZZEI
M. pUSlE'f DEPUTY
COUNTY OF MONTEREY
Plaintiff,
V.
Defendant.
FILED UNDER SEAL PURSUANT TO
COURT ORDER
Case No. M99513
SEALED DOCUMENTS FOR/N CAMERA
REVIEW BY JUDGE HAYES
REGARDING MOTION BY DEFENDANT
Date:
Time:
Dept:
Judge:
October 23, 2009
8:45a.m.
4
Hon. Larry E. Hayes
This envelope contains documents filed under seal, as ordered by Judge Larry Hayes, for
the Court's in camera review while considering the Motion to Disqualify Plaintiffs Counsel filed
by Defendant City of Carmel-by-the-Sea in this action.
!09500.1 CA200-<J14
- I -
0314
0
1 Riohm:d C, Bolanos, Bar No. 111343
roolll1lOS(ii}lcw!llgal.CO!ll
2 Suzanne Solomon, Bar No. 169005
ssolomoil@lcwlegal.oom .
3 IJBBBR.T CASSIDY WHITMORE
A Ptofeeaional Law ColpOrlllion
4 153 TOW!llle:nd Street, Snite 520
SanPrllllcisco, CA 94107
5
(415) 512-3000
6 Facsmn1e: ( 415) 856-0306
1 A!lomaytl.for Defendant
CITY OF CARMEL-BY-THB-SEA
0
FILED
NDV 022M9
CONNIE MAZZEI .

8
9
10
SUPERIOR COURT OF THE STATE OF CALlFOR:NIA
COUNTY OF MONTEREY
16
17
18
JANE KINGSLEY MDLBR,
Plainl:ifl;
y,
CITY OF CARMBL-BYTHE-SEA ll!ld
DOES I through 100, inclur<ive,
Defendant.
Case No. M99Sl3
NOTICE OF ENTRY OF AMENDED
CAMBRI.I REVJEWPURBUANT TO
BEARING ON MOTION BY DEFENDANT
CITY 011' CARMJLL.BYTBE-SEA TO
DISQUALIFY PLAINTD'F'S COUNSEL
Dare:
Time:
Dept:
OctobBr 23, 2009
8:45a.m.
4
191------------------------
Judge: Bon. Larry E. Hayes
20
TO THE COURT AND TO ALL PARTIBS OF RECORD:
21
22
23
24
PLBAS:S TAKE that the Court eotered the attscbed Order in the above-entitled
matter on October 30, 2009 regm:ding Defendant's Motion to DisqualifY Plaintlff's Counsol in
tbis actiOn. A truo and correct oopy of !be Court's order ia incotporated herein as Exhibit "A".
25 Dallld: November 2, 2009
26
27
28
110411,1 CAlllll-014
NOTICE OF 'BN'TRY OF AMBNDBD ORDBR
0315
I
2
3
4
5
6
7
8
9
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10
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17
18
19
20
21
22
23
24
25
26
27
28
0
Suzanne Solomon, BarNo. 169005
San Francisco, CA 941 07
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
0
COUNTY OF MONTEREY
SALINAS DIVISION
Plaintiff,
V.
Defendant.
Case No. M99513
NOTICE OF ENTRY OF AMENDED
Date:
Time:
Dept:
Judge:
October 23, 2009
8:45a.m.
4
Hon. Larry E. Hayes
TO THE COURT AND TO ALL PARTIES OF RECORD:
PLEASE TAKE NOTICE that the Court entered the attached Order in the above-entitled
matter on Oetober 30,2009 regarding Defendant's Motion to Disqualify Plaintiffs Counsel in
this action. A true and correct copy of the Court's order is incorporated herein as Exhibit "A".
Dated: November 2, 2009 LIEBERTCA
NOTICE OF ENTRY OF AMENDED ORDER
0316
0 0
EXHIBIT A
0317
l
2
3
4
5
6
7
8
9
10
11

12

!3 .
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!4

gjo.:a
15
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:::;
16
17
18
19
20
21
22
23
24
25
26
27
28
0
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
0
FILED
OCT 2 8 2009
COUNTY OF MONTEREY
Plaintiff,
v.
DOES I through 100, inclusive,
Defendant.
Case No. M99513
Date:
Time:
Dept:
Judge:
October 23, 2009
8:45a.m.
4
Hon. Larry E. Hayes
The motion by Defendant City of Carmel-by-the-Sea to disqualif'y Plaintiff's counsel
came on regularly for hearing in Department 4 of the above-entitled court, the Honorable Larry E.
IT IS SO ORDERED.
Dated:
0318
1
2
3
4
5
6
7
8
9
10
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11
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14

15

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16
17
18
19
20
21
22
23
24
25
26
27
28
0
0
PROOF OF SERVICE
NOTICE OF ENTRY OF AMENDED ORDER SEALING DOCUMENTS FOR IN
CAMERA REVIEW PURSUANT TO HEARING ON MOTION BY DEFENDANT
CARMEL-BY-THE-SEA TO DISQUALIFY PLAINTIFF'S COUNSEL
D
D
Michael W. Stamp
Monterey, CA 93940
(831) 373.0242
VIA MAIL-CCP 1013(a):
VIA OVERNIGHT MAIL/COURIER- CCP 1013(c):
with my finn's business practice of collection and processing of correspondence for overnight mail
VIA FACSIMILE- CCP l013(e); CRC 2008:
By arranging for facsimile transmission from facsimile number (415) 856-0306 to the above listed
facsimile number(s) prior to 5:00p.m The facsimile transmlssion(s) was reporred completed
without error.
I declare under penalty of perjury that the foregoing is true and correct and of my personal i
i
knowledge.
Executed at San Francisco, California on November 2, 2009.

9908 II CA200-014
[Ant:!Fea S. Bolnick]
NOTICE OF ENTRY OF AMENDED ORDER SEALING
PURSUANT TO HEARING ON MOTION BY DEFENDANT CARMEL-BY-THE-SEA TO DISQUALIFY
PLAINTIFF'S COUNSEL

Jane Kingsley Miller v. City of Carmel-By-The-sea (m99513) 2009 Volume I

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(CIT A CION JUDICIAL

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